Mitchell v Dalton

[2009] NSWLEC 1248

Land and Environment Court

of New South Wales

CITATION:

Mitchell v Dalton [2009] NSWLEC 1248

PARTIES:

APPLICANT
Mitchell, Joseph

RESPONDENT
Dalton, Jacinta

FILE NUMBER(S):

20307 of 2009

CORAM:

Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of trees; damage to property; damage to persons.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

15 July 2009

EX TEMPORE JUDGMENT DATE:

15 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Mithcell (Litigant in Person)

RESPONDENT
Ms J Dalton

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

15 July 2009

20307 of 2009 Joseph Mitchell v Jacinta Dalton

JUDGMENT

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

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Joseph Mitchell of 137 Lindsay Street Hamilton against the owner of 2 trees located at 8 Blackall Street Hamilton. The owner of that property is Ms Jacinta Dalton.

2 The applicant is seeking the removal of the 2 trees as he contends that they pose a threat to his property and his person. He is also seeking compensation for an unspecified amount for future costs associated with the removal of leaf litter.

3 It is noted that the application refers to 3 trees. It was confirmed on site that there are only 2 trees; the confusion arose as one of the trees has 2 co-dominant stems and therefore the impression from Mr Mitchell’s property is that there are 3 stems and therefore 3 trees.

4 Specifically, Mr Mitchell is concerned about the possibility of whole tree failure and thus the damage and injury that could arise from such a failure. He is also concerned about the volume of leaf litter and bark that requires removing from his roof and gutters.

5 The trees are two Eucalyptus globulus (Tasmanian Blue Gum) planted in 1980. They are healthy and have small diameter dead twigs throughout the canopy. The attachment of branches and stems appears sound. There was no evidence of heaving at the base of the trees that may indicate instability of the rootplate. The trees are approximately 10 m away from the applicant’s property with a small percentage of the canopy overhanging one part of his roof by about 3 m.

6 Ms Dalton engaged Ian McKenzie, Consulting Arborist from Arbor Views to inspect and report on the trees. Mr McKenzie’s report identified small elements of deadwood and a small fruiting body of a decay-causing fungus at the base of a branch that overhangs an adjoining property (not the applicant’s). The report recommends regular inspections, further investigation of the area around the fruiting body and regular removal of dead wood. The report does not identify any aspects of the tree that are likely to cause damage to property or injury to people in the near future.

7 The on-site inspection confirmed Mr McKenzie’s observations and conclusions. Mr McKenzie was present at the hearing and had nothing to add to his report.

8 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

9 The Court must also consider a number of matters under section 12 of the Act. The relevant clauses in this case are:

(a) The trees are wholly located on the respondent’s property.
(d) The trees contribute to biodiversity. Ms Sandra Penman, Flying Fox Co-ordinator with the Native Animal Trust gave evidence that she had rescued an injured flying fox from one of the trees. She mentioned the importance of such flowering trees for local wildlife,
(e) The trees contribute to the scenic value of the land on which they are located and according to the applicant was one of the reasons she purchased the property in 1987.
(f) The trees are visible within the local area and are some of the few larger canopy trees in the vicinity.
(h)&(i) (ii) The respondent has engaged a consulting arborist and has agreed to follow the recommendations made in his report. There was evidence of recent pruning having been carried out in the trees.
(j) The trees were well-established when Mr Mitchell purchased his property almost ten years ago. A real estate advertisement from 2000 showing the applicant’s property was tendered by the Ms Dalton. The trees are clearly visible behind the applicant’s property and they are of a substantial size.

10 Returning to section 10(2) of the Act and this application. In this matter, the trees have not caused, are not causing and are unlikely, in the near future, to cause damage to property.

11 Regarding the applicant’s concerns about leaf litter, the Land and Environment Court has published several Tree Disputes Principles. The relevant one in this matter is published in Barker v Kyriakides [2007] NSWLEC 292. The essence of this principle is that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This applies in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide.

12 Similarly, the trees have not caused injury to people and are unlikely to do so in the near future despite the presence of the fungal fruiting body.

13 Compensation can only be awarded for actual damage and therefore the claim for compensation for future unknown costs is refused.

14 Finally, as none of the four tests under section 10(2) of the Act are satisfied, the orders of the Court are that the application is dismissed.

___________________

J Fakes
Acting Commissioner of the Court