Rolls v Davies

[2007] NSWLEC 533

Land and Environment Court

of New South Wales

CITATION:	Rolls v Davies [2007] NSWLEC 533
PARTIES:	APPLICANTS Patrick & Patricia Rolls RESPONDENT Paul Davies
FILE NUMBER(S):	20385 of 2007
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	20 August 2007
EX TEMPORE JUDGMENT DATE:	20 August 2007
LEGAL REPRESENTATIVES:	APPLICANTS Mr Bruce Mather, agent RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

20 August 2007

07/20385 Patrick & Patricia Rolls v Paul Davies

JUDGMENT

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

1. COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act2006 (the Act).

2. The application is made by Mr and Mrs Rolls of 208 Walmer Avenue, Sanctuary Point with respect to 10 trees located on the adjacent property of the south – 206 Walmer Avenue, owned by Mr Davies.

3. All of the trees are Scribbly Gums (Eucalyptus haemostoma var. sclerophylla) (the trees).

4. All of the trees are located between 4 and 6 m from the boundary fence with Mr Rolls’ property.

5. We have carefully examined the various branch attachments of the overhanging branches that point in the direction of Mr Rolls’ property and we are unable to see anything in any of those attachments to indicate that any of those branches are likely to fail, let alone fail in the near future.

6. We are not satisfied that the tests in s 10(2) of the Act have been satisfied concerning any of these limbs and, therefore, we have no jurisdiction to consider making any orders with respect to them.

7. One of the 10 trees has failed in the recent past. As it has been cut up and removed and is no longer part of the application, we do not need to consider it further.

8. One tree is likely to fail in the near future. This is a tree which is leaning in a generally south-easterly direction. If it were to fail, it will fail entirely upon the property upon which is located. It would not be possible for this tree to cause damage to Mr Rolls’ property nor, given the present unoccupied nature of the property upon which it is located, is it likely to be a risk of injury to any person.

9. We also examined the trunks, at ground level, of each of these trees. With the exception of the sole tree noted above which is likely to fail entirely internally within the allotment, we are satisfied that there is, again, no basis upon which the Court’s jurisdiction s 10(2) of the Act could be invoked with respect to any of the other trees.

10. Having outlined these conclusions, there is absolutely no reason why some prudent tree management regime could not be agreed between Mr Rolls and Mr Davies, the owner of the allotment upon which the trees are located. However, that is not a matter for the Court pursuant to the Act.

11. As a consequence of the foregoing findings, the application will be dismissed.

Tim Moore

Commissioner of the Court

Acting Commissioner of the Court