Dooley v Berryman
[2016] NSWLEC 1500
•25 October 2016
|
New South Wales |
Case Name: | Dooley & anor v Berryman & anor |
Medium Neutral Citation: | [2016] NSWLEC 1500 |
Hearing Date(s): | 25 October 2016 |
Date of Orders: | 25 October 2016 |
Decision Date: | 25 October 2016 |
Jurisdiction: | Class 2 |
Before: | Galwey AC |
Decision: | The application is dismissed. |
Catchwords: | TREES (DISPUTES BETWEEN NEIGHBOURS); debris; there must be more than a theoretical possibility that damage will occur; application dismissed. |
Legislation Cited: | Trees (Disputes Between Neighbours) Act 2006 |
Cases Cited: | Barker v Kyriakides [2007] NSWLEC 292 |
Category: | Principal judgment |
Parties: | May Dooley (First Applicant) |
Representation: | Geraldine Cohen, agent (Applicants) |
File Number(s): | 207405 of 2016 |
Judgment
Background
Mr and Mrs Dooley (‘the applicants’) have applied to the Court pursuant to the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for removal of a neighbouring Norfolk Island Pine (‘the tree’). They have lived at their property for four years. Their dwelling is approximately 17 years old.
Mr and Mrs Berryman (‘the respondents’) have owned and lived at the neighbouring property for approximately 16 years. The tree was there when they purchased the property. They do not wish to remove it.
Mr and Mrs Dooley say the tree needs to be removed because:
Lots of debris falls from the tree
Leaves and small branches falling from the tree have broken roof tiles – tiles which are now unavailable to replace
Leaves and debris from the tree block their gutters and downpipes
Debris covers the ground in their property, especially after storms
Leaves lying on the ground are slippery and hazardous
Cleaning up this amount of debris is onerous
The tree is tall, its branches overhang their dwelling, and if it falls it will cause damage or injury
The tree is less than 4 metres from their dwelling and they are worried its roots will damage their dwelling
Sewer and stormwater pipes are near the tree and they are worried that roots will invade the pipes.
Mr Robert Church, a retired engineer, gave supporting evidence for the applicants. Mr Russell Kingdom, arborist, gave evidence for the respondents.
The tree is healthy, has no major structural defects that can be seen from the ground, and has typical form for this species.
Jurisdiction of the Trees Act
According to s 10(2) of the Trees Act, the Court must not make an order under Part 2 of the Act unless satisfied that the tree:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b) is likely to cause injury to any person.
Debris
Regarding all matters relating to debris that falls from the tree, I refer to the principle established by the Court in Barker v Kyriakides [2007] NSWLEC 292, where the Commissioners stated at (20):
For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.
Debris from the tree does not amount to damage. Should a risk of damage or injury arise from that debris, by blocking gutters or creating a slippery surface on a path, the expectation of some property maintenance, described in the above principle, would apply here. There is nothing unusual about the situation in this matter that would lead me to deviate from this principle. The ongoing removal of debris from paths, gutters and downpipes is not a reason to remove this tree.
Damage to tiles
Regarding broken tiles, I did not observe any branches that appear likely to fail. No evidence of broken tiles was provided to the Court, but even accepting that damage has occurred, I would not make any orders on this basis as limb failures appear unlikely in the near future.
Tree failure
Despite the applicants’ concerns that the entire tree might fall, there is nothing to indicate that this tree has root problems or has any higher risk of failure than the average tree.
Giving evidence, Mr Church wandered from his area of experience, engineering, into the field of arboriculture. He talked about the possibility of the tree declining in health and falling over onto the applicants’ dwelling. There must be more than a theoretical possibility that damage will occur for the Court’s jurisdiction to be enlivened.
Root damage
Mr Church discussed the number of properties he has seen damaged by trees, and said the proximity of this tree results in a high risk of root damage.
There is no structural damage at present. The only roots shown to me were close to neighbouring Lilly Pillies and unlikely to be from the Norfolk Island Pine. No damage was associated with those roots.
Apparently no pipes have been invaded by tree roots, but the applicants are worried that this may occur.
Apart from the theoretical possibility of future damage, nothing was shown to me that would suggest damage to the applicants’ property is likely in the near future.
Conclusion
On the basis of the above, the application will be dismissed. Should the situation change, the applicants can make a new application to the Court.
Orders
The orders of the Court are:
(1)The application is dismissed.
____________________________
D Galwey
Acting Commissioner of the Court
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