Roberts v Mangione

[2008] NSWLEC 1161

Land and Environment Court

of New South Wales

CITATION:	Roberts v Mangione [2008] NSWLEC 1161
PARTIES:	APPLICANTS W & D Roberts RESPONDENTS J & J Mangione
FILE NUMBER(S):	21278 of 2007
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Trees (Neighbours) :-
CASES CITED:	Yang v Scerri [2007] NSWLEC 592 Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513
DATES OF HEARING:	19 March 2008
EX TEMPORE JUDGMENT DATE:	19 March 2008
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENTS Mr B Wilson, solicitor Mills Oakley Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

19 March 2008

07/21278 Roberts v Mangione

JUDGMENT

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

1 COMMISSIONERS: Mr and Mrs Roberts own a property to the west of which is the property of Mr and Mrs Mangione. Along the boundary of the Roberts’ property, on the Mangione’s side, are a number of trees which are of concern to Mr and Mrs Roberts. Mr and Mrs Mangione had planted a number of Leighton Greens in recent times for the purpose of erecting a vegetated privacy screen between the two properties. In addition, there is a large Cypress at the front of the common fenced boundary and a Banksia at some distance further towards the rear.

2 Mr and Mrs Roberts seek the intervention of the Court with the trees on a number of bases. First, with respect to the Leighton Greens in the vicinity of a low retaining wall toward the rear of the Roberts’ property, we have had the benefit of expert evidence on behalf of the Roberts from Mr John Romanous, a consulting civil and structural engineer, and from Mr Ross Jackson, an arborist.

3 The combined effect of their evidence is that it is not likely that the Leighton Greens will cause any damage to the retaining wall in the next 12 months or indeed any reasonable period after that.

4 We are obliged, pursuant to section 10(2)(a) and (b) of the Act, to be satisfied that one of the four tests contained in those provisions is satisfied before the Court has jurisdiction to deal with those Leighton Greens. Those four tests are:

• have the trees caused;
• are they presently causing;
• are they likely in the near future to cause damage to the Roberts’ property; or
• are they a likely risk of injury to any person?

5 It is clear from inspection of the wall and the evidence that we have received that the trees have not caused and are not presently causing any damage to the wall nor are they a likely risk of injury to any person. On the evidence of Mr Romanous and Mr Jackson, we are satisfied, in addition, that they are not likely in the near future to cause damage. The period of time that we accept is appropriate is the rule of thumb (providing guidance to but not binding us) in the case of Yang v Scerri [2007] NSWLEC 592. We accept that not merely applying the 12 month rule of thumb from that case but also prudently looking considerably beyond that period, the final test, of the three tests in section 10(2)(a), is not satisfied. Therefore, with respect to those trees, we have no jurisdiction.

6 With respect to the Banksia and the remaining Leighton Greens, it is Mr Jackson’s evidence that the trees will not exceed the height of the roof line and therefore any possibility of them dropping detritus into Mr and Mrs Roberts’ box gutters in the next 12 months or so will also not arise. Even had that arisen, we would have been minded to apply, as matter of discretion, the tree dispute principle adopted in Barker v Kyriakides [2007] NSWLEC 292 that people who live in urban environments and have the environmental and aesthetic benefits of trees have a concomitant responsibility for maintenance of their property.

7 In this case, Mr Roberts, who is the builder of the premises in which he resides, says that, in addition, we should take account of the fact that he has a flat roofed building that poses additional problems.

8 Although we are satisfied that the jurisdiction is not triggered because none of the s 10(2)(a) or (b) tests are satisfied, considering the matters raised by the Court in another tree dispute principle in Black v Johnson (No 2) [2007] NSWLEC 513, we would also have taken into account the fact that the Banksia Tree was is in its location at the time that the building was built and designed and ought to have been a matter taken into account by Mr Roberts and his architect.

9 A similar position arises with respect to the Cypress tree at the front. We have no evidence that there is, at present time, any damage being occasioned to the Roberts’ property nor has there been any damage in the past. None is likely, on the evidence, in the near future. However, as a matter of discretion, even had we been so satisfied, the there is no evidence before us that the design of the building could not have been modified so that the porch (which should be the area primarily impacted by any dropping of detritus from this tree) could not have been designed so as to eliminate that – whether by having a pitched roof or smaller porch area or in some other fashion. There is also no risk of injury to any person.

10 Therefore as a consequence, we are satisfied that under none of the tests in s 10(2) of the Act are satisfied to bring any of the trees within the jurisdiction of the Court. Further, even if any were within the jurisdiction of the Court, we are satisfied that, as a matter of discretion, we would not make any order with respect to them. The application is, therefore, refused.

Tim Moore Judy Fakes
Commissioner of the Court Acting Commissioner of the Court