Barker v Kyriakides

[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 The second element of the application concerns a large eucalypt (the tree) located on the boundary between 106 Bronzewing Drive and 104 Bronzewing Drive.

10 104 Bronzewing Drive is located immediately to the east of 106 Bronzewing Drive.

11 The tree straddles the boundary of these two properties with, on our estimation, some 20 percent or so of its trunk, at the base, being located on 104 Bronzewing Drive.

12 104 Bronzewing Drive is owned by Mr and Mrs Southeren who had not been served with the application but who had been kept informed by Mr Barker of what has been occurring and have attended and taken part in the proceedings despite the absence of service of the application upon them.

13 Mr Barker's concerns about the tree relate to the falling of leaves and pieces of small deadwood from it into his gutters and into the area of open space at the rear of his property which is the area where the clothesline for the house is located.

14 Mr Barker is of mature years and is himself unable to climb to the roof and clean the gutters and must employ somebody to do so.

15 The application he makes is that the tree be removed and that he be compensated for the cost of carrying out of these maintenance tasks.

16 Mr and Mrs Southeren have indicated that, for their part, they do not object to the domestic burden of cleaning their gutters and that they do not support the removal the tree. On their evidence, the tree provides a degree of habitat for some local indigenous fauna and valuable summer shade to their house.

17 We have inspected the tree and are satisfied that there are a number of conclusions that can be drawn about its present health.

18 The conclusions that we have drawn with respect to the state of tree are as follows:

• the tree is presently healthy and has no obvious defects;
• there is no abnormal amount of deadwood located in it (indeed given the age of the tree and its location in an urban environment, there is, perhaps, a lesser amount of deadwood than might otherwise be expected of such a tree);
• the location of the tree is well clear of the four houses in general area of the tree’s canopy;
• there is no evidence of any past significant branch drop from it; and
• there is no evidence that we can see in the tree that would indicate that there is any immediate likelihood of any significant or major branch failure.

19 As earlier indicated, when we consider matters such as this, there are four tests pursuant to section 10(2) of the Act we are obliged to consider. In a number of past cases, the Court has been obliged to consider the questions of what might be regarded as ordinary maintenance and interaction between residents and trees in an urban environment. The Court’s views have been stated not only in specific terms but in general ones in a number of earlier cases.

20 It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms:

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.

21 We have considered the matters that have been raised by Mr Barker and the burdens that fall upon him because of his mature years but have done so in the context of our assessment of the state of the tree and the above principle.

22 We are not satisfied that any of the tests that arise pursuant to section 10(2) of the Act are satisfied. That is, we are not satisfied, specifically, that the eucalypt has caused any damage, is causing any damage or is likely to cause any damage in the immediate future nor does it pose any risk of injury to persons.

23 Therefore, we have concluded that the application should be dismissed.

Tim Moore

Commissioner of the Court

Bob Hussey

Commissioner of the Court

Acting Commissioner of the Court