Bouas v Connolly

[2008] NSWLEC 1344

Land and Environment Court

of New South Wales

CITATION:

Bouas v Connolly [2008] NSWLEC 1344

PARTIES:

APPLICANT
Frances Bouas

RESPONDENT
John and Lisa Connolly

FILE NUMBER(S):

20566 of 2008

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Damage to property, overshadowing,

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Robson v Leischke [2008] NSWLEC 152

DATES OF HEARING:

11/08/2008

EX TEMPORE JUDGMENT DATE:

11 August 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms F Bouas, litigant in person

RESPONDENT
Mr J and Mrs L Connolly, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

11 August 2008

20566 of 2008 Frances Bouas v John and Lisa Connolly

JUDGMENT

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

1 ACTING COMMISSIONER: Mrs Bouas, owner of 26 Ada Street, Waratah has applied to the Court for orders that a Fiddlewood tree (Citharexylum spinosum) be removed. The tree is situated on 39 Alfred Street, Waratah the adjoining property to the west owned by Mr and Mrs Connolly. The tree is growing near the common boundary about mid-way across Mr and Mrs Connolly’s backyard.

2 Mrs Bouas bought her property in 2001, the tree being on her advice somewhat smaller at that time. Mrs Bouas’ concerns are:

• Overhanging low branches may damage a shed or roof structure if she were to construct it;
• Shade caused by the tree;
• Dropping of leaves;
• Possible damage by roots of the tree.

3 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 the 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?

4 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?

The tree

5 The Fiddlewood tree is about 10 m tall with a spread of about 8 m. It appears to have good health and structure. Mr and Mrs Connolly advise that the tree was present when they bought their property, and it may be about 20 years old.

Damage

6 I accept Mrs Bouas’ evidence that there was damaged shade cloth on the pergola under the tree when she bought the property, that the damage was caused by branches of the tree and that the damage continued until she removed the shadecloth. I find that this damage meets the first test in s 10(2) (a) of the Act.

7 I have heard Mrs Bouas’ evidence that a dead branch fell onto the pergola frame in the storms of June 2007 without causing any damage. Therefore the fallen branch does not meet any of the tests in s 10(2) (a) of the Act.

8 Mrs Bouas expressed concern that branches might damage a roof or shed if she were to build it. However, as it has not been built and she gave no indication it would be built shortly, I cannot find that it is likely to be damaged in the near future.

9 Matters of shading were not included in the Act so cannot be considered by the Court. This was explained by Preston CJ in Robson v Leischke [2008] NSWLEC 152 at para 173.

10 I was shown a small pile of leaves under the pergola in Mrs Bouas’ yard. I accept that she finds the fallen leaves annoying and inconvenient. However, as she could not show that the leaves had caused any damage, I do not find that they meet any of the tests in s 10(2) (a) of the Act.

11 Mrs Bouas expressed concern about possible damage by roots of the tree, but did not provide any evidence that roots of the tree have caused, are causing, or are likely to cause damage in the near future. Therefore matters regarding tree roots do not meet any of the tests in s 10(2) (a) of the Act.

Likelihood of injury

12 Neither party has raised any concern or evidence about likelihood of injury. I observed that the tree is relatively small and does not have heavy branches. On this basis I find that the tree is unlikely to cause injury, and does not meet the test in s 10(2) (b) of the Act.

Considerations

13 Although the tree satisfies the first test in s 10(2) (a) of the Act with regard to having caused damage, that damage is minor and before determining the application I am required to consider matters in s 12 of the Act.

14 Under s 12 (d) of the Act, I find that the tree is likely to contribute to the local ecosystem and biodiversity by providing food and shelter for various fauna.

15 Under s 12 (e) of the Act, I find that the tree is a significant landscape element in Mr and Mrs Connolly’s yard, providing a visual feature and shade for family activities. Also, as it is visible from surrounding properties and streets the tree contributes to the scenic values of the local area.

16 Under s 12 (f) of the Act, I find that the tree provides intrinsic value through local climate amelioration, oxygen production and carbon sequestration.

17 Under s 12 (h) (ii) of the Act I note that at the hearing Mr Connolly agreed to prune off the lower branches to a height of about 3 m above the ground so they do not overhang the fence and would not interfere with a pergola roof or shed if Mrs Bouas were to build it. Mr and Mrs Connolly also said that they are willing to allow Mrs Bouas to prune the tree to the boundary at her cost if she wishes, and possibly to reduce the height of the tree if the extent of work is agreeable to them and is carried out by a qualified arborist.

Conclusion

18 I find that there was minor damage caused to shade cloth more than 7 years ago. However, I but do not find that damage to be sufficient to order any intervention with the tree particularly after considering the matters under s 12 of the Act.

Orders

19 The orders of the Court are that the application is refused.

___________________

Peter Thyer
Acting Commissioner of the Court