Attallah v Doutre

[2007] NSWLEC 816

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Attallah v Doutre [2007]  NSWLEC 816

PARTIES:
APPLICANT
Noura Attallah

RESPONDENT
Arnold Doutre

FILE NUMBER(S):   21024  of       2007

CATCHWORDS:      Trees (Neighbours) :- damage to property

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CASES CITED:
Barker v Kyriakides [2007] NSWLEC 292

CORAM:       Brown CThyer AC

DATES OF HEARING:       13/12/07

EX TEMPORE DATE:         13 December 2007

LEGAL REPRESENTATIVES

APPLICANT
In person

RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Thyer AC

13 December 2007

21024 of 2007    Noura Attallah v Arnold Doutre

JUDGMENT

1. COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 by Ms Noura Attallah of 120 Thunderbolt Drive Raby concerning a silky oak (Grevillea robusta) (the tree) located close to the common boundary but on the adjoining property of Mr Arnold Doutre of 118 Thunderbolt Drive Raby.

1. The extemporaneous decision was given on site on 14 December 2007 and the judgment reflects the findings and the background documentation provided as part of the proceedings.

1. Ms Attallah’s application is to require the removal of the tree or for the tree trimmed back although at the hearing Ms Attallah stated that the trimming would not be acceptable, as it would still allow leaves to fall in her property.  Her concerns related to:

   the tree overhangs her property and drops leaves on her driveway and carport and requires continual cleaning up,
   the tree drops branches that could injure her and her dog
   the tree roots could damage the driveway and services.

2. Photographs were provided by Ms Attallah to show the leaves on the driveway and on the carport.

1. Mr Doutre states that the removal of the tree is not necessary although he would consider some pruning of the tree. 

1. The tree is located at the rear of Mr Doutre’s property and as Ms Attallah’s property is a battle-axe lot, the tree adjoins her access driveway, a garden area and a recently constructed carport attached to her dwelling.  The carport was constructed in May this year at approximately the same time as Ms Attallah occupied the property although she has owned the property since 2003.

2. The tree is some 12 – 14 m in height, mature and in good health with no noticeable structural faults or excessive amounts of dead wood that could be observed from the ground inspection.  The tree is an evergreen although there is usually a leaf drop in spring each year for this species.  A bougainvillea vine has grown into the tree from Ms Attallah’s property and occupies most of the canopy.  The vine has been cut from Ms Attallah’s property and is dead although the vine and the sharp needles remain in the tree canopy.

1. We accept that the dropping of leaves from the tree into Ms Attallah’s property falls within the circumstances set out in Barker v Kyriakides [2007] NSWLEC 292 where it states that:

   For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

   The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

2. We are also not satisfied that the roots of the tree would impact on the driveway to the garage on Ms Attallah’s property.  Currently, there is no evidence of any cracking or movement of the driveway in Ms Attallah’s property or adverse effects on any services that may be located in the area near the tree. 

1. For the reasons mentioned above, we are not satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants property, or (s 10(2)(a)) is likely to cause injury to any person (s 10(2)(b)) and as such, no orders can be made

1. For these reasons we have concluded that the application should be dismissed.

   ___________
   G T Brown
   Commissioner of the Court

___________
Peter Thyer
Acting Commissioner of the Court