Rowsell v Ware

[2007] NSWLEC 796

Land and Environment Court

of New South Wales

CITATION:

Rowsell -v- Ware [2007] NSWLEC 796
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Rowsell, Kylie & Michael

RESPONDENT
Ware, Timothy & Belinda

FILE NUMBER(S):

20919 of 2007

CORAM:

Murrell C - Fakes AC

KEY ISSUES:

Trees (Neighbours) :- Application to remove tree

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker & Kyriakides [2007] NSW LEC 292

DATES OF HEARING:

23/11/2007

 
DATE OF JUDGMENT: 

27 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Roswell, Kylie & Michael

RESPONDENT
Ware, Timothy & Belinda

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C and
Fakes AC

27 November 2007

20919 of 2007 Kylie and Michael Rowsell -v- Timothy and Belinda Ware

JUDGMENT

1 The proceedings today are for an application made under section 6 of the Trees (Disputes between Neighbours) Act 2006. The subject tree is an Ironbark Eucalyptus.

2 The applicant, Mr and Mrs Rowsell, is seeking the removal of the subject tree located at the rear of the their property and on the adjoining land to the rear at No 88 Angle Road, Leumeah. The applicant provided a survey that shows 0.500 of the tree trunk on the property at the rear on the respondent’s land and 0.300 on the applicant’s land. As such the tree is jointly owned between the neighbours.

3 The reason the applicant are seeking removal of the tree is because they are concerned about the safety of twigs falling on their children and their dogs not being contained within their rear yard because of the condition of the rear fence. As such the applicants are seeking the tree to be removed to allow a secure fence to be erected between the two properties on the rear boundary.

4 The applicant is also concerned about the debris and leaf litter that falls from the tree in particular in terms of the maintenance of their swimming pool.

5 The applicant advised the Court that the sewer at the rear of their property was repaired last year and that it had been damaged by tree roots. In the applicant’s rear yard a metal shed on a concrete slab was relocated when the sewer pipe was repaired from the north-western corner to directly behind the subject tree.

6 We note that the metal/colorbond fence has been erected generally within the respondent’s property, although we note the boundary is approximately half way through the subject tree.

7 The respondent, Mr and Mrs Ware, in these proceedings indicated that one of the reasons they purchased their dwelling was because of the three Eucalyptus trees in the rear yard of their property and that it provided shade and added to the amenity to the rear yard. .

8 The respondent in the proceedings pointed out that the fence had been erected by the previous owners of 19 Watt Street and that it had not been constructed in accordance with accepted fencing standards and that he is happy to also see a new fence between the properties but he does not consider it necessary to remove the tree and that the fence could be built on the boundary on either side of the tree.

9 The respondent states that the tree was there before any of the houses in the area and it provides for shade to his dwelling house from the western sun and that the tree adds to the character of the area and attracts birds.

10 Under section 10 of the Tree Act the Court must be satisfied that the tree has caused, is causing or is likely to cause injury to a person or property. For the latter the time period is generally regarded as 12 months.

11 We have carried out an inspection of the tree today and in our assessment while its canopy may be currently reduced, and this may be due to some of the roots previously being severed, at the same time there is evidence of new growth on the tree and we are of the opinion that it is healthy and structurally sound and does not present a threat to property or persons. In our assessment we do not consider that the tree has caused is causing or is likely to cause injury to persons or property in the near future. As such the tests under s10 are not satisfied and removal of the tree is therefore not justified.

12 Apart from not being satisfied in terms of section 10 above the Court in determining an application under the Tree Act must also consider the matters in section 12 of the Act including:

• The location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,
• Any contribution of the tree to the local eco system and biodiversity
• Any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned
• The intrinsic value of the tree to public amenity.

13 Furthermore, in terms of the matters required to be taken into consideration under section 12 the tree in our assessment makes a contribution to the local ecosystem and biodiversity and it does have intrinsic value in terms of public amenity. This tree, together with the two trees within the respondent’s property, are visible from the surrounding streets and add character to the residential area. We are of the opinion that the tree would in all probability be a remnant tree and indigenous to the area.

14 On the issue of the tree causing a nuisance in terms of leaves and twigs falling in the back yard of both properties this is the responsibility of the owners of the respective properties. That is the applicant’s and the respondent’s given the location of the tree on the boundary. A recent judgment in this Court Barker and Kyriakides [2007] NSW LEC 292 contains a principle relevant to these proceedings. This judgment states:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and ground 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 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 of an urban tree.

15 While the jurisdiction of fences comes under a separate act, that is the Dividing Fences Act, by way of comment only to assist the parties in their future discussions about the rear boundary common fence, we are of the opinion that a fence could be erected on the boundary without removing the tree. The fence could be erected with the tree forming part of the fence. That is, the fence could be built on the boundary to either side of the trunk of the tree. This method of fence construction where a tree trunk straddles two boundaries is not uncommon.

16 On the basis of the reasons given above the formal Order of the Court is that the application to remove the tree is dismissed.

_________________

J Murrell
Commissioner of the Court
cc

14/12/2007 - Correction of Family Name - Paragraph(s) Citation