Jacobsen v Rowell

[2007] NSWLEC 763

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:    Jacobsen v Rowell & Anor [2007]  NSWLEC 763

PARTIES:
APPLICANT
Philip Jacobsen

RESPONDENT
Gordon Rowell & Anor

FILE NUMBER(S):   20681  of       2007

CATCHWORDS:      Trees (Neighbours) :- removal of the trees or pruning of 6 Brushbox trees, danger to life and property, safety involved with removing debris. 

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

CORAM:       Murrell CFakes AC

DATES OF HEARING:       24/10/2007

EX TEMPORE DATE:         24 October 2007

LEGAL REPRESENTATIVES

APPLICANT
Mr P. Jacobsen, litigant in person

RESPONDENT
Mr G. Rowell & Mrs Rowell, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C and Fakes AC

24 October 2007

20681 of 2007     Philip Jacobsen v Gordon Rowell & Anor

JUDGMENT

1. This is an extemporaneous decision. The applicant made an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning 6 Brushbox trees located on the property at 120 Bellevue Road, Bellevue Hill. The property where the trees are located is owned by Mrs Rowell and the estate of the late Mr Gordon Rowell. The trees are 6 Brushbox and the application has been made by Mr Jacobsen of 122 Bellevue Road, Bellevue Hill.

1. The applicant seeks removal of the trees or pruning of the trees as he considers the trees are a danger to life and property and the roots of the trees may destabilise a brick retaining wall between the 2 properties. He also has issues of safety involved with removing debris from the gutters of his house. 

1. The application now before the court was made after the failure of a live branch of around about 100 mm in diameter in January 2007. The applicant also asserts that the species is inappropriate for this location.

2. Today on site we have heard from Mr Clive Rowell, son of the owners, Mr Jacobsen, the applicant, Mr Charles Haney, Arborist for the applicant, Mr David Shields, from Woollahra Council, and Ms Gay Gollan, neighbour of 20 years from 135 Bellevue Road, Bellevue Hill.

1. We have inspected the trees from both properties and the retaining wall from the applicant’s property. We note that the trees are healthy, however in some time past they have been lopped and some branches do overhang the adjoining property, but the major shoots are now deemed to be structural.

1. Under the terms of the Act, in s.10(2) we have to determine whether:

   the tree has caused damage to the applicant’s property,
   is the tree now causing damage to the applicant’s property,
   is the tree likely in the near future to cause damage to the applicant’s property, and
   is the tree likely to cause injury to any person.

2. Only if we determine that any of those have been met are we able to make orders. In the matter of the retaining wall, there was no evidence of displacement by any roots, there was some very minor cracking of mortar between sandstone blocks. We also note that trees have been planted by the applicant and an irrigation system has been installed by the applicant along the top of the retaining wall.  We are not persuaded that any action needs to be taken with respect to the trees (the subject of the application) in terms of the retaining wall.

1. In the matter of risk to property and persons, the trees have been here for at least 50 years and in that time one live branch is noted to have failed in the 11 years that the applicants have lived adjacent to these trees. Under s. 10(2) of the Act we find that there is insufficient reasons to make an order regarding the overhanging limb. We note that the Tree Preservation Order for Woollahra Council allows for a 2 m clearance for buildings.

1. In the matter of the roof and debris, consistent with the Tree Dispute Principles as set out by the Court in Barker v Kyriakidis we are satisfied that it is not appropriate to order the removal of or in this case, the significant interference with the tree on the basis of it dropping leaves, twigs and the like on the applicant’s property. As discussed in the principles, for people who live in treed urban environments there is a necessary assumption that housekeeping is required in order to appreciate and retain the benefits of such treed urban environments. We are therefore not satisfied that the dropping of leaves and the like from the tree provide any basis for ordering the removal or pruning of the trees. 

2. In our finding we have relevantly considered matters under s 12 of the Act and we are of the opinion that “the trees make a contribution to the local ecosystem and biodiversity”. They also are in “character with the age and style of the house and gardens in the area” and in terms of s 12(e) and (f) of the Act these trees make a contribution to the locality and public amenity.

1. Under s 12(h) we are satisfied that the ‘Tree Preservation Order’ allows for the applicant to take measure to trim branches within 2 m of his building. We understand and note that the tree owner does not object to this provision of the ‘Tree Preservation Order’.  We also consider that as to the suitability of the tree species, the trees are appropriate for the site and location.

2. Accordingly for the reasons given above the application is dismissed.

   ___________________          ____________________

   J Murrell   J Fakes

Commissioner of the Court          Acting Commissioner of the Court