Leahy v Godbier; Horvath v Godbier

[2007] NSWLEC 313

Land and Environment Court

of New South Wales

CITATION:

Leahy v Godbier; Horvath v Godbier [2007] NSWLEC 313

PARTIES:

APPLICANTS - FIRST MATTER
Ken & Christine Leahy

APPLICANTS - SECOND MATTER
Vidor & Sue Horvath

RESPONDENTS - BOTH MATTERS
David & Barbara Godbier

FILE NUMBER(S):

20154 and 20155 of 2007

CORAM:

Fakes AC - Moore C

KEY ISSUES:

Trees (Neighbours) - Neighbour Application :-

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

1 June 2007

EX TEMPORE JUDGMENT DATE:

1 June 2007

LEGAL REPRESENTATIVES:

APPLICANTS
In person (both matters)

RESPONDENTS
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

FAKES AC
MOORE C

1 June 2007

07/20154 Ken & Christine Leahy v David & Barbara Godbier

07/20155 Vidor & Sue Horvath v David & Barbara Godbier

JUDGMENT

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

1 COMMISSIONER FAKES: These are applications pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), concerning two trees located on a property at 27 Margaret Street, Cootamundra. Mr and Mrs Godbier own this property.

2 The trees are mature Southern Blue Gums (Eucalyptus globulus). Both trees were present and well established when the Leahy and Godbier dwellings were built about 30 to 35 years ago.

3 The first application has been made my Mr and Mrs Leahy at 25 Margaret Street, Cootamundra and the second by Mr and Mrs Horvath at 3 Elizabeth Street, Cootamundra. The latter is a property adjoining the property on which the trees are located.

4 Both applications seek orders from the Court that the trees be removed.

5 With respect to the Leahy’s application to remove the tree on the Godbier’s property which is closest to their boundary, we have carefully inspected the tree for signs of weak attachment of branches; any fungal activity and for indications that the tree may fail at ground level. No defects are apparent.

6 We are satisfied on the basis of this inspection that none of the grounds under s 10(2) of the Act have been satisfied in that the tree has not caused, is not causing and is not likely in the near future to cause damage to the applicants’ property nor is there any risk of injury to any person.

7 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, or significant interference with, the tree on the basis of its dropping its leaves, twigs and the like on the applicants’ property.

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

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

10 As a consequence, the Order of the Court in Matter No. 20154 of 2007 is that the application is refused.

11 With respect to the application made by Mr and Mrs Horvath in relation to the Blue Gum growing in the Godbier’s property that is closest to their boundary, this tree was similarly inspected for signs of potential failure – both partial and complete.

12 This tree has no visible defects.

13 Based on this inspection, we are satisfied that none of the grounds under s 10(2) have been satisfied for this tree.

14 For that reason the Order of the Court in Matter No. 20155 of 2007 is also that the application is refused.

Judy Fakes Tim Moore

Acting Commissioner of the Court Commissioner of the Court