Rasmussen v Robinson

[2010] NSWLEC 1318

Land and Environment Court

of New South Wales

CITATION:

Rasmussen v Robinson [2010] NSWLEC 1318

PARTIES:

APPLICANT
M Rasmussen

RESPONDENT
S Robinson

FILE NUMBER(S):

20705 of 2010

CORAM:

Hewett AC - Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property, injury to persons; no evidence found; application dismissed

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

15/11/2010

 
DATE OF JUDGMENT: 

15 November 2010

EX TEMPORE JUDGMENT DATE:

15 November 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Rasmussen [litigant in person]

RESPONDENT
Mrs Robinson [agent]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hewett AC Fakes C

15 November 2010

20705 of 2010 Rasmussen v Robinson

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 Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Como against the owner of trees growing on an adjoining property.

2 The applicant is seeking the removal of a palm tree growing on the respondent’s land. He contends that the tree sways dangerously in windy weather. He is concerned that it will fall and damage his property or injure persons. He also contends that the tree sheds a lot of large sharp-edged leaves fronds that might cause injury to persons.

3 The applicant says the palm is an American species. The applicant sought advice from an arborist who he says advised him that the tree was top heavy and dangerous.

4 The respondent contends that the tree is a cabbage palm that is native to the Sutherland Shire and which is listed as Rare/Uncommon in the Sutherland Shire Indigenous Plant Guide.

5 We identified the tree as a Washington Palm also commonly known as Petticoat Palm, a species native to America. We note that Washington Palm bears some resemblance to the Australian native Cabbage Palm (Livistona spp)

6 The tree stands wholly on the respondents land and close to the dividing fence between the two properties. The tree leans slightly toward the applicant’s property such that the crown partly overhangs the applicant’s garden adjacent to the boundary fence.

7 On the applicant’s land, adjacent to the boundary fence there is a garden area of approximately 3 metres width. The garden contains dense planting of shrubs under which we observed a number of dead palm fronds. The applicant said that the palm fronds commonly fell into that part of his garden.

8 We inspected the tree from the respondent’s property and saw no evidence to indicate any instability in the tree. The respondent said that she did not prune the tree as it provided habitat for a possum.

9 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned 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 regard we do not see any evidence to suggest the tree is likely to fall. Similarly we do not see any evidence to suggest that fronds that might fall from time to time are likely to cause injury to any person.

11 Therefore as none of the tests under s 10(2) of the Act are met the Court has no jurisdiction to order any intervention with the tree.

12 The orders of the court are that the application is dismissed.

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