Morris v Brown

[2010] NSWLEC 1067

Land and Environment Court

of New South Wales

CITATION:	Morris v Brown [2010] NSWLEC 1067
PARTIES:	APPLICANT L. Morris RESPONDENT D. Brown
FILE NUMBER(S):	20009 of 2010
CORAM:	Fakes C
KEY ISSUES:	TREES (NEIGHBOURS) :- Future damage to property
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
DATES OF HEARING:	25/03/10
DATE OF JUDGMENT:	25 March 2010
EX TEMPORE JUDGMENT DATE:	25 March 2010
LEGAL REPRESENTATIVES:	L. Morris (litigant in person) D. Brown (Litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

25 March 2010

20009 of 2010 Morris v Brown

JUDGMENT

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

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Morris of 54 Elsiemer Street Long Jetty, against the owner of a tree growing at 43 Pacific Street Long Jetty. The owner of that property is Mr Brown.

2 Mr Morris is seeking the removal of the tree as he contends that could cause damage to his property, especially damage to his sewer pipes and to the foundations of his house.

3 Mr Morris’ concerns appear to arise from the unearthing of roots from the tree during various works carried out in his garden. These works include the levelling and excavation of a small area at the rear of his house for the laying of a small concrete slab on which a water tank was to be located. Similarly, roots were uncovered in a garden area at the back of the house and two roots of about 30mm in diameter were found near the floor slab of the house. Where these roots were severed, Mr Morris later found suckers or seedlings from the tree.

4 The tree was identified by the Royal Botanic Gardens (RBG) Sydney as a Populus x canadensis (Grey Poplar). In a letter from the RBG, the botanist states that this is a fast growing hybrid resulting from a cross between P. deltoides (Cottonwood) and P. nigra. It appears that this identification caused the applicant further concerns.

5 Mr Morris is also concerned that the tree blocks sunlight into his garden and that debris falls from the tree for more than nine months of the year. With respect to light, the Trees (Disputes Between Neighbours) Act 2006 does not apply to light see Robson v Leischke [2008] NSWLEC 152 at 135.

6 The tree was inspected from both properties. It is located at the rear of Mr Brown’s property within about 2 m of the dividing fence with Mr Morris. It was given as a gift to Mr Brown from the previous owner of his property who thought it was a seedling of a Norfolk Island Hibiscus. The tree is about 15 years old and about 15m tall. It is in good health with no obvious structural defects. There is very little dead wood throughout the tree.

7 On Mr Morris’ property I was shown the roots that were uncovered during the excavation works mentioned above. However, Mr Morris was unable to show me any damage that had occurred to his property. He also stated that there were intermittent problems with his sewer and that a plumber had suggested there might be a partial blockage. Mr Morris fears this may be from tree roots however, at this stage, no significant problem has arisen and there has been no need for the sewer to be cleared and thus no roots have been found.

8 With respect to the concerns raised by the applicant, the Trees (Disputes Between Neighbours) Act 2006 is restricted to actual or potential actual damage being caused to property. In Robson v Leischke [2008] NSWLEC 152 at 56, Preston CJ states that mere encroachment is not damage, in 169 that damage must be proved and in 171 annoyance or discomfort to an applicant by such things as leaves and flowers blown onto their property from their neighbour’s land is not “damage to property on land’ within s7 of this Act unless they also cause damage to property on the neighbour’s land.

9 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 is likely to cause injury to any person.

10 In this matter, there is no evidence to suggest that the tree has caused, or is causing, damage to the applicant’s property. Similarly, there is no indication that the tree is likely to cause damage in the near future. 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. The tree is also unlikely to cause injury to any person.

11 Therefore as none of the tests under s 10(2) are met, the Court has no jurisdiction to make an Order for any intervention with the tree and therefore the application to remove the tree is dismissed.

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