Smith v Clark

[2008] NSWLEC 1263

Land and Environment Court

of New South Wales

CITATION:

Smith v Clark [2008] NSWLEC 1263

PARTIES:

APPLICANT
Geoffrey and Jennifer Smith

RESPONDENT
Mrs N.L. Clark and Peter Clark

FILE NUMBER(S):

20274 of 2008

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) :- Removal of trees, risk of injury to persons,

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

26/06/2008

EX TEMPORE JUDGMENT DATE:

26 June 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr G. and Mrs J. Smith, litigant in person

RESPONDENT
Mrs N.L. Clark and Mr P. Clark, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

26 June 2008

20274 of 2008 Geoffrey and Jennifer Smith v Mrs N.L. Clark and Peter Clark

JUDGMENT

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

The consequence of the Court’s decsion in this application is the making of formal orders pursuant to s.9 of the Trees (Disputes Between Neighbours) Act 2006. These orders are not reproduced as part of this decision but a copy of the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Smith of 102 Murray Farm Road Beecroft concerning two trees located on a property owned by Mr Peter Clark and his mother, Mrs. N. Clark of 6 Marwood Drive Beecroft.

2 The trees are two Corymbia citriodora (Lemon-scented Gum) located at the rear of 6 Marwood Drive and which overhang the applicants’ property.

3 The applicants are seeking the removal of the trees as they fear that branches will continue to fall and cause injury to themselves and others. They are also concerned about splits in the bark of the larger of the two trees that they noticed after nearby trees were struck by lightning. They are also concerned with the asymmetrical and twisting habit of the smaller of the trees and of some of the branches of the other tree as they have grown away from other trees. They are keen gardeners and spend considerable time in their backyard. Mrs Smith received a small scratch on her neck when a small branchlet fell from one of the trees.

4 The respondents do not want the trees removed as they contend that they are healthy trees that also overhang their property. No branches of any significance have fallen onto their property.

5 The trees were inspected from both properties. From the respondents’ side they appear to be normal healthy individuals that show the typical characteristics of the species, including typical reaction wood on the branches. The splits were inspected and found to be ‘growth splits’ that are also consistent with normal healthy individuals of this and other smooth-barked gums. There was very little dead wood on the trees and what was there was mostly of small diameter (less than 20 mm).

6 The view from the applicants’ property showed no abnormalities or unusual amounts of dead wood. The trees were viewed in very windy conditions and nothing unusual was noted in their movement.

7 The applicants showed me an assortment of branchlets that had come from the trees over an undisclosed period of time. They were mostly short branchlets of small diameter (about 10-15 mm). Some branchlets had leaves, others were dead; the majority had come out of the trees in windy conditions. There was one piece of old dead wood of about 25-30 mm in diameter that had reportedly fallen into their garden on a calm day.

8 Under s.12 of the Act, the Court must consider a number of matters. The relevant clauses are:

(a) The trees are wholly located on the respondents’ property.
(e) The trees add to the scenic value of the land on which they are situated.
(f) The trees have some value to public amenity as, due to their height, they can be seen from the immediate area and form a visual connection with other trees. The canopy of trees is part of the landscape character of Beecroft.

9 Under s.10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

10 On viewing the trees and inspecting the evidence, I have come to the conclusion that, in their current condition, there is nothing that warrants any intervention. The elements that have fallen from the tree are very small and within normal and expected limits. There are no remaining sections of larger diameter deadwood that are likely to cause injury or harm. Overall, the risk of injury or harm to person from these trees is very low.

11 The order of the Court is that the application to remove the trees is refused.

___________________

J Fakes
Acting Commissioner of the Court