Franklin v Firth

[2007] NSWLEC 521

Land and Environment Court

of New South Wales

CITATION:	Franklin v Firth [2007] NSWLEC 521
PARTIES:	APPLICANT Dulcie Franklin RESPONDENT Jeanette Firth
FILE NUMBER(S):	20495 of 2007
CORAM:	Bly C - Tuor C - Thyer AC
KEY ISSUES:	Trees (Neighbours) :- Damage caused by Camphor Laurel trees to adjoining property
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	15/08/2007
EX TEMPORE JUDGMENT DATE:	15 August 2007
LEGAL REPRESENTATIVES:	Mrs D Franklin - litigant in person Mrs J Firth - litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C, Tuor C and Thyer AC

15 August 2007

20495 of 2007 Franklin v Firth

JUDGMENT

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) in relation to Camphor Laurel trees located on a property at 2 Northcote Street, Caringbah (the site).

2 Mrs J Firth owns the site. Three Camphor Laurel trees adjoin the southern boundary of the site. A forth Camphor Laurel tree is located in the south west corner of the site.

3 The application has been made by Mrs D Franklin of 4/137A Gannons Road, Caringbah. She is seeking orders from the Court requiring the removal of the two trees closest to her property.

4 Section 10 of the Act relevantly provides:

(1) The Court must not make an order under this Part unless it is satisfied:
(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b)…..
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(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.

5 The evidence of Mrs Franklin is that roots from the trees have lifted the paving in her rear courtyard. She has previously reset the pavers at which time a number of roots were found which smelt of camphor. She has also found camphor smelling roots in the front garden of her property and is concerned that the blockage to her toilet is being caused by damage from the roots. She does not want the trees to be removed but is concerned that they are causing and will continue to cause damage to her property and is that she may be injured by the unevenness of the paving which is again starting to lift.

6 Mrs Firth would prefer not to remove the trees but is concerned that damage to her neighbour’s and property may result from her trees property and about possible injuries that might result from uneven paving.

7 We have examined the trees in the context of s 10(2) of the Act and conclude that while there is currently minimal damage to the paving of the adjoining property there is a likelihood that the trees will cause damage in the future and that this could result in injury to Mrs Franklin. It is not possible to determine which of the Camphor Laurel trees are or will cause the damage and therefore the removal of only two of the trees would be of limited utility. A preferable option, which is agreeable to both parties, is to provide a trench and root barrier which would limit the spread of roots from all the trees into the adjoining property. Mrs Firth agreed that this would be at her expense and could be undertaken within three months.

8 The orders of the Court are therefore:

1. In relation to the Camphor Laurel trees growing on 2 Northcote Street Caringbah a root barrier is to be installed within the property of 2 Northcote Street along the whole length of the southern boundary with 137A Gannons Road and continuing for a distance of two metres along the western boundary. The root barrier shall be in the form of a continuous high impact resistance plastic film, extending at least one metre deep or to rock if less than one metre.

2. Tree root pruning and root barrier installation shall be carried out by or under the supervision of an arborist having qualifications of at least AQF Level 3.

3. The root barrier and associated works shall be at the cost of the owner of 2 Northcote Street Caringbah and completed within 90 days of the date of these orders.

___________________

T A Bly
Commissioner of the Court