Chesher v Robson

[2007] NSWLEC 594

Land and Environment Court

of New South Wales

CITATION:

Chesher v Robson [2007] NSWLEC 594

PARTIES:

APPLICANT
Robert Chesher

RESPONDENT
Carol Robson

FILE NUMBER(S):

20666 of 2007

CORAM:

Bly C

KEY ISSUES:

Trees (Neighbours) :- Peppercorn Tree and Pine Tree, damage to property, falling branches, possible damage to property and injury to persons.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

12/09/2007

EX TEMPORE JUDGMENT DATE:

12 September 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. Chesher, litigant in person

RESPONDENT
Ms C. Robson, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

12 September 2007

20666 of 2007 Robert Chesher v Carol Robson

This decision was given extemporaneously on site. It has been revised and edited prior to publication.

JUDGMENT

1 COMMISSIONERS: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 (“the Act”) in relation to an application by Mr R Chesher of 40 Fitzgerald Street Cringila for the removal of a certain trees in the adjoining property at 35 Lake Avenue Cringila. Ms C Robson is the owner of that adjoining property.

2 Mr Chesher explained that he has concerns in relation to the trees on the property at No. 35 Lake Avenue, those trees being a large peppercorn tree and a large pine tree. There are two other pine trees in the immediate vicinity, one of which is dead but these are of no direct concern. He explained that he is not sure which of these trees is sending its roots into his property but has discovered roots in the vicinity of his home and extending under existing concrete paths. He is concerned that these roots could, in the future, damage his home and the footpath. He is also concerned that the roots might penetrate existing close by sewer lines and cause blockages.

3 His further concern particularly involves the pine tree which has significant branches overhanging a shed adjacent to his side boundary. He explained that from time to time this tree (as does the peppercorn tree) drops branches (mostly dead) onto his property and onto this shed. In this regard he is concerned for the safety of his family.

4 Ms Robson explained that she has communicated with the council and has received a consent under council’s tree management order that allows the removal of the pine trees and the pruning of the peppercorn tree. More particularly the peppercorn tree is to be:

“Selectively prune lowest southern lateral branch 2BC Prune several overhanging lateral branches up to 150 mm diameter and remove all accumulated dead wood, maintaining canopy balance”.

5 She also explained that the pine tree is of particular sentimental value and would very much like it to be retained.

6 Having inspected Mr Chesher’s property I am not persuaded that these trees are likely to cause damage to his home in the near future. Whilst there is existing cracking that is apparent in both the concrete footpath and a small area of wall I am not convinced that this cracking is as a direct result of these trees. This is entirely possible but there is no evidence to support this, notwithstanding that Mr Chesher has discovered tree roots in this particular locality. Similarly I am not convinced that there is a likelihood that the existing sewer that is the house sewer under the back part of the house is likely to be adversely affected in the near future.

7 As for the concerns about falling branches, I accept Mr Chesher’s concern and agree that both trees need to be appropriately pruned. Having inspected both trees I am not convinced that their removal is warranted. However I am convinced that they both require appropriate pruning in the interests of safety, especially the removal of dead wood, which appears to be the greatest concern. In this regard I accept that there is a possibility indeed a likelihood that if a major branch from these trees were to fall injury could result.

8 I have therefore decided that the appeal should be upheld and both trees should be appropriately pruned by the owner of 35 Lake Avenue, Cringila.

___________________

T A Bly
Commissioner of the Court
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