Campbell v Rahme

[2009] NSWLEC 1315

Land and Environment Court

of New South Wales

CITATION:

Campbell v Rahme [2009] NSWLEC 1315

PARTIES:

APPLICANT
Reginald Campbell

RESPONDENT
Daniel Rahme

FILE NUMBER(S):

20440 of 2009

CORAM:

Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of the tree, damage to property and injury to people

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:

18 September 2009

EX TEMPORE JUDGMENT DATE:

18 September 2009

LEGAL REPRESENTATIVES:

APPLICANT
Reginald Campbell (litigant in person)

RESPONDENT
Daniel Rahme (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

18 September 2009

20440 of 2009 Reginald Campbell v Daniel Rahme

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 Reginald Campbell of 11 Mills Crescent Burwood against the owner of a tree growing at 11 Selborne Street Burwood. The owner of that property is Mr Daniel Rahme. Mrs Rhonda Campbell acted as Mr Campbell’s agent for these proceedings. Burwood Council was represented by Mr Joe Lilley, Tree Management Officer.

2 At the on site hearing, I disclosed to all parties that in the past I lived across the road from 11 Selborne Street and that I was on speaking terms with the previous owner of no. 11 and with Mr Rahme’s father who lives at no. 9 Selborne Street. However, I had never entered 11 Selborne Street. All parties agreed that I continue to hear the matter.

3 The applicant is seeking the removal of the tree as he contends that it may cause injury to roofing contractors who will be replacing his garage roof. Mr Campbell argues that the roof needs replacing because of the build up of leaves and damage caused by falling branches. The tree overhangs this roof by several metres. At the hearing, he also raised the issue of leaves blocking the gutters of his house and subsequent drainage problems. In a further submission, the applicant contends that the roots from the tree have caused cracking of the concrete floor of the garage. No compensation is sought.

4 The tree was inspected from both properties. It is a mature Eucalyptus nicholli thought to be approximately 35 years old growing in the north-western corner of the respondent’s property. It has a diameter at breast height of about 1 m and the trunk bifurcates some metres above ground. The attachment of these codominant stems appears sound. The tree has about 20% dead wood, which I consider within normal limits for a tree of this species and age. The section of canopy that overhangs the garage comes within about 1.5 metres of the roof.

5 The applicant stated that the previous owner of 11 Selborne Street had removed a branch that was growing towards his property. The evidence of this was noted. The applicant also stated that a large branch fell from the tree into Mr Rahme’s property but quite close to Mr Campbell’s fence. Mr Rahme suggested that this occurred during windy conditions. The remaining portion of the branch was observed and appeared to be consistent with storm damage.

6 The Campbells built their house about 50 years ago and the garage was constructed in 1967. The metal clip-lock roof is thought to be original. It was inspected from above and below. Small holes and a degree of rust were observed.

7 The concrete garage floor had 3 cracks; two arising from the corners at the southern end and one from the centre of the northern end. All cracks met roughly in the centre of the floor. No roots were visible.

8 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 or injury to persons. 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.

9 The Court must also consider a number of matters under section 12 of the Act. The relevant clauses in this case are:

(a) The tree is wholly located on the respondent’s property.
(c) Whilst the tree has no historical value, Mr Lilley stated that 11 Selborne Street is listed in Schedule 9 of the Burwood Planning Scheme Ordinance as a Federation Residence. However, the property is not listed on the State heritage register.
(d) The tree is considered by the respondent, and supported by Mr Lilley, to make a contribution to local biodiversity.
(e) The tree contributed to the scenic value of the land on which it is growing.
(f) The tree has some value to public amenity as it can be seen within the immediate area, particularly by residents of Mills Crescent.
(h)&(i) The cracking in the slab may be related to its age, the absence of expansion joints and the reactive nature of the soil. The roof of the garage is thought to be at least 40 years old.

10 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. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide.

11 There is no substantial evidence that the tree has caused the damage to the garage floor. Whilst there may have been some contribution to the deterioration of the roof by the non-removal of leaf litter, the age of the roof suggests that the deterioration is consistent with normal wear and tear.

12 The main reason for the making of this application is the risk of injury to people. Section 10(2)(b) applies to injury to any person, not just those nominated in an application.

13 The tree does have a substantial amount of dead wood and the canopy extends over three properties - 11 Selborne Street, 11 Mills Crescent and 27 Luke Street. Falling dead wood could cause injury.

14 As one of the elements of section 10(2) applies, the Court has jurisdiction to make an order.

15 The orders of the Court are:

1. The application to remove the tree is refused.

2. The respondent is to engage and pay for an AQF level 3 arborist with the appropriate insurance to remove all dead wood down to 25 mm in diameter.
3. This work is to be carried out in accordance with AS4373 Pruning of Amenity Trees and the WorkCover Code of Practice for the Amenity Tree Industry.
4. The work is to be completed within 60 days of the date of these orders.
5. The applicant is to provide all reasonable access, should it be required, as long as 3 working days notice is provided.

___________________

J Fakes
Acting Commissioner of the Court