Gumieniuk v Levelle

[2009] NSWLEC 1273

Land and Environment Court

of New South Wales

CITATION:

Gumieniuk v Levelle [2009] NSWLEC 1273

PARTIES:

APPLICANT
Zbigniew (John) Gumieniuk

RESPONDENT
David & Kerry Levelle

FILE NUMBER(S):

20259 of 2009

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

DATES OF HEARING:

14 August 2009

EX TEMPORE JUDGMENT DATE:

14 August 2009

LEGAL REPRESENTATIVES:

APPLICANT
Zbigniew (John) Gumieniuk (litigant in person)

RESPONDENT
David & Kerry Levelle (litigants in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

14 August 2009

20259 of 2009 Zbigniew (John) Gumieniuk v David & Kerry Levelle

JUDGMENT

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 Gumieniuk, the owner of a property at 25 Stephanie Street Padstow, against the owner of a tree growing at 10 Jeanette Street Padstow. That property is owned by Mr and Mrs Levelle. The applicant’s property is currently tenanted by Ms Narelle Smith who raised concerns about the tree with Mr Gumieniuk.

2 The applicant is seeking the removal of the tree as he contends that the tree could cause damage to his property or injury to persons should it fail or should branches fall from the tree. He is also concerned about possible root damage to the concrete slab of the garage that is immediately adjacent to the tree.

3 The tree is a mature Acmena smithii (Lilypilly); mistakenly identified in the application as a Privet. It is approximately 12-14 m tall and is growing in a linear garden bed at the rear of the respondents’ property within 200 mm from the boundary fence with the applicant’s property.

4 The tree has 3 main stems arising from the trunk about 800-900 mm above ground level. There is included bark between the stems but there are no signs of cracking or reactive growth. There is evidence of some pruning or lopping on the respondents’ side. According to Mr Levelle, this pruning was carried out by the previous owners. The respondents have owned their property for about 11 years.

5 The rootzone of the tree is largely paved on the respondents’ side. There is some slight uplifting of pavers. According to Mr Levelle, the pavers were there when he purchased the property and, apart from filling in a swimming pool, he has made no changes to the tree’s environment.

6 The tree was also inspected from the applicant’s property. The tree overhangs a garage that has been converted into an enclosed entertainment area. It is constructed on a substantial concrete slab. No cracking, lifting or any other damage to the slab was seen. The applicant confirmed that whilst there was no damage now, he was concerned about possible future damage.

7 Ms Smith had retained a branch that she stated had fallen from the tree about 2 months ago under normal weather conditions. The branch was a live branch when it fell. It was approximately 1200 mm long and about 30 mm in diameter. It appeared to have stripped or damaged bark at the basal end. The density of the canopy made it difficult to determine from where the branch had failed. There were no obvious failure points for that particular branch.

8 There was evidence of some old pruning cuts and one stub of a larger diameter branch – perhaps 75mm, that had failed in the past but not in the vicinity of the direction pointed out by Ms Smith. Ms Smith also stated that the tree had shed branches of varying sizes, from quite small to the size of the one that she retained, during the 18 months that she has resided there. Only the one branch had been retained.

9 Apart from one declining branch in the upper central section of the canopy, the foliage is consistent with a normal healthy individual of this species and age. There was very little dead wood within the canopy. No unusual or included branch attachments were noted.

10 Under section 12 of the Act, the Court must consider a number of matters. The relevant clauses in this case are:

(a) The tree is wholly located on the respondents’ property.
(d) The tree is a native species that supports local fauna and thus makes a contribution to biodiversity.
(e) The tree contributes to the scenic value of the land on which it is growing. The respondent stated that he values the shade that the tree provides to his house.
(f) The tree is visually prominent from both Jeanette and Stephanie Streets and thus contributes to public amenity.
(h)&(i)(ii) No pruning has been carried out by either the applicant or the respondents. The applicant was unaware of any options that may be afforded by Bankstown Council’s Tree Preservation Order.

11 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.

12 In this matter, the tree has not caused, is not causing and is unlikely, in the near future, to cause damage to the applicant’s property. Therefore, as none of the tests under s 10(2) are satisfied, the application to remove the tree is refused.

13 Similarly, the tree has not caused any injury to any persons. Despite the evidence of one fallen branch, the absence of any obvious defects in the canopy overhanging the applicant’s property suggests that there is a low probability of the risk of injury. Therefore, on balance, the tests under section 10(2), as they relate to injury, are not adequately satisfied.

14 The order of the Court is that the application to remove the tree is dismissed.

___________________

J Fakes
Acting Commissioner of the Court