Holmes v Walburn

[2010] NSWLEC 1090

Land and Environment Court

of New South Wales

CITATION:	Holmes v Walburn & anor [2010] NSWLEC 1090
PARTIES:	APPLICANTS P & R Holmes RESPONDENTS A Walburn & J Wilkes
FILE NUMBER(S):	20071 of 2010
CORAM:	Moore SC
KEY ISSUES:	TREES (NEIGHBOURS) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592
DATES OF HEARING:	20 April 2010
EX TEMPORE JUDGMENT DATE:	20 April 2010
LEGAL REPRESENTATIVES:	APPLICANTS Second applicant in person RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

20 April 2010

10/20071 Holmes v Walburn & anor

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 SENIOR COMMISSIONER: Mr and Mrs Holmes made an application to the Court pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a number of trees of varying types of the located on the property immediately to the west and close to the boundary between their property and the property immediately to the west.

2 The trees on the property immediately to the west range in height from some 3 m at the street boundary through to a substantial Casuarina in excess of 8 m tall toward the rear along the boundary of the two properties. I have had the opportunity of inspecting the trees from the Holmes’ side of the fence and, to the extent necessary, inspecting the Casuarina and the rearmost tree (a small Ti-tree) from the tree owners’ side of the fence.

3 I am obliged by the Act to consider, in the first instance, wether the Court has jurisdiction to deal with the trees.

4 For the purposes of this determination, it is convenient to deal with the trees in two groups – the first comprising the trees between the front boundary back to (but not including) the Casuarina with the second group being the Casuarina and the small Ti-tree to the north of it.

5 With respect of the trees in the southern portion (that is the more substantial number of trees), Mr and Mrs Holmes raised a number of complaints that range from the tree at the street frontage having caused Mrs Holmes injury while gardening; through trees brushing against the structure of their house and damaging it to an acacia hanging over the fence and risking causing injury to her husband while he was mowing the lawn. As a consequence of her evidence and my observations, I am prepared to accept for the various bases outlined by Mrs Holmes that I have jurisdiction to deal with those trees.

6 During the course of the on-site hearing, the owners of the trees agreed that they would be prepared to enter into consent orders to prune these trees back to the boundary between the two properties and to maintain those trees pruned on that basis at regular intervals thereafter.

7 The tree owners having made that offer and Mr and Mrs Holmes having agreed to it (with Mr Holmes being represented by Mrs Holmes in those proceedings), I determine that the Court has jurisdiction with respect to those trees on various of the bases under s 10(2) of the Act and, as a consequence, I am prepared to give effect to the consent orders between the parties concerning this group of trees.

8 A different position arises with respect to the Casuarina. although there are pine needles dropped from the Casuarina into the Holmes’ backyard and although Mrs Holmes informs me that there is a substantial root network under her lawn (as would necessarily be the case for a tree of this nature), there is no demonstrable present damage being caused by that tree. Mrs Holmes informed me that, as a consequence of that tree, she and her husband have had to remove a row of decorative plantings that were undertaken along that fence line.

9 The necessity for that removal can only have had one of two causes. The first is that it may have been occasioned by denial of sunlight by the Casuarina to those plantings. If there were to have been a denial of sunlight, that is a matter that is expressly precluded from the Court's jurisdiction by virtue of the terms of the Act. As a consequence, I would not be able to make any order with respect to the Casuarina.

10 If that removal was as a consequence of the deposition of pine needles from the Casuarina and that had caused damage or death of those plants necessitating their removal, that would have constituted past damage – thus satisfying the first of the tests under section 10(2)(a) of the Act.

11 I proceed on the basis that that second possibility was the cause and thus proceed to consider whether, as a matter of discretion, I should make any order with respect to the Casuarina. I have uncontradicted evidence given by one of the owners of the trees that the Casuarina is used as a resting site for yellowtail black cockatoos – that is a matter in favour of this tree that is relevant for my consideration pursuant to s 12 of the Act. However, more importantly, the tree dispute principle adopted by the Court in Barker v Kyriakides [2007] NSWLEC 292 says that, for those who have the environmental and aesthetic benefits of trees in an urban environment, there is a responsibility to maintain a reasonable level of cleanliness as far as the twigs, fruits, nuts, berries, leaves and other detritus that might fall from such trees. Adopting and applying Barker v Kyriakides in these proceedings, as matter of discretion, the dropping of pine needles from this Casuarina does not provide any basis to make any order with respect to that tree.

12 The final tree is a small Ti-tree. Mrs Holmes is concerned that this tree is either a likely risk of injury or a likely cause of damage to the property as this tree is a risk of bushfire transmission to her property. Mr and Mrs Holmes have lived here for well over a decade and have experienced no bushfire during that time. I am not satisfied that there is any basis that I could conclude that that tree is a likely risk of injury. Second, the third test in s 10(2)(a) – likely cause of damage – is a test that applies only to the likely damage in the near future. The rule of thumb adopted by the Court in Yang v Scerri [2007] NSWLEC 592 is that the appropriate time for assessing the “near future” is that of approximately 12 months from the date of the hearing. It is appropriate to adopt that here. There is no basis upon which I can conclude that that tree is likely to cause damage to Holmes’ property in the next 12 months and there is therefore no basis, as a matter of jurisdiction, upon which I could make any order with respect to that final tree.

13 As a consequence of all the foregoing, is that the orders of the Court, by consent, are:

1. The respondents are to prune, back to the boundary of 3 Federal Avenue, Burrill Lake with the applicants’ property, all of the trees adjacent to this boundary to the south of the Casuarina located approximately three-quarters of the way to the rear boundary of the respondents’ property; and
2. The pruning in (1) is to be repeated as necessary to ensure that the trees to be pruned are maintained pruned as required by (1).

14 The further order of the Court is that:

3. The application was respect of the remaining two trees, a Casuarina and a Ti-tree, is dismissed.

Senior Commissioner