Barker v Kyriakides

Case [2007] NSWLEC 292



Land and Environment Court


of New South Wales


CITATION: Barker v Kyriakides [2007] NSWLEC 292
PARTIES:

APPLICANT
Keith Barker

RESPONDENT
Phillip Kyriakides

INTERVENOR
Gosford City Council
FILE NUMBER(S): 20218 of 2007
CORAM: Moore C - Hussey C - Fakes AC
KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
Ordinary maintenance
Principle: Urban trees and ordinary maintenance issues
DATES OF HEARING: 24 May 2007
EX TEMPORE JUDGMENT DATE: 24 May 2007
LEGAL REPRESENTATIVES:

APPLICANT
In person

RESPONDENT
In person

INTERVENOR
Mr M Everingham, solicitor
Gosford City Council


JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      MOORE C
      HUSSEY C
      FAKES AC

      24 May 2007

      07/20218 Keith Barker v Phillip Kyriakides

      This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

      JUDGMENT

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr and Mrs K Barker of 1/ 21 Jeannie Cox Close, Erina concerning a number of trees located on a property generally to the southwest of Mr and Mrs Barker’s property The address of this property is 106 Bronzewing Drive.

2 It is convenient for the purposes of this decision to deal with the issues in two groups.

3 The first concerns a range of small trees that have been planted by Mr Kyriakides, the owner of 106 Bronzewing Drive, in the vicinity of the boundary between his property and the Barker’s property.

4 Mr Barker suggests that the Court should have regard to the proximity of these trees to a Council sewer main which runs, in general terms, along the boundary between the Barker and Kyriakides properties.

5 As we explained during the course of the inspection of Mr Kyriakides’ property, the Court is obliged, pursuant to s 10(2)(a) and (b) of the Act, to consider and determine that at least one of four matters exists before considering whether or not it should order any intervention with respect to a tree or any damage which might be associated with it.

6 The tests that are relevant to those small trees are whether they are presently causing, have caused or are likey in the near future to cause damage to any property located outside the boundaries Mr Kyriakides’ property.

7 Leaving aside the question of the location of the sewer and whether or not it is on Mr Kyriakides’ property (and indeed leaving aside the question whether Mr and Mrs Barker would have any jurisdiction to invoke in Act with respect to property not owned by them – it being Council’s sewer main), we are satisfied that there is no evidence that the present time that would permit us to conclude that there has been, is presently or is likely in the near future to be any damage to the sewer.

8 We are therefore satisfied that there is no basis upon which the Court could intervene with respect to those small trees on Mr Kyriakides’ property.

9…

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AGLC
Barker v Kyriakides [2007] NSWLEC 292
Case
[2007] NSWLEC 292
Decision Date

CaseChat Overview and Summary

Barker v Kyriakides was a case heard by the Land and Environment Court of New South Wales. The applicants, Mr and Mrs Barker, sought intervention regarding trees located on a neighbouring property owned by Mr Kyriakides. The applicants alleged that the trees were causing damage to their property, particularly to a Council sewer main running along the boundary, and that the falling leaves and small deadwood from a large eucalypt tree were obstructing their gutters and clothesline area. The Gosford City Council intervened in the proceedings. The primary legal issue before the Court was whether the trees planted by Mr Kyriakides caused or were likely to cause damage to the Barkers' property, thereby justifying intervention under the Trees (Disputes Between Neighbours) Act 2006.

The Court examined the evidence presented regarding the health and location of the trees, the potential impact on the Barkers' property, and the principle of ordinary maintenance in urban environments. The Court noted that while the Barkers had expressed concerns about the trees, there was no evidence to support that the trees were causing or were likely to cause damage to the Barkers' property or the Council sewer main. The Court also established a principle that in urban environments, some degree of exterior maintenance, such as cleaning gutters, is expected as part of enjoying the benefits of having trees. Based on this principle and the evidence, the Court found that the trees did not pose a significant risk of damage or injury and dismissed the Barkers' application. Consequently, no intervention was ordered, and the application was dismissed.

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