Campbell v Koutsourais

[2008] NSWLEC 1421

Land and Environment Court

of New South Wales

CITATION:

Campbell v Koutsourais [2008] NSWLEC 1421

PARTIES:

APPLICANT
Daryl and Jean Campbell

RESPONDENT
Mr & Mrs Koutsourais

FILE NUMBER(S):

20649 of 2008

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) :- Removal of trees, risk of injury to persons and damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

15/10/2008

EX TEMPORE JUDGMENT DATE:

15 October 2008

LEGAL REPRESENTATIVES:

APPLICANT
Daryl and Jean Campbell, litigants in person

RESPONDENT
No Appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

15 October 2008

20649 of 2008 Daryl and Jean Campbell v Mr & Mrs Koutsourais

JUDGMENT

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

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Campbell of 48 Condamine Street Campbelltown against trees located on a property owned by Mr and Mrs Koutsourais of 46 Condamine Street Campbelltown.

2 The applicants are concerned about three trees at the rear of the respondents’ property that are adjacent to their side boundary fence. The trees are all mature specimens. They are one Illawarra Flame tree, a Cocos Palm and a Liquidambar.

3 The applicants are seeking the removal of the trees as they contend that they pose a risk of injury to persons and cause damage to their property.

4 They are especially concerned about leaves, fruit and other material that falls from the trees onto their property. They are also concerned about roots from the Liquidambar lifting the pavers of an undercover barbecue area. This structure is immediately adjacent to and under the Liquidambar.

5 The trees were viewed from the applicants’ property only. Neither the respondents, nor their agent, attended the on-site hearing. The tenant was unaware of the proceedings and did not wish to attend.

6 The Flame tree has been pruned well back from the applicants’ property. This was done at their expense. Whilst the tree has most likely been lopped in the past, the main stems appear to be well attached and unlikely to fail in the near future.

7 The palm has some dead fronds; this is quite normal. It is growing into part of the canopy of the Liquidambar.

8 The Liquidambar is approximately 16-18 m tall and is healthy. Only about 5% of the canopy now overhangs the applicants’ property despite it being located within about 1 m of the fence. The applicants have had the branches removed to the trunk on several occasions. Several roots of about 25 mm in diameter were in evidence. Mrs Campbell had removed these from under the pavers.

9 The pavers nearest the fence had the greatest degree of displacement but are in a low access area now occupied by a plant stand and a water tank. Some unevenness was noted in some of the pavers. One of the pavers had been removed and roots of about 15-25 mm in diameter were seen in the bedding layer beneath the paver.

10 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

11 In this case no injury has been sustained and there is nothing in any of the trees to indicate that injury is likely to occur in the near future.

12 In terms of damage, in Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This applies in this case.

13 With respect to the lifting of the pavers, this has clearly caused a high degree of frustration and inconvenience but has not caused actual damage to the structure.

14 Under s 12 of the Act, the Court must consider a number of other factors. The relevant clauses in this matter are:

(a) The trees are wholly located on the respondents’ property.
(e) The trees do make a contribution to the scenic value of the land on which they are located.
(h) and (i) The applicants have taken many steps to mitigate the impact of the trees on their property; the respondents appear to have done very little.

15 However, after viewing the evidence and in the light of s 10(2), there is no remedy that the Act can provide in this matter and therefore the order of the Court is that the application is refused.

___________________

J Fakes
Acting Commissioner of the Court