Fletcher v Debney

[2008] NSWLEC 1096

Land and Environment Court

of New South Wales

CITATION:

Fletcher v Debney [2008] NSWLEC 1096

PARTIES:

APPLICANT
Annabella Fletcher

RESPONDENT
Betty Phyllis Debney

FILE NUMBER(S):

20091 of 2008

CORAM:

Hussey C - Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Damage from Cyrpress Pines and Jacaranda

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

28/02/2008

EX TEMPORE JUDGMENT DATE:

28 February 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms M. Carpenter, barrister

RESPONDENT
Mr P. McKewen, solicitor
of Pryor Tzannes & Wallis

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

28 February 2008

20091 of 2008 Annabella Fletcher v Betty Phyllis Debney

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

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (DisputesBetween Neighbours) Act 2006 concerning:

i) 6 Leighton green cypress pines, and
ii) 1 Jacaranda, which are situated on 19 Raglan Street, Mosman.

2 The application has been made by Ms A Fletcher from 21 Raglan Street, Mosman.

3 The applicant seeks orders from the Court for:

a) The removal of 6 Leighton green cypresses.
b) Compensation of $200 towards repair of tiles caused by the Jacaranda.

4 The relevant provisions of s 10 (2) of the Act require the Court to be satisfied that one or more of the following four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree.

5 These tests are:

• Has the tree caused damage to the applicant’s property?
• Is the tree causing damage to the applicant’s property?
• Is the tree likely in the near future to cause damage to the applicants property?
• Is the tree likely to cause injury to a person?

6 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary question of:

· Is the damage or risk sufficiently serious to warrant the Court Intervening?
· If so, what should the Court order?
· Who should pay to carry out those orders?

The Evidence.

7 These proceedings commenced with a view involving both properties and the subject trees. Technical evidence was given by the respective engineers Mr P Crane (for respondent) and Mr J Niland (for applicant). Evidence was also given by Mr I English (arborist for the respondent) and Mr J Ford (botanist for the applicant).

8 Following discussions at the site, the parties agreed to the matter being conducted by an On-site hearing.

9 The Court presented its preliminary findings that:

Cypress pines

10 The Court notes the concerns expressed about the suitability of these species in urban areas and the claim that they have caused damage to the masonry retaining wall between the two properties, necessitating their removal. Also, that the respondent has these trees trimmed and will maintain them at the current height, which should inhibit root growth.

11 However, the Courts inspection of the wall and consideration of the evidence:

• Does not indicate any damage that could be attributed to these trees. Whilst there is evidence of some leaching of the masonary bonding material, there was no compelling evidence that the trees were the cause.
• Does not indicate these trees are causing damage to the applicants property.
• Does not indicate the trees are likely to cause damage in the near future. In this regard, the Court has considered the applicants evidence that the constrained root system may cause pressure on the retaining wall, but considering that this is a structurally designed retaining wall that has been in place for approximately 25 years and the trees have been planted for some 5 years, there is no compelling evidence that the trees are likely to cause damage in the near future, which is taken as a 12 month, approximate time-frame.
• The trees are unlikely to cause injury to people, because of their location, proximity to the wall, stability of their likely matted root system and intervening structures that would mitigate any possible injury. In this regard, the Court relies on Mr English’s evidence that any risk of injury is absolutely minimal and not sufficient to warrant removal of the trees.

12 From these findings, the Court indicated that none of the aforementioned tests were satisfied and the evidence indicated that the application should be dismissed. After further discussions between the parties, no further submissions were made.

1 The application is dismissed.

Note. The Court notes the respondents undertaking, without admissions regarding damage by the Jacaranda tree , to pay $200 within 7 days.

___________________

R. Hussey
Commissioner of the Court

___________________

P. Thyer
Commissioner of the Court
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