Keith v Dawson

[2007] NSWLEC 844

Land and Environment Court

of New South Wales

CITATION:	Keith v Dawson [2007] NSWLEC 844
PARTIES:	APPLICANT Ian Keith RESPONDENT Brian Dawson
FILE NUMBER(S):	20977 of 2007
CORAM:	Brown C - Thyer AC
KEY ISSUES:	Trees (Neighbours) :- damage to property
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	13/12/2007
EX TEMPORE JUDGMENT DATE:	13 December 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Thyer AC

13 December 2007

20977 of 2007 Ian Keith v Brian Dawson

JUDGMENT

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 by Mr Ian Keith of 22 Celebes Street Kings Park concerning one Eucalyptus botryoides tree (the tree) located on 20 Celebes Street Kings Park owned by Mr Brian Dawson.

2 The extemporaneous decision was given on site on 13 December 2007 and the judgment reflects the findings and the background documentation provided as part of the proceedings.

3 Mr Keith’s application to the Court is to have property damage rectified and to have the tree removed although no monetary compensation is sought. The particular areas raised by Mr Keith relate to:

• damage to the concrete path along the side of his house,
• damage to the retaining wall on or near the common boundary, and
• blockage of gutters with leaves and consequent internal water damage.

4 Mr Dawson opposes the removal of the tree, and has presented an arborist’s report prepared in November 2007 by About Trees. The report concludes that the tree is in fair to average health and vitality, its overall structure appears to be sound and there are no apparent visible defects . The tree has an expected safe life expectancy of 5 – 15 years.

5 An inspection revealed that the tree is in the order of 15 m in height with a crown spread of approximately 10 m and trunk diameter of approximately 450 mm. The tree is mature, and has a well balanced crown. The foliage is slightly sparse but not unusual for the species. There is a large wound on the trunk extending from the ground to 2 m in height, and for about 40% of the circumference of the trunk. The exposed wood in this wound is however sound with no symptoms of wood decay.

6 The tree, the larger Spotted Gum street trees located on the footpath and in front of both Mr Keith’s and Mr Dawson’s properties and the smaller Eucalyptus nicholii tree in Mr Keith’s front yard form an attractive landscape element on the small rise where the properties are located. This group of trees and others like it provide a lightly wooded appearance to the Kings Park suburb.

7 In relation to the concrete path, the tree is located approximately 2 m from the south-eastern corner of Mr Keith’s house. The concrete path adjoins Mr Keith’s house and the retaining wall approximately 0.5 m high and generally in the vicinity of the common boundary. We observed that two slabs of Mr Keith’s concrete path appeared to have been replaced near the tree. We accept Mr Keith’s advice that the path was lifted and replaced about two years ago and that tree roots were removed from under the path. We did not observe any damage to the concrete path (either the new section and the old section) and there was no basis to accept that tree roots would damage the concrete path or Mr Keith’s path or house in the near future.

8 We observed that the retaining wall had failed near the tree. The thin hardwood timbers had decayed and become detached from the 40 mm pipe posts that had bent downslope. We did not observe any tree roots exposed behind the timbers. We noted that the retaining wall had failed in a similar manner in an area where there were no trees. Consequently, we are not satisfied that the retaining wall has been damaged by the tree and consider that the wall failed due to its age and inadequate materials and construction.

9 We observed an amount of leaves and twigs on the roof and in the guttering of Mr Keith’s house and that a small length of gutter guard had been installed but that it was not properly in place, was not of sufficient length and not of an adequate type to keep the guttering clean.

10 In relation to fallen leaves, twigs and small branches, we are satisfied that the circumstances fall within with the Court's decision in Barker v Kyriakides [2007] NSWLEC 292, where it states:

11 For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

12 We are not persuaded that ceiling damage to Mr Keith’s kitchen, located at the other side of the house from the tree, can be attributed directly to the tree.

13 For the above reasons, we are not satisfied that the Court should order any interference with the tree.

14 We note however that the parties have come to an agreement for management of the tree, and therefore the application is dismissed noting the agreement of the parties as follows:

1) To the extent that Council consent is granted, Mr Keith may trim the tree branches to the boundary and further as required for such trimming to comply with AS 4373 – 2007 Australian Standard for Pruning of Amenity Trees;
2) The branch trimming shall be at Mr Keith’s cost;
3) The branch trimming shall be carried out by an arborist holding AQF Level 3 qualifications and suitable insurances;
4) The arborist shall be given access to carry out that part of the work that must be done on Mr Dawson’s property. The access shall be on reasonable notice at a reasonable time and Mr Dawson is entitled to supervise that access;
5) Mr Keith shall remove the trimmed branches from the properties at his cost;
6) If excavation for repair of the retaining wall exposes significant tree roots that need to be cut, Mr Dawson shall be advised so that if he wishes, he can arrange for an arborist to give advice.

___________
G T Brown
Commissioner of the Court

___________
Peter Thyer
Acting Commissioner of the Court