Doolan v Betts

[2008] NSWLEC 31

Land and Environment Court

of New South Wales

CITATION:

Doolan v Betts [2008] NSWLEC 31

PARTIES:

APPLICANT
Rodney and Patricia Doolan

RESPONDENT
Donna Betts

FILE NUMBER(S):

21077 of 2007

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :- Removal of the tree, damage to property, saftey of persons

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

16/01/2008

EX TEMPORE JUDGMENT DATE:

18 January 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr R. and Mrs P. Doolan, litigant in person

RESPONDENT
Ms D. Betts, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

16 January 2008

21077 of 2007 Rodney and Patricia Doolan v Donna Betts

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Rodney Doolan and Mrs Patricia Doolan of 93 Upper Street Tamworth concerning a Jacaranda mimosifolia (Jacaranda) on a property owned by Ms Donna Betts of 91 Upper Street Tamwroth.

2 The tree is wholly located within the respondent’s property and is located adjacent to the boundary fence that separates the two properties approximately half-way down the block.

3 The applicants seek the removal of the tree as they are concerned about the volume of leaf litter and other debris that builds up from the time the tree starts losing its leaves with the first frost. They are concerned that this creates slipping hazards for themselves and for visitors.

4 They are also concerned about the potential damage the tree may do to a terra cotta section of sewer pipe that remains about 6m from and under a concrete slab on which a shed has been built. One trunk of the tree overhangs the applicants’ property, specifically a shed and a site where they wish to install a water tank. They would not be satisfied that the pruning of overhanging branches would adequately remove the leaf litter or resolve the issue with the roots.

5 The owner of the tree does not want the tree removed as she contends that it affords shade for herself and her dog and provides privacy, has visual appeal and provides general amenity to her property.

6 The applicants purchased the property in January 2004 approximately two years after the respondent purchased her property. Shortly after the applicants moved in, four smaller trees, two of which were self-seeded Jacarandas, were removed by the respondent from her property as they were causing some damage to the gutter of the applicants’ house.

7 In August 2004, the sewer line at the rear of the applicants’ property was cleared of roots. These were noted by the plumber as being from a Jacaranda. The pipes were replaced with PVC to within 6m of the slab on which a garden shed was built. There have been no problems with roots blocking the sewer since then, a period of three and a half years.

8 A large root from the Jacaranda was observed on the applicants’ property in close proximity to the north-western corner of the garden shed. This root has cracked a length of concrete under the colour bond dividing fence but at this stage has not damaged the fence.

9 The respondent states that the applicants have built the shed under the tree and have constructed brick pathways close to the tree. The applicants confirmed this and stated that the shed replaced a shade cloth covered pergola. They also confirmed that they had carried out paving and other landscape works.

10 Under s 10(2) of the Act, the Court must be satisfied that the tree has caused, is causing, or could, in the near future, cause damage to property or injury to persons.

11 I have inspected the tree from both properties. The tree is a healthy mature specimen consisting of several stems. There is some included bark between two of the stems but in my opinion, the risk of failure of these stems is very low. There is very little dead wood in the tree and what is there is consistent with a normal healthy individual of this species. A small diameter dead branch was noted on the applicants’ property. The tree was clearly of a substantial size when both the respondent and the applicants bought their properties.

12 Under s 12 of the Act the following clauses are considered relevant to this matter. The tree does make a contribution to the scenic value of the land on which it sits (clause (e)) and it has some intrinsic value to public amenity by virtue of its size, location and flowering characteristics (clause (f)).

13 In the matter of the leaf litter, consistent with the tree dispute principle set out by the Court in Barker v Kyriakides [2007] NSWLEC 292, I am satisfied that it is not appropriate to order the removal of, or significant interference with, the tree on the basis of its dropping of leaves, twigs and the like on the applicants’ property. As discussed in the principle, for people who live in treed urban environments, there is some necessary degree of assumption of housekeeping required in order to appreciate and retain benefits of having such a treed urban environment.

14 With respect to the roots, since a substantial section of the sewer has been replaced with PVC there have been no further problems with roots blocking the sewer. There is no evidence to suggest that this is likely to be a problem in the near future.

15 Therefore based on the tree inspection and the evidence submitted I am satisfied that none of the grounds of section 10 (2) have been satisfied for this tree.

16 For that reason, the Order of the Court in matter 21077 of 2007 is that the application is refused.

___________________

J Fakes
Acting Commissioner of the Court
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