Attallah v Doutre Summary

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

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.

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.

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

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

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.
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.

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.
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.

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

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

In this case, Noura Attallah filed an application against Arnold Doutre under section 7 of the Trees (Disputes Between Neighbours) Act 2006. Attallah, the applicant, sought the removal or trimming of a silky oak tree on Doutre's property, which she claimed was causing damage to her property by dropping leaves, branches, and potentially damaging the roots to her driveway and services. The matter was heard in the New South Wales Land and Environment Court. The applicant argued that the tree was overhanging her property, dropping leaves onto her driveway and carport, and posed a risk of injury from falling branches. Additionally, she expressed concern about potential root damage to her driveway and services.

The court was required to determine whether the tree was causing, or likely to cause, damage to Attallah's property or injury to any person. This involved assessing the evidence presented by both parties, including photographs of the leaves on Attallah's driveway and carport, and considering the impact of the tree on Attallah's property. The court also needed to consider whether the tree's presence constituted a nuisance under the Act, and whether the tree posed a significant risk of causing harm or damage. Furthermore, the court had to examine whether the tree's removal or trimming was necessary and proportionate to the harm caused.

The court found that the dropping of leaves from the tree onto Attallah's property did not constitute a basis for ordering the removal or intervention of the tree, as it fell within the circumstances set out in Barker v Kyriakides. The court accepted that urban residents should expect to maintain their property to enjoy the benefits of having trees in their environment. Additionally, the court was not satisfied that the tree's roots would impact Attallah's driveway or services, as there was no evidence of any cracking or movement of the driveway or adverse effects on any services. As a result, the court concluded that the tree had not caused, was not causing, or was not likely to cause, damage to Attallah's property, or injury to any person. Consequently, the application was dismissed.

The court dismissed the application, finding that no orders could be made under the Act as the tree did not cause, or was not likely to cause, damage to Attallah's property or injury to any person.

Attallah v Doutre

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established