Badolato v Terry

[2009] NSWLEC 1021

Land and Environment Court

of New South Wales

CITATION:

Badolato v Terry [2009] NSWLEC 1021

PARTIES:

APPLICANT
Robert and Rochelle Badolato

RESPONDENT
Rae Terry

FILE NUMBER(S):

21149 of 2008

CORAM:

Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- Leighton Green Ledge, Damage to fence, Restriction of light

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

15/01/2009

EX TEMPORE JUDGMENT DATE:

15 January 2009

LEGAL REPRESENTATIVES:

APPLICANT
Robert and Rochelle Badolato, litigants in person

RESPONDENT
Rae Terry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

15 January 2009

21149 of 2008

Robert and Rochelle Badolato v Rae Terry

JUDGMENT

The extemporaneous decision was given on 15 January 2009. This written judgment includes the findings given on-site, relevant observations and background information.

1 ACTING COMMISSIONER: Mr and Mrs Badolato are the owners of 20 Griffith Avenue, North Bondi. They claim that five Leighton Green Cypress trees (Cupressocyparis leylandii) growing in the backyard of the adjoining property to the west have damaged the dividing fence, prohibit construction of a new fence, are restricting light to their property, may have caused a blockage in their sewer, should be kept pruned to the boundary, and that the trees may be dieing due to overshadowing by a fig tree.

2 Mr and Mrs Badolato seek orders for removal of the five trees and replacement of the fence with a lapped and capped, termite proof fence 2 m tall. They also seek orders for pruning of a Fig tree.

3 Ms Terry is the owner of 22 Griffith Avenue, North Bondi where the Leighton Green trees are situated. The trees form a high hedge on the eastern side of her backyard, screening the yard and rear of her house from a nearby unit block.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

Has the tree caused damage to the applicant's property ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?

5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

6 The parties agree that the line of the dividing fence is approximately on the common boundary. Four of the trees are growing in a line with their trunks about 0.25 m from the dividing fence. The fifth tree near the rear boundary of Ms Terry's backyard is about 1 m from the dividing fence.

7 Ms Terry provided an arboricultural report dated 25 November 2008, prepared by Hayden Coulter. That report states that the trees on the property at 22 Griffith Avenue are mature, with most having good to average health and average form for the species. It also states that the sewer blockages are likely to have been caused by the fig tree on the adjoining property, and that it does not appear that the tree(s) have caused the fence to collapse or fail.

8 Ms Montgomery, the Tree Management Officer for Waverley Council attended the hearing and provided helpful information. She advised that as the trees were growing beside the fence there would be minimal growth against the fence and that growth would be spindly or fluffy, and that the trees would only have larger branches above the fence where there was more light. On that basis she considered that the trees would not have exerted pressure on the fence. She also stated that the trees are generally healthy and could be maintained, and that they may get green growth lower down where they have been heavily pruned in the past, if ongoing regular pruning is carried out to the upper parts of the trees.

9 I observed that below fence height, there were no branches or stubs of branches larger than about 5 mm thick on sides of the tree trunks facing the fence.

10 Investigation at the hearing revealed that some of the fence panels were leaning against the trees, and that one of the fence posts was rotted off at ground level. On the balance of probability I find it likely that the other fence posts are similarly decayed, and that the fence has failed for that reason.

11 On the basis of my observations, Mr Coulter’s report and Ms Montgomery’s statements, I find that the trees have not damaged the fence, do not prohibit construction of a new fence, and are not dieing. I also note that Mr and Mrs Badolato have not provided any evidence that the trees were the cause of the sewer blockage. Also, restriction of light is not covered by the Act, and the overgrowth of the trees has not caused damage. Therefore the trees do not meet any of the tests in s 10(2)(a) or s 10(2)(b) of the Act.

12 I note from the evidence provided, and I observed at the hearing that the Fig tree is not situated on Ms Terry’s property. Therefore I am not able to make any orders regarding the Fig tree.

13 As no parts of Mr and Mrs Badolato’s application have been upheld, I will dismiss the application.

Orders

14 The orders of the Court are that the application is dismissed.

___________________

Peter Thyer
Acting Commissioner of the Court

The formal orders are not included as part of this judgment but a copy may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at