Kuhlmann v Hanna

[2010] NSWLEC 1042

Land and Environment Court

of New South Wales

CITATION:	Kuhlmann v Hanna [2010] NSWLEC 1042
PARTIES:	APPLICANT D Kuhlmann RESPONDENT L Hanna
FILE NUMBER(S):	20915 of 2009
CORAM:	Moore SC
KEY ISSUES:	TREES (NEIGHBOURS) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	3 March 2010
EX TEMPORE JUDGMENT DATE:	3 March 2010
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

3 March 2010

09/20915 Kuhlmann v Hanna

JUDGMENT

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

1 SENIOR COMMISSIONER: Located in the north-western corner of Mr Hanna's property at Winston Hills is a large Jacaranda tree that has three major trunks. Elements of the tree overhang neighbouring properties to the west – one of which is owned by Mr Kuhlmann who is the applicant in these proceedings.

2 There are three trunks of the tree with one trunk joining the other two close to the ground and the second and third trunks rising some half a metre or so above that before separating. I have carefully examined the junction at each of those trunk separations; I have removed the loose detritus located therein and then satisfied myself that there is no fungal growth and no instability or other defect in that attachment. I have also had a careful look at the joint of the major branch that overhangs Mr Kuhlmann's property, at the point where it attaches to the trunk from which it springs. There is no evidence of disturbance with or defect in that attachment.

3 The application comes to the Court on two bases. First, in a 2006 storm, Mr Kuhlmann says a branch fell from the tree onto his roof during those stormy conditions and damaged a number of roof tiles – thus necessitating replacement of some thirteen tiles; two linear metres of his aluminium guttering; and the rebedding and repointing of a number of elements of his roof ridge. Mr Kuhlmann has provided an invoice that shows that this occurred. Mr Kuhlmann did not, at that time, make contact with Mr Hanna concerning the damage as Mr Kuhlmann has informed me that he preferred to be self-reliant.

4 The second element upon which Mr Kuhlmann bases his application is the falling of material from the tree – seedpods, leaves and small stems and the like – onto the roof of his shed – this, he says, will, over a period of time, cause damage to the shed requiring the replacement of its roof.

5 Mr Kuhlmann invites me to have regard to the condition of a shed immediately to the north of his property (that shed is not owned by him) and the state of its roof. Although there may have been deposition of material on this shed from the Jacaranda tree, this is not the subject of this application and is outside the jurisdiction of the Court on this occasion.

6 The tests that I am obliged to consider arise under s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). In this case, I am satisfied that the first element of s 10(2)(a) has been satisfied (that is that the tree has, in the past, caused damage to Mr Kuhlmann's property).

7 The branch that fell from the tree in 2006, however, fell at that time during stormy weather and Mr Kuhlmann is unable to inform me as to whether or not it was dead at the time.

8 I have carefully examined the canopy of the tree. There is no significant deadwood in the canopy and certainly no deadwood I am able to observe having a diameter of greater than 20 mm at the point of attachment to the tree. I am satisfied that there is no significant risk of anything further detaching from the tree in the near future to fall on Mr Kuhlmann's property. I am therefore not satisfied, on that basis, that I should order any intervention with the tree.

9 Mr Hanna drew my attention to a tree dispute principle published by the Court (in Barker v Kyriakides [2007] NSWLEC 292) that those who have the benefit of trees in an urban environment have a responsibility to undertake appropriate minor and regular maintenance of their own property to remove the detritus of leaves, twigs, nuts, berries and the like falling from such trees. There is nothing exceptional concerning the roof of Mr Kuhlman’s shed in this case that would cause me to set aside that principle and, as a matter of discretion, I adopt it.

10 As a consequence, I am not satisfied that there is any basis upon which I should order interference with or removal of any of the elements of the Jacaranda.

11 As I explained to Mr Kuhlman during the course of the proceedings, this legislation – the Trees Act – is coercive in nature and empowers the Court to order Mr Hanna to do things to his own tree that he does not wish to do. In this case, I am satisfied that there is no proper basis upon which I could do so. However, my decision does not act remove any right that Mr Kuhlman might have under the local council's tree preservation order to make such application to the council he might see fit under that order.

12 As a consequence of all the foregoing, the application is dismissed.

Tim Moore

Senior Commissioner