Hill v Dance

[2007] NSWLEC 642

Land and Environment Court

of New South Wales

CITATION:

Hill v Dance [2007] NSWLEC 642

PARTIES:

APPLICANT
Joy Musgrave Hill

RESPONDENT
Ian and Carol Dance

FILE NUMBER(S):

20661 of 2007

CORAM:

Tuor C - Fakes AC

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :- Application for removal of 5 Cypress trees, damage to sewer pipes, cleaning of gutters and replacement of downpipes and claim for compensation.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

2/10/2007

EX TEMPORE JUDGMENT DATE:

2 October 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mrs J. Hill, litigant in person

RESPONDENT
Mr and Mrs Dance, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C
Fakes AC

2 October 2007

20661 of 2007 Joy Musgrave Hill v Ian and Carol Dance

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning 5 Cypressus species (cypress) of trees located on the property 62 Carlyle Road, East Lindfield. The property is owned by Mr and Mrs Dance.

2 The trees are located on the boundary between 60 and 62 Carlyle Road.

3 The application is made by Mrs J. Hill of 60 Carlyle Road, East Lindfield.

4 The applicant seeks orders from the Court that all Cypress trees are to be removed. The applicant also seeks compensation of $6071.64 to cover the costs of: clearing of the sewer at the rear of the property; the pruning of overhanging branches; the cleaning of gutters and the replacement of downpipes.

5 In the matter of leaf fall from the Cypress trees, consistent with the tree dispute principle set out by the Court in Barker v Kyriakides [2007] NSWLEC 292, we are satisfied that it is not appropriate to order the removal of the trees on the basis of the dropping of leaves, twigs and the like on the applicant’s property.

6 As discussed in the principle, for people who live in treed urban environments there is some necessary degree of assumption of housekeeping required in order to appreciate and retain the benefits of having such a treed urban environment.

7 We are therefore not satisfied that the dropping of leaves and the like from the trees will provide any basis for ordering removal or intervention with this tree.

8 However, the dropping of leaves and the like from the trees is clearly perceived as an inconvenience by Mrs Hill and we note the respondent’s undertaking to pay for the pruning of the trees to reduce the height and overhang of the trees in order to reduce the amount of leaf litter falling onto Mrs Hill’s property. While this is not something that would warrant the Court making an Order under s10(2) of the Act we acknowledge that this is a reasonable way to maintain good neighbourly relations.

9 Consistent with the above, the payment of compensation for cleaning of gutters and replacement of the down pipe is not warranted.

10 In the matter of the blocked sewer, roots taken from the sewer were inspected and we find that they are likely to be, in part, from the Cypress tress.

11 While the pipes are original terra-cotta dating from the construction of the house in the 60’s, they are unlikely to have been blocked in the absence of the Cypress trees. There is evidence that this has occurred in 2004 and more recently in 2007.

12 There are options for dealing with this including clearing the sewer approximately every 2 years or sleeving that the sewer. We consider that due to the age of the pipes, the applicant and the respondent should pay 50% each of the costs for the sewer work to date; being an amount of $88 for 2004 and $1740 for 2007.

13 We further propose to order that the sewer be cleared every 2 years or alternatively, that section of the sewer pipe affected by the roots, be sleeved, whichever is the cheapest option agreeable to both parties. The costs are to be shared by both parties on a 50:50 basis. Three quotes for this work are to be sought by the applicant and agreed by the respondent. This work is to be carried out within 12 months of these Orders being made.

14 The application to remove the trees is refused.

Orders

15 The Court makes the following orders:

1. The application to remove the Cypress trees is refused.

2. The application for compensation for pruning of the Cypress trees, clearing of gutters and replacement of downpipes is refused.

3. The parties are to pay 50% each of the costs for the sewer work to date; being an amount of $88 for 2004 and $1740 for 2007.

4. The sewer on 60 Carlyle Road is to be cleared every two years or alternatively that section affected by roots is to be sleeved, whichever is the cheapest option agreeable to both parties. The costs are to be shared by both parties on a 50:50 basis. Three quotes for this work are to be sought by the applicant and agreed by the respondent. This work is to be carried out within 12 months of these Orders being made.
The Court notes the undertaking of the respondent to pay for the pruning of the Cypress trees to reduce the height and overhang of the trees.

___________________ ___________________

Annelise Tuor Judy Fakes
Commissioner Acting Commissioner