Hadjichryssafis v Mr and Mrs Kilby

[2007] NSWLEC 730

Land and Environment Court

of New South Wales

CITATION:

Hadjichryssafis v Mr & Mrs Kilby [2007] NSWLEC 730

PARTIES:

APPLICANT
Lucy Hadjichryssafis

RESPONDENT
Mr & Mrs Kilby

FILE NUMBER(S):

20783 of 2007

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) :-

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

31/10/2007

EX TEMPORE JUDGMENT DATE:

31 October 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mrs Effie Gastelarris, litigant in person
Ms Victoria Hadjichryssafis, litigant in person

RESPONDENT
Mrs Gail Kilby, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

31 October 2007

20783 of 2007 Lucy Hadjichryssafis v Mr & Mrs Kilby

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mrs Lucy Hadjichryssafis of 34 Bruce Street Brighton Le Sands concerning two Callistemon salignus (Willow Bottlebrush), the trees, located on a property at 39 Gordon Street Brighton Le Sands.

2 The property on which the trees are located is owned by Mr and Mrs Kilby. Mrs Gail Kilby was present on site. Mrs Hadjichryssafis was present but largely represented by her daughters, Mrs Effie Gastelarris and Ms Victoria Hadjichryssafis. Also on site was Mr Peter Alland of Rockdale City Council.

3 The application seeks orders from the Court that the trees be removed or pruned as the trees may cause damage to the gutters of the applicant’s house, they could fall and cause injury to herself or her grandchildren, they drop litter in the gutters and on the ground, they are a potential fire hazard, and could be dangerous in a storm. The applicant was concerned that after a recent storm, a broken branch was hanging over the footpath beside her house that runs beneath these trees and that there was considerable debris on the ground. This path is used for access to the laundry and the garbage bins.

4 An inspection from the applicant’s property showed that the trees had been pruned away from the boundary and, apart from a few small branches, were not overhanging the boundary fence. This pruning had been carried out by Mr Kilby. It was stated by the applicant’s daughters that no damage had yet been caused but the concern was that it might occur, especially in stormy conditions. The Kilbys do not want to remove the trees.

5 An inspection of the trees from the Kilby’s property showed them to be located approximately 1m from the boundary fence. Approximately 95% of the foliage was located on the Kilby’s property. The trees were approximately 7 m tall, in healthy condition and, according to the applicants, approximately 15 years old. They were planted when the villas that occupy 39 Gordon Street were constructed. These trees would be considered to be at a mature stage and thus growing quite slowly. There were no signs of recent disturbance or soil movement that would indicate a compromised root system or contribute to the failure of the trees onto the applicant’s property.

6 Section 12 of the Act requires me to consider the values of the tree. Sections 12(d) and (e) apply in that the trees do make a contribution to local biodiversity and to the scenic value of the land on which they are located. In terms of section 12 (h)(ii), Mr Kilby has taken steps to minimise the overhang and impact of the branches on the applicant’s property by pruning them to the boundary fence. Mrs Kilby confirmed that this action would continue. The applicant stated that (she the applicant) had not carried out any pruning.

7 Section 10(2) of the Act requires me to consider, and be satisfied, that one or more of four conditions are met by the trees, that are subject to an application, before the Court has jurisdiction to make an order. These matters are: have the trees caused, are they causing or are they likely in the near future to cause, damage to the applicant’s property or injury to any person.

8 While I understand the applicant’s fear of a catastrophic outcome from the failure of a branch or a whole tree, I am also satisfied that the likelihood of this happening is very remote given the small size of the trees, the small dimensions of branches close to the property, and the lack of evidence of any destabilisation of the trees. In very windy weather, it is also less likely that the side pathway would be used. I am also satisfied that Mr Kilby has taken measures to abate the falling of debris and branches onto the applicant’s property, and will continue to do so.

9 In the matter of leaf litter, consistent with the tree dispute principle set out by the Court in Barker v Kyriakides, I am satisfied that it is not appropriate to order the removal of, or in this case the significant interference with the trees on the basis of their dropping of leaves, twigs and the like onto the applicant’s property. As discussed in this principle, for people who live in treed urban environments, there is some necessary degree of assumption of housekeeping in order to appreciate and retain the benefits of having such a trees urban environment.

10 In conclusion, I am not satisfied that any of the matters under section 10(2) of the Act are met and the application is dismissed.

11 During the course of the hearing, Mr Peter Alland of Rockdale City Council informed the parties that the applicant does not have to get permission from Council, under its Tree Preservation Order, to remove any branch up to 200 mm in diameter that overhangs her property but that any pruning work carried out by the applicant must not extend beyond the property boundary.

___________________

Judy Fakes
Acting Commissioner of the Court