Mace v Graham

[2007] NSWLEC 485

Land and Environment Court

of New South Wales

CITATION:	Mace v Graham [2007] NSWLEC 485
PARTIES:	APPLICANT Robbie-Anne Mace RESPONDENT Necia Graham
FILE NUMBER(S):	20493 of 2007
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Nuts and palm fronds
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	30 July 2007
EX TEMPORE JUDGMENT DATE:	30 July 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

30 July 2007

07/20493 Robbie-Anne Mace v Necia Graham

JUDGMENT

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

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning two trees located on a property at 8 Judd Street, Mount Hutton. This property is owned by Ms Necia Graham.

2 The trees are Cocos Palms (Arecastrum romanzoffianum) (the trees).

3 The application has been made by Ms Robbie-Anne Mace, the neighbour to the east. Her application seeks orders from the Court for “the trees to be totally cut down”.

4 The relevant provisions of s 10(2)(a) and (b) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree.

5 These tests are:

1. Has the tree caused damage to the applicant’s property?
2. Is the tree now causing damage to the applicant’s property?
3. Is the tree likely in the near future to cause damage to the applicant’ property?
4. Is the tree likely to cause injury to any person?

6 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

1. Is the damage or risk sufficiently serious to warrant the Court intervening?
2. If so, what should the Court order?
3. Who should pay to carry out those orders?

7 We have examined the two Cocos palms and have reached the following conclusions with respect to them:

• Fronds of the palms do overhang the boundary, and we accept the evidence provided by Ms Mace that three fronds have fallen into her yard over the previous three years.
• Seeds of the palms have fallen into Ms Mace’s yard, and seeds were observed in the yard. We accept that from time to time the number of seeds may be greater than seen at this inspection.

8 We accept that the seeds may cause a risk of slip and fall injury, and that the tree closest to the common boundary is the greater contributor to the risk caused by the seeds.

9 We then turn to consider if we should order intervention with the trees.

10 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 the trees on the basis of their dropping of fronds and seeds on the applicant's property.

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

12 We are therefore not satisfied that the dropping of fronds and seeds from the trees will provide any basis for ordering removal or intervention with these trees.

13 As a consequence, the application is dismissed.

Tim Moore

Commissioner of the Court

Peter Thyer

Acting Commissioner of the Court