Schultze v Casey
[2008] NSWLEC 1512
•16 December 2008
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION:
Schultze v Casey [2008] NSWLEC 1512
PARTIES:
APPLICANT
Marcia Schultze
RESPONDENT
Patricia and Michael Casey
FILE NUMBER(S):
20937 of 2008
CATCHWORDS:
Trees (Neighbours) :- Tree lopped to respondent's satisfaction prior to hearing. No damage or injury by tree in very bad storm indicates tree is not likely to cause damage or injury in near future.
LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006
CASES CITED:
Yang v Scerri [2007]NSWLEC 592
Nair v Edwards [2006] NSWSC 1310
CORAM:
Thyer AC
DATES OF HEARING:
16/12/2008
EX TEMPORE DATE:
16 December 2008
LEGAL REPRESENTATIVES
APPLICANT
Marcia Schultze, litigant in person
RESPONDENT
Patricia and Michael Casey, litigants in person
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESThyer AC
16 December 2008
20937 of 2008
Marcia Schultze v Patricia and Michael Casey
JUDGMENT
The extemporaneous decision was given on 16 December 2008. This written judgment includes relevant observations and background information.
ACTING COMMISSIONER: This application was made by Mrs Schultze, owner of 16 Weymouth Road, Lake Tabourie. The application concerns three Bangalay trees (Eucalyptus botryoides) situated in the backyard of 14 Weymouth Road, Lake Tabourie, the adjoining property to the west owned by Patricia and Michael Casey.
Mrs Schultze has lived at her property for the last 19 years. She says that when she first moved in, the trees were about three-quarters of the size they were when she made her application.
Patricia and Michael Casey have owned their property since 1989. They live in Sydney, and built a holiday home on the property about 10 years ago.
Mrs Schultze made her application to rectify or prevent property damage, and sought orders to prevent damage to property and to prevent injury to people in the vicinity of the trees. She claims that one of the trees dropped a branch that damaged her garage roof but she is not seeking compensation.
When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:
Has the tree caused damage to the applicant's property ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:
Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?Findings
The two trees subject of the original applicationAt the On-site Hearing, Mrs Schultze advised that the original application was for two trees located about 4 m from the common boundary, beside her garage. It was a branch from one of these trees that damaged her garage roof. I observed that both of these trees are now just trunks about 3 m tall. Mr Casey advised that he had these two trees lopped to their present height on 21 November 2008. Mrs Schultze advised that she is satisfied with the pruning of these trees. On that basis I dismiss her application with regard to these two trees.
The third tree added to the application
Mrs Schultze added a third tree to her application in a letter dated 19 November 2008, in accordance with the Directions set at the Call-over Hearing. That tree is located about 9 m from the common boundary, on higher ground in the Casey’s backyard.
The tree is an immature Bangalay about 20 m tall, in good condition with upright form. It has a light canopy, similar to others nearby. It does not have heavy end loading on any branches, and I did not see any large branch failure points. Mrs Schultze advised that the largest live or dead branch that had fallen from the tree was about 30 mm diameter. The tree has three trunks from near ground level, being about 0.4, 0.3 and 0.2 m in diameter. The smallest trunk which arises at about 0.3 m above ground has a small amount of included bark, but this trunk is not tall enough to reach the common boundary if it failed. The other two trunks do not appear to be weakened by the attachment of this smaller trunk. There are a few small diameter dead branches in the canopy but I do not think these would fall near or beyond the common boundary. There was no evidence of lifting of the root plate of the tree or of socketing of the trunk in the ground. Mrs Schultze’s application dated 16 September 2008 stated that there had been a recent storm with winds of up to 95 kph. At the hearing she advised that there was a further storm on 13 December 2008 with the strongest winds for 10 years. I note that storm occurred after five nearby trees had been heavily lopped on the Casey’s property. I also noted an uprooted tree in a nearby street, and large branches broken from old Bangalay trees in the nearby Beach Street Reserve.
On the basis of my observations and that the third tree survived the 13 December 2008 storm without damage, after the canopies of nearby protective trees had been removed, I do not find it likely that the tree will cause damage to the applicant’s property in the near future or injury to people. In Yang v Scerri [2007]NSWLEC 592, the Court set out, for future consideration, a rule of thumb as to what might constitute the near future for the purposes of s 10(2)(a) of the Act. In that case, twelve months was adopted as an appropriate period. I also note that twelve months is a more generous period of time than was discussed in Nair v Edwards [2006] NSWSC 1310 (a tree nuisance case in the Supreme Court) where Windeyer J held that an appropriate period of time for future damage might be as short as six months. I find no reason to depart from those timeframes in this case. Therefore, the third tree does not meet any of the tests in s 10(2)(a) and (b) of the Act.
Conclusion
None of the trees meet any of the tests in s 10(2)(a) and (b) of the Act at the time of the On-site Hearing, so I will dismiss the application.
Orders
The Orders of the Court are that the application is dismissed.
___________________
Peter Thyer
Acting Commissioner of the CourtThe formal orders are not included as part of this judgment but a copy may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at
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