Sier v Owners Corporation Sp 35395

[2008] NSWLEC 1442

Land and Environment Court

of New South Wales

CITATION:	Sier v Owners Corporation SP 35395 [2008] NSWLEC 1442
PARTIES:	APPLICANT Geoffery Sier RESPONDENT Owners Corporation SP 35395
FILE NUMBER(S):	20514 of 2008
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Trees (Neighbours) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Yang v Scerri [2007] NSWLEC 592 Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	2 October 2008
EX TEMPORE JUDGMENT DATE:	2 October 2008
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr M Carter, agent

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

2 October 2008

20514 of 2008 Geoffery Sier v Owners Corporation SP 35395

JUDGMENT

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

1 COMMISSIONERS : Mr Sier has made an application to the Court for removal of 16 trees located on the adjacent property to the south of his home at 206 Granite Street at Port Macquarie. The 16 trees are listed below (from the front of the adjacent block to the rear):
1. Leptospermum sp (Tea Tree)
2. Callistemon sp (Bottlebrush)
3. Gardenia sp (Gardenia)
4. Callistemon sp (Bottlebrush)
5. Lauris nobilis (Bay Tree)
6. Leptospermum sp (Tea Tree)
7. Cinnamomum camphora (Camphor Laurel)
8. Callistemon sp (Bottlebrush)
9. Leptospermum sp (Tea Tree) – touching the fence
10. Leptospermum sp (Tea Tree)
11. Callistemon sp (Bottlebrush)
12. Leptospermum sp (Tea Tree)
13. Tristaniopsis laurina (Water Gum)
14. Acmena sp (Lillypilly)
15. Acmena sp (Lillypilly)
16. Hakea salicifolia (Willow-leafed Hakea)

2 The property to the south is a strata plan with the trees being located on the common property. Mr Carter, agent for the owners corporation of the strata plan, did not raise any objection to Mr Sier's application being amended to reflect the correct ownership of the trees on the common property.

3 We have carefully examined each of the 16 trees from both sides of the fence.

4 Mr Sier has also explained to us his concerns about the trees and the fact that a variety of detritus comprising leaves, twigs, fruits and the like from the trees in his opinion have been deposited on his property including in his gutters necessitating the installation of a gutter guarding product in order to avoid his gutters being clogged.

5 The detritus which we observed, during the course of the inspection, was, on his evidence, detritus which had not been cleaned up for a period of some six months or so because of Mr Sier’s physical inability to do so during that period.

6 We have carefully observed that detritus and noted that a significant element of the material was leaves from eucalyptus trees and that none of the 16 trees which are the subject of the application comprise a tree of that species.

7 We are therefore satisfied that at least a significant portion of the detritus on Mr Sier’s property does not come from any of the trees that are the subject of this application.

8 There are 16 trees as earlier noted. We are obliged to assess each of these 16 trees against the tests in section 10(2) of the Act. If any of the trees fail one of those four tests, then, but only then, do we have jurisdiction to consider the discretionary merits of Mr Sier's application concerning that tree or those trees.

9 If we take Mr Sier’s case at the highest, all of the trees may contribute to the detritus which is deposited on his property. One of the trees, a tea tree which is the ninth tree from the front of the adjacent property, has part of its main trunk rubbing against the common boundary fence between the properties. To varying extents most (but not all) of the trees have some foliage which overhangs the common boundary. None of the foliage which currently overhangs the common boundary touches any of the structures erected on Mr Sier’s property.

10 With respect to each of the trees, we are not satisfied (and there is no evidence) that they are likely to cause in the near future any damage to Mr Sier’s property or they are likely to be a risk of injury to any person.

11 With respect to the ninth tree, whilst prudent tree management on behalf of the owners corporation of the strata plan would require the removal of the stem which is rubbing against the fence, we cannot be satisfied the fence will be damaged within the time period that is reasonable to consider as being the near future. We are assisted by (but not bound by) the decision in Yang v Scerri [2007] NSWLEC 592 which proposed a rule of thumb of some 12 months as being appropriate time for the consideration of such likelihood. There is no basis to conclude that that stem would cause damage to the fence in that time so as to warrant an order for removal of it.

12 With respect to the detritus which is located on and continues to fall on Mr Sier's property, to the extent that it comes from the trees that are the subject of the application rather than eucalyptus trees, we are satisfied that may have caused damage in the past, at least to some extent, from some of those trees (by a build-up of leaves in the gutters) and causing at least some of the the damage in the south-eastern corner of his fascia and eaves to which he has drawn our attention. Taking his case at the highest, the Court’s jurisdiction is enlivened.

13 However, we must therefore move on to consider, as a matter of discretion, whether that warrants any order for interference with or removal of any tree. In the case of Barker v Kyriakides [2007] NSWLEC 292, the Court considered, as a question of discretion, whether or not, in the ordinary course of events, the Court should order interference with or removal of trees because of the deposition of leaves, small twigs, fruit and the like on a person's property. The Court concluded that, in the ordinary course of events, persons who enjoy the environmental and aesthetic benefit of trees, in urban areas, should accept that there is a necessary and reasonable maintenance requirement to undertake the collection and removal of detritus as part of having the benefits of those trees.

14 We see no reason in this case to depart from that tree principle discussed in Barker v Kyriakides as a consequence of the deposition of material on Mr Sier’s land and we decline to order any intervention with any of the trees on that basis.

15 The consequence of all the foregoing is that the application is dismissed.

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