Storos v Pantehis

[2009] NSWLEC 1325

Land and Environment Court

of New South Wales

CITATION:

Storos v Pantehis [2009] NSWLEC 1325

PARTIES:

APPLICANT
Clare Storos

RESONDENT
Kerri Pantehis

FILE NUMBER(S):

20451 of 2009

CORAM:

Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- Pruning of tree, damage to property and risk of injury to person(s)

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

15 September 2009

EX TEMPORE JUDGMENT DATE:

15 September 2009

LEGAL REPRESENTATIVES:

APPLICANT
Clare Storos (litigant in person)

RESONDENT
Kerri Pantehis (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

15 September 2009

20451 of 2009 Clare Storos v Kerri Pantehis

JUDGMENT

1 A Bangalay tree (the tree) is growing in the backyard of 112 Dean Street, South Strathfield which is owned by Mrs Pantehis. The trunk of the tree is located about 5 metres from the common boundary with the adjoining land to the east. A few live branches of about 50 mm diameter, at about 15 metre height, overhang the common boundary by about 2 metres. Mr Shephard, an arborist who has inspected and pruned the tree for Mrs Pantehis, attended the hearing.

2 Mrs Storos is the owner of the adjoining land to the east. She has made an application under the Trees (Disputes Between Neighbours) Act 2006 to rectify or prevent property damage and to prevent risk of injury.

3 She seeks orders for the overhanging limbs and branches to be lopped or removed in order to reduce the amount of debris that falls on to her property particularly during periods of high wind.

4 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 the tree before making an order regarding that tree. These tests are:

Has the tree caused damage to the applicant’s property on the land?
Is the tree now causing damage to the applicant’s property on the land?
Is the tree likely in the near future to cause damage to the applicant’s property on the land?
Is the tree likely to cause injury to any person?

5 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?

6 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

The tree

7 The tree is a Eucalyptus botryoides (Bangalay). It appears it be in fair to good health and does not appear to have any indication of structural weakness at branch attachments. The tree is visible from the street and surrounding properties and provides shade and landscape benefit to Mrs Pantehis’ backyard. The tree holds two magpie nests, and Mrs Pantehis says the tree is also used by kingfishers, lorikeets and possums.

8 I understand that the tree is protected by the Strathfield City Council Tree Preservation Order.

9 Mr Shepherd pruned deadwood from the whole of the tree in May 2009, and pruned live branches in September 2009, in accordance with Strathfield City Council Tree permit No. 308000.

Findings

10 On Mrs Storos’ own advice, the tree has not caused damage to her property in the past and is not now causing damage to her property.

11 Based on my observation of the tree at the hearing; the fact that the tree has been pruned recently to reduce risk; that Mr Shephard has no expectation of damage from the tree to Mr Storos’ property in the next 12 months; that the tree has caused no damage in the past; and that Mrs Pantehis says that she will have Mr Shephard inspect and prune the tree from time to time at her cost, I find that the tree is not likely to cause damage in the near future to Mrs Storos’ property. Therefore the tree does not meet any of the tests in s 10(2)(a) of the Act.

12 With regard to risk of injury, on a similar basis to my finding regarding damage, I do not find that the tree is likely to cause injury. Thus the tree does not meet the test in s 10(2)(b) of the Act.

13 I note Mrs Storos’ conditions of impaired vision and other age related frailties, and her claim that twigs, nuts and bark on her pavement are a risk of injury to her. I find in this regard however, that the debris that falls onto her yard is such that can be managed by reasonable property maintenance. Also, in relation to her claim that the debris is particularly a problem after high winds, I find that further pruning of the tree is unlikely to significantly reduce the debris after high winds, and that some debris may come from the large Blue gum growing at 114 Dean Street, South Strathfield.

14 I cannot make orders for intervention with the tree because the tree does not meet any of the tests in s 10(2) of the Act.

Orders

15 The orders of the Court are:

1. The application is dismissed.

___________________

Peter Thyer
Commissioner of the Court
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