Peterson v Azzo

[2007] NSWLEC 685

Land and Environment Court

of New South Wales

CITATION:	Peterson v Azzo [2007] NSWLEC 685
PARTIES:	APPLICANT Barbara Peterson RESPONDENT Michelle and Daniel Azzo
FILE NUMBER(S):	20696 of 2007
CORAM:	Brown C - Fakes AC
KEY ISSUES:	Trees (Neighbours) :- safety
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	17/10/07
EX TEMPORE JUDGMENT DATE:	17 October 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Fakes AC

17 October 2007

20696 of 2007 Barbara Peterson v Michelle and Daniel Azzo

JUDGMENT

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Ms Barbara Peterson of 6 Dandarbong Avenue Dundas concerning a Sydney Blue Gum (Eucalyptus saligna) (the tree) some 20 m in height and located close to the common boundary but within with 9 Carver Place Dundas owned by Mr Daniel and Ms Michelle Azzo.

2 Mr Robert Sutton, the Tree Management Supervisor with Parramatta City Council also attended the site.

3 The extemporaneous decision was given on site on 17 October 2007 and the judgment reflects the findings given at this time and the background documentation provided as part of the proceedings.

4 Ms Peterson’s application is to require the removal of the tree as:

• falling limbs from the tree have caused damage to fencing and plants,
• leaves from the tree has filled the gutters of her dwelling, and
• the tree is unsafe as it has bracket fungi and could fall on her dwelling.
  

5 No specific details of any compensation were provided beyond a cost of $30 per hour to “clean the mess”.

6 Mr Daniel and Ms Michelle Azzo were content to rely on any findings thought appropriate by the Court.

7 Clause 10(2) of the Trees (Disputes Between Neighbours) Act 2006 provides that:

( 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.

8 In our view, and following a ground inspection of the tree we accept that the tree is in generally good condition and contributes to the amenity of the area. It is located at a reasonable distance from the dwellings of Ms Peterson and Mr and Ms Azzo in an area largely undisturbed by structures or other impediments that would likely effect it’s long term health. There were no obvious signs of any structural defects. A fruiting body of a decay fungus (Phellinus sp) was however observed in a secondary leader located near the boundary with Ms Peterson’s property. In our view, the existence of this fruiting body in one limb is not a valid reason for the tree to be removed when the issue can be resolved through the removal of the infected limb. We are satisfied that such action would satisfactorily address the requirements of cl 10(2). The removal of the limb should be undertaken within a period of 90 days from the date of the Orders.

9 The issue of general maintenance from leaves and bark from the tree is addressed in the decision in Barker v Kyriakides [2007] NSWLEC 292 where it states that:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

10 Based on the findings in Barker v Kyriakides no compensation is payable.

11 The Orders of the Court are:

A) The application is upheld, in part.
B) The respondent is to undertake the following works:
1. The secondary leader containing the fruiting body and located near the common boundary with 9 Carver Place Dundas is to be removed at the branch collar and in accordance with Australian Standard AS4373 – 2007 – Pruning of Amenity Trees.
2. The work required by Order 1 is to be undertaken within a period of 90 days from the date of this Order.
__________
G T Brown
Commissioner of the Court

___________
Judy Fakes
Acting Commissioner of the Court