G Locchi v M Bevilacqua

[2007] NSWLEC 846

Land and Environment Court

of New South Wales

CITATION:	G Locchi v M Bevilacqua [2007] NSWLEC 846
PARTIES:	APPLICANT Grazia Locchi RESPONDENT M Bevilacqua
FILE NUMBER(S):	20896 of 2007
CORAM:	Tuor C - Fakes AC
KEY ISSUES:	Trees (Neighbours) :- removal of tree, injury to property and people
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	17/12/2007
EX TEMPORE JUDGMENT DATE:	17 December 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Non attendance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

Tuor C

17 December 2007

20896 of 2007 Grazia Locchi v M. Bevilacqua

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mrs Grazia Locchi of Unit 5 1-3 Willara Avenue Merrylands concerning a tree located on a property at 70 Clarence Street Merrylands. The applicant was assisted by Mr Michael Starr from Starr Partners Strata Development, the managing agents for the villas. The respondent, Mr Bevilacqua, did not attend but a phone message was left at the commencement of the hearing. Also in attendance were tree management officers from Holroyd City Council.

2 The tree in question is a Corymbia citriodora (Lemon-scented Gum). The property on which the tree is located is a rental property owned by Mr Bevilacqua. As a result of the absence of the tree owner or his tenant, the tree was only inspected from the applicant’s property.

3 Mrs Locchi has lived in her unit for 7 years and during that time 3 to 4 live branches of up to 4 m in length have fallen onto the roof of her unit or into the passage to her rear courtyard, some under normal weather conditions. Photographic evidence of fallen branches was noted. Some damage to her roof occurred on at least one occasion. Apart from concerns over future damage to her unit and injury to herself, she is also concerned that the roots of the tree are displacing pavers and a door frame. She is seeking the removal of the tree.

4 In 2006 Mrs Locchi contacted Holroyd Council and Mr Charles Manche, Tree Management Officer, gave evidence that he inspected the tree and contacted the owner to take action. There is no record of the owner taking any action.

5 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.

6 The inspection of the tree showed evidence of previously failed branches including one high in the canopy directly over Mrs Locchi’s roof.

7 Under s12 of the Act we consider that the tree, as part of a group of trees, makes a contribution to the natural landscape and scenic value of the land on which it is situated and to the local area. We also note the lack of action by the owner of the tree to take any steps to minimise the risk that this tree may pose to his neighbours.

8 We are satisfied that this tree has caused, and could in the near future cause damage to the applicant’s property, in particular, the dropping of limbs onto the roof. However, we are not satisfied that the removal of the tree is warranted.

9 In respect to the paving and the door frame, no trip hazards were obvious in the vicinity of the tree. It was observed that the paving was generally uneven, even at points away from the tree. It is unlikely that the unevenness of the paving is the result of the tree but may be related to the manner in which the paving was installed.

Order

10 The Court Orders that:

1. All branches overhanging the roof of 5/1-3 Willara Avenue Merrylands, are to be selectively pruned and removed by an AQF level 3 arborist engaged and paid for by the respondent. The work shall be performed in accordance with AS4373:2007 and is to be done within 90 days of the date of these orders.

2. The removal of branches is only to occur over the roof of 5/1-3 Willara Avenue Merrylands, and no other units.

3. Any necessary access to 5/1-3 Willara Avenue Merrylands to undertake the work is to be granted by the applicant.

___________________

Annelise Tuor
Commissioner of the Court

___________________

Judy Fakes
Acting Commissioner of the Court