McCallum v Yateem

[2007] NSWLEC 522

Land and Environment Court

of New South Wales

CITATION:	McCallum v Yateem [2007] NSWLEC 522
PARTIES:	APPLICANT Giselle McCallum RESPONDENT Sabah Yateem
FILE NUMBER(S):	20485 of 2007
CORAM:	Bly C - Tuor C - Thyer AC
KEY ISSUES:	Trees (Neighbours) :- Removal of fan palms adjoining boundary fence damage to the fence and injury from palm fronds
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	15/08/2007
EX TEMPORE JUDGMENT DATE:	15 August 2007
LEGAL REPRESENTATIVES:	APPLICANT Mrs McCallum, litigant in person RESPONDENT Mrs Yateem, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C, Tuor C and Thyer AC

15 August 2007

20485 of 2007 McCallum v Yateem

JUDGMENT

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) in relation to trees located on a property at 122 Ballantrae Drive, St Andrews (the site).

2 Mrs S Yateem owns the site. Two fan palms and two pine trees adjoin the common boundary between the site and 2 Kinross Place, St Andrews. A colourbond fence runs along this boundary.

3 The application has been made by Mrs G McCallum of 2 Kinross Place. She is seeking orders from the Court requiring the removal of the large fan palm, pruning of the fronds on the other palm and pruning of the pine trees.

4 Section 10 of the Act relevantly provides:

(1) The Court must not make an order under this Part unless it is satisfied:
(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b)…..
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b) is likely to cause injury to any person.

5 The evidence of Mrs McCallum is that the large fan palm is causing damage to the fence and that the spiky fronds are dangerous and require regular removal. She is concerned that as this and the other palm continue to grow they will cause further damage to the fence and be an on going nuisance.

6 In relation to the pine trees, Mrs McCallum states that the foliage spreads onto her property and should be regularly pruned. She considers that the removal of the palm and any foliage to be the responsibility of the owner of 122 Ballantrae Drive.

7 Mrs Yateem does not agree that the palm is causing damage to the fence. She is prepared to remove the fronds and prune the pine trees on a regular basis. She would not oppose both palms being removed provided Mrs McCallum meets the cost. She stated that she is a student and does not have the means to remove the palms.

8 We have examined the trees in the context of s 10(2) of the Act and conclude that while there is currently minimal damage to the fence between the properties it is likely that the palms trees will cause damage in the future as they continue to grow and the girth of the trunk expands. The fronds of the palms are spikey and will pose an ongoing risk to people unless regularly removed. In these circumstances both palms should be removed by the owner of the site within a period of 12 weeks.

9 In relation to the pine trees, while these may be a nuisance they are not causing, and are not likely to cause, damage to the fence or to people. Therefore no order of the Court is warranted in relation to the pines.

10 The orders of the Court are therefore:

1. The two fan palm trees located in the rear yard of 122 Ballantrae Drive, St Andrews adjacent to the property at 2 Kinross Place, St Andrews are to be removed or in the alternative cut off at ground level or a level no higher than the top of the fence. This work is to be done within 12 weeks of the date of this order at the cost of the owner of 122 Ballantrae Drive.

___________________

T A Bly
Commissioner of the Court