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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
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.