Sumner v Graham

[2008] NSWLEC 1391

Land and Environment Court

of New South Wales

CITATION:

Sumner v Graham [2008] NSWLEC 1391

PARTIES:

APPLICANT
Shirley Sumner

RESPONDENT
Robert and Carmel Graham

FILE NUMBER(S):

20410 of 2008

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) :- Removal of the tree and damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

29/09/2008

EX TEMPORE JUDGMENT DATE:

29 September 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms S. Sumner, litigant in person

RESPONDENT
Mr R. and Mrs C. Graham, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

29 September 2008

20410 of 2008 Shirley Sumner v Robert and Carmel Graham

JUDGMENT

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

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Ms Shirley Sumner of 19 Tracey Avenue Carlingford regarding a tree located at the rear of the adjoining property owned by Mr and Mrs Graham of 21 Tracey Avenue Carlingford.

2 The tree is a small healthy Camphor Laurel (Cinnamomum camphora) of approximately 4 m high located within about 500 mm of the boundary fence between the applicant and the respondents. The tree partially overhangs and contacts the rear corner of Ms Sumner’s house in which the laundry and a toilet are located. The tree has a minor bark inclusion between its two leaders.

3 The applicant is seeking the removal of the tree as she contends that leaves from the tree block the gutter, that these and the overhang have caused mould to develop in the laundry and toilet, that paint is being removed from the eaves and the gutter and that the dead leaves in the gutter may prove a fire risk. Ms Sumner also stated that she was concerned that the roots of the tree may block the nearby sewer.

4 The respondents do not want the tree removed but have sought quotes to have it pruned.

5 Under section 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 applicant’s property. In Yang v Scerri [2007] NSWLEC 592, the ‘near future’ generally means within twelve months or so of the date of the Court’s determination of the application.

6 The tree was viewed from both properties and the walls and ceiling of the laundry and toilet were inspected. Most of the mould had been cleaned off but in my opinion, what remained was not abnormal in rooms where there is moisture present. The guttering was a bonded material and not painted and there was no apparent damage to the coating. The eaves in other parts of the property away from the tree appeared to be in the same condition as those near the tree with some evidence of paint loss. The likelihood of a fire starting from burning floating embers igniting the leaves in the gutter is remote. The sewer was functioning normally.

7 With respect to the leaves in the gutter, the Land and Environment Court has published a Tree Dispute Principle, following a judgement made in Barker v Kyriakides [2007] NSWLEC 292, that deals with minor maintenance in urban areas caused by leaves, twigs and the like falling from trees. In essence, for people who live in treed urban environments, and who achieve a certain range of benefits from trees, some degree of exterior house and grounds maintenance will be required. The dropping of leaves, fruit, seeds and other small elements by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with the tree. That principle applies in this matter.

8 Under s.12 of the Act, the Court must consider a number of other matters. The relevant clauses in this case are as follows:

(a) The tree is wholly located on the respondents’ property.
(e) The tree makes some contribution to the scenic value of the land on which it is located as it is the only tree in that section of the garden.
(h)(I) The mould on the laundry and the toilet ceiling and walls may be in part caused by moisture associated with the use of the rooms although the applicant states that this has only been a problem since the tree has grown.
(h)(ii) Neither the applicant or the respondent have undertaken any pruning works. From information provided by the applicant, but not confirmed by the Court, it could be inferred that the tree is probably exempt from the Baulkham Hills Shire Council Tree Preservation Order due it being a small Camphor Laurel and therefore permission to prune the tree would probably not be required.

9 Based on the evidence, it is clear that this tree has not caused, is not causing, and is unlikely to the near future to cause, damage to the applicant’s property. The orders of the Court are that the application is refused.

___________________

J Fakes
Acting Commissioner of the Court