Low v Elliott

[2007] NSWLEC 809

Land and Environment Court

of New South Wales

CITATION:

Low v Elliott [2007] NSWLEC 809
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Jonty Low

RESPONDENT
Kim Natalie Elliott

FILE NUMBER(S):

20828 of 2007

CORAM:

Hoffman C - Fakes AC

KEY ISSUES:

Trees (Neighbours) :- removal or treatment of 5 lemon scented gum trees, damage to property.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

21/11/2007

EX TEMPORE JUDGMENT DATE:

21 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr S. McDougall, solicitor
of Bray, Jackson & Co

RESPONDENT
Ms M L Taylor, solicitor
of Bartier Perry Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

21 November 2007

20828 of 2007 Jonty Low -v- Kim Natalie Elliott

JUDGMENT

1 This appeal is in regard to an application for removal or other treatment of 5 lemon scented gum trees in a residential property at 17 Brae Street, Bronte. The applicant is next door in No 15 Brae Street, Bronte.

2 Appearing for the Respondent: Ms M L Taylor solicitor

Appearing for the Applicant: Mr S McDougall solicitor

Also present:

Mr J Hilliard, the Tree Management Officer Council

Mr G Holden – Arborist for the applicant

Mr J Hunt

Mr J Low – father of the applicant

M J Rafaletos – applicant’s engineer

Mr T Walker – respondent’s engineer

Mr P Castor – respondent’s Arborist

Mr C To – assisting Ms Taylor

3 A general description of trees at the location is that they adjoin the boundary of 15 Brae Street close to the side boundary with No 15’s garage and extending from the garage along the boundary is a retaining wall of substantial proportions.

4 Drawings were produced showing the structural sizes of the garage wall footings and the garden retaining wall. It was noted that with the trees being numbered 1 to 5 trees, 1 and 2 are adjacent to the garden wall, and trees 3, 4 and 5 are adjacent to the garage. Trees 1 and 2 seem to be somewhat closer to the wall than 3, 4 and 5 to the garage. The trees have already reached approximately 10m in height and they have already had their trunks pruned to retain that height and there had been some pruning of branches on the western side above No 15.

5 It was relevant to the planting of the trees that they provide shade to large windows on the western side of No 17. It is intended, according to the respondent, to maintain the trees at approximately their current height because any growth would raise the canopy to such a height there would be no screening from the western sun. This was an important consideration in the choice of the trees and their location.

6 In regard to the applicant there are a number of matters raised in the application. The main concerns being potential damage by tree roots moving the garden retaining wall and the garage retaining wall, and the branches overhang the applicant’s property and pruning or removal of the trees would lessen the excessive leaf dropping that blocks roof gutters and stains courtyard paving, and there was also reference to some of the trees being close to powerlines.

7 At the hearing on site we heard from the Aborists and it is clear from that evidence that there is no existing damage to either retaining wall, and that the most likely time frame for any damage to occur would be in 5 to 10 years, provided the trees are maintained at or below the 10m height limit which they currently enjoy.

8 It was also noted that the two walls are actually common boundary walls built equally on No 15 and No 17, so both owners share responsibility for the walls.

9 The primary submission of the respondent is that s10 (2) of the Trees (Disputes between Neighbours)Act 2006 is not met in that there is no damage presently, and both engineers are agreed upon that. The Aborists evidence at best is that damage is more that 2 years away, if it occurs at all, and as a result the jurisdiction is not activated.

10 I have to say that Commissioner Fakes and myself agree with that submission and find that at this time there is no reason for us to make a determination except to dismiss the appeal on the basis that the jurisdiction is not activated.

11 The Orders of the Court are:

1. That the appeal is dismissed

2. The Exhibits are returned the parties.

___________________

K G Hoffman
Commissioner of the Court

___________________

J Fakes
Acting Commissioner of the Court

07/01/2008 - Correction of name - Paragraph(s) Coversheet and front page of judgment.