Fisher v Nassar

[2008] NSWLEC 1459

Land and Environment Court

of New South Wales

CITATION:

Fisher v Nassar & Anor [2008] NSWLEC 1459

PARTIES:

APPLICANT
Eric Fisher

1st RESPONDENT
George & Anna Nassar

2nd RESPONDENT
T K Williams

FILE NUMBER(S):

20731 of 2008

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) :- Removal of tree: damage to property: injury to persons.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Robson v Leischke [2008] LEC 152

DATES OF HEARING:

07/11/2008

 
DATE OF JUDGMENT: 

7 November 2008

LEGAL REPRESENTATIVES:

APPLICANT
Eric Fisher, Self Represented

1st RESPONDENT
George & Anna Nassar, Self Represented

2nd RESPONDENT
T K Williams, Self Represented

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT

OF NEW SOUTH WALES

Fakes AC
7 November 2008

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 Eric Fisher of 42 Wemyss Street Enmore against the owners of a tree located at 97 Newington Street Marrickville. The owners of that property are Mr and Mrs Nassar and their daughter Mrs Williams.

2 Marrickville Municipal Council was represented at the on-site hearing by their Tree Management Officer, Ms Kate O’Connell.

3 The tree is a semi-mature Platanus x hybrida (London Plane) located at the northern end of the respondents’ garden about 1.5-2 m away from the boundary fence between the two properties. The tree is reported to be about 15 years old. The applicant seeks the removal of the tree as he contends that the tree has caused, is causing and could cause future damage to his property and potentially injury to persons. Specifically he is concerned that pavers in his driveway have lifted, that the wooden gates located in the driveway catch on the pavers, that the external door to the kitchen scapes on the floor and that there is a crack in the plaster above the kitchen door. He is also concerned about a crack in the mortar, in the vicinity of the tree, in the brick dividing fence. The applicant is also concerned that if the roots of the tree were to damage the external wall of his two storey 1885 house that the wall could collapse and people could be killed or injured.

4 The tree is healthy with a sound structure except for the branches on the northern side of the tree that have been inexpertly lopped to the fence-line by the applicant.

5 The driveway shows unevenness is several sections, some of which are located well-away from the tree. There is a slight mound in the centre of the driveway where the gates are located. The pavers are not lifted enough to cause a trip hazard and the driveway is serviceable.

6 The house is of double brick construction. There is no visible recent cracking in the exterior walls of the house, nor to the sandstone foundations that are closest to the tree. There is evidence of previously repaired cracks over the corners of the windows and doors and in the wall. This is not inconsistent with a building of this age. There was no cracking or displacement visible in the small brick wall that retains a raised paved terrace between the driveway and the house. This was closely inspected in the area between the tree and the kitchen door.

7 There is a crack between the mortar of the single skin brick wall of the boundary fence in the vicinity of the tree. This wall does not appear to have been built by a professional brick-layer as the mortar is very rough with many gaps. Another similar crack was noted many meters away from the Plane tree.

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 range of other matters under s 12 of the Act. The relevant clauses in this case are:

(a) The trees are wholly located on the respondent’s property.

(e) The trees do make a contribution to the scenic value of the land on which that are situated. The respondents do not want the tree to be removed as they value the shade it provides in summer, the winter sun and its role in intercepting fallout from planes (the properties are directly under the flight path).

(h)&(i)There are a number of factors that are relevant.

• The boundary fence is a single skin brick wall of amateur construction and probably quite old. The respondents’ house was built in 1913. Some cracking is to be expected.
• There is a wisteria that has been planted by the applicant in a narrow garden bed between the driveway and the wall and on the opposite side of the wall to the tree. It is trained against the wall and it is very close to the crack in the wall that concerns the applicant.
• The soils in the area are reported to be reactive clays; that is, they swell when wet and shrink when dry.
• In recent years there have been very dry and very wet conditions; the respondents tendered evidence to this effect. The changes in soil moisture content may have contributed to the sticking of the door and gates and to the internal crack above the kitchen door.
• Undulations in the driveway may be related to its installation or to normal wear and tear. The applicant stated that it was installed professionally about 8 years ago.
• The applicant did engage a firm of consulting arborists, Paul Laverty and Associates, to report on the tree and the alleged damage. However, it appears that the arborist did not excavate any part of the site to determine if roots were the cause of the lifted pavers. His recommendation to remove the tree is entirely based on assumptions.
• The applicant has not carried out any investigations to determine if roots are the cause of the lifted pavers or the sticking of the kitchen door.
• As a result of the arborist’s report and at the request of the applicant, the respondents applied to Marrickville Municipal Council to have the tree removed. This application was refused by Ms O’Connell, the council’s Tree Management Officer. When she inspected the tree she did not look at the tree, or the alleged damage, from Mr Fisher’s property. When questioned by Mr Fisher at the on-site hearing as to whether she had changed her mind given that she had now seen the tree from his property, she stated that she had not and that she would not approve the removal of the tree.

10 With respect to the concerns raised by the applicant, the Trees (Disputes Between Neighbours) Act 2006 is restricted to actual or potential actual damage being caused to property or injury to persons. In Robson v Leischke [2008] LEC 152 (1 May 2008) at 56, Preston CJ states that mere encroachment is not damage and in 169 that damage must be proved.

11 After viewing the site, it can be concluded that no injury to any persons has occurred as a result of the tree, nor is it likely to. There is no substantiated evidence to indicate that the crack in the wall, the mounding of the driveway and the sticking of the gates and kitchen door are directly related to the tree. Even if tree roots were to be found, the impacts are very minor and there are other contributing factors.

12 As none of the parts of s 10(2) of the Act are adequately satisfied, the Orders of the Court are that the application is refused.

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