Schutz v Kotsis - [2010] NSWLEC 1332

Land and Environment Court

of New South Wales

CITATION: Schutz v Kotsis [2010] NSWLEC 1332

PARTIES:
APPLICANT
Mr V Schutz
RESPONDENT
Ms F Kotsis

FILE NUMBER(S): 20657 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property; injuryto persons; rural residential zone;

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006
Hornsby Shire Local Environmental Plan 1994

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 29/11/2010

EX TEMPORE JUDGMENT DATE: 29 November 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr V Schutz [litigant in person]
RESPONDENT
Mr J Dimitrpoulos [agent]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

29 November 2010

20657 of 2010 Schutz v Kotsis

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

1 COMMISSIONER: 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 Arcadia against the owner of tree growing on an adjoining property.

2 The applicant is seeking the removal of dead trees and the pruning of tops and branches of live trees. He is also seeking the removal of soil from live trees in order to prevent ‘collar rot’. Orders are also sought for the owner to remove any future trees that are dead or dying or branches that overhang the applicant’s property.

3 The applicant is seeking these orders on the basis that the dead tops of 2 trees have fallen into his property in the past and that future failures of trees, or parts of them, may cause injury to anyone nearby or may cause damage to the dividing fence.

4 The trees in question are a row of 18 Pinus radiata growing on the south-eastern portion of the respondent’s property along the diving fence between the parties’ properties. There are a number of other trees along this fenceline that are not part of this application.

5 The properties are on land zoned Rural BA (Small Holdings – Agricultural Landscapes) under the Hornsby Shire Local Environmental Plan 1994. I am satisfied that Part 2 of the Act applies to this land as it has the substantial character of “rural-residential” as considered in s 4(1)(a) of the Act.

6 On the respondent’s property to the west of the trees a dam and garden beds have been constructed. The dam was constructed in about 2006. According to the applicant this has resulted in the build up of soil around the base of the trees as well as an increase in moisture levels. He contends that the build up of soil will result in ‘collar rot’ and therefore hasten the decline of the trees.

7 The land on the applicant’s property adjacent to the trees is a mown grass paddock occasionally used as a play area. The area is some distance from the house. The applicant also passes beneath the trees when he mows the grass. Apart from the fence,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Schutz v Kotsis

Details

AGLC: Schutz v Kotsis [2010] NSWLEC 1332
Case: [2010] NSWLEC 1332
Decision Date: 29 November 2010

CaseChat Overview and Summary

In the case of Schutz v Kotsis, the applicant, Mr V Schutz, sought an order under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 for the removal of dead trees and the pruning of tops and branches of live trees located on the adjoining property of the respondent, Ms F Kotsis. The application was based on concerns that the trees, specifically a row of Pinus radiata along the dividing fence, could cause damage to property or injury to persons. The court was also asked to order the removal of soil from the live trees to prevent ‘collar rot’ and to mandate the removal of any future trees or branches that posed a risk.

The legal issues addressed by the court were whether the trees in question caused, were causing, or were likely to cause damage to the applicant’s property or were likely to cause injury to any person, thereby justifying the court's intervention. The court considered the condition of each tree, the risk they posed, and the proximity of the trees to the applicant’s property. It was also necessary to determine whether the risk was imminent or within the 'near future' as defined in Yang v Scerri.

The court found that only one tree, identified as T3, posed a risk of injury to anyone on the respondent’s property. This tree was in an over-mature state, with signs of decay and degradation. The court concluded that while the applicant's concerns about the other trees were valid at the time of the application, the removal of several trees and the overall low risk posed by the remaining trees meant that the court should not order the removal of the entire row of trees. The court also dismissed the application for pruning and the removal of soil, as there was insufficient evidence to support these claims.

The final orders of the court were that the application to remove the trees was upheld in part, with the respondent required to engage an arborist to remove Tree 3. The court mandated that the work be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry and be completed within 90 days of the date of the orders. The orders for pruning and soil removal were dismissed.

Orders