Verma v Gander

[2007] NSWLEC 473

Land and Environment Court

of New South Wales

CITATION:	Verma v Gander [2007] NSWLEC 473
PARTIES:	APPLICANT Vivek Verma RESPONDENT Michael Gander
FILE NUMBER(S):	20474 of 2007
CORAM:	Brown C - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- application to remove tree - damage to adjoining property - compensation
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	23/07/07
EX TEMPORE JUDGMENT DATE:	23 July 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Thyer AC

23 July 2007

20474 of 2007 Vivek Verma v Michael Gander

JUDGMENT

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 by Mr Vivek Verma of 56 Adelaide Road, Padstow concerning a gum tree (Eucalyptus amplifolia) located close to the common boundary but on the adjoining property of Mr Michael Gander of 58 Adelaide Road, Padstow.

2 The extemporaneous decision was given on site on 23 July 2007 and the judgment reflects the findings and the background documentation provided as part of the proceedings.

3 Mr Verma’s application is to require the removal of the gum tree as:

• the tree overhangs his property and drops leaves on his house that has resulted in rusting of the ridge valleys and gutters,
• the tree drops leaves and branches and requires continual cleaning up,
• his wife and son have developed an allergy to the tree leaves,
• the tree roots will prevent the construction of a new driveway.

4 Mr Verma claims compensation of $3080 for roof repairs.

5 Mr Gander states that the removal of the tree is not necessary. In response to the application by Mr Verma, Mr Gander commissioned an arboricultural assessment of the tree by Mr Peter Richards of Tree & Landscape Consultants. The report stated that the tree was structurally sound but supporting a small amount of deadwood and recommended that council approval be sought to remove a small amount of growth to raise the crown. Previous pruning to remove branches overhanging Mr Verma’s property was noted. As we understand, the recommended pruning has been undertaken.

6 In finding that the tree should remain we have relied on the decision in Barker v Kyriakides [2007] NSWLEC 292 where it states that:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

7 We are satisfied that Mr Richard’s arboricultural assessment is sound and can be relied upon for the purposes of this application.

8 We are not prepared to give any weight to Mr Verma’s claim that his wife and son have developed an allergy to the tree leaves without any evidence to support the claim. The evidence was limited to Mr Verma’s oral statement that his doctor indicated that the tree leaves "may" have been the source of the allergy.

9 We are also not satisfied that the roots of the tree would impact on the ability to construct a new driveway to the garage on Mr Verma’s property. Currently, access to the garage is via two concrete wheel strips. While there are some areas where there has been minor lifting of the concrete strips, it is not significant considering the likely age of the concrete strips and the maturity of the tree in question.

10 The claim for compensation must be denied based on the findings in the previous paragraphs dealing with expectation that people living in a residential environment might need to clean the gutters and the surrounds of their houses on a regular basis notwithstanding the source of leaves may not be on their property. In any event, we note that Mr Verma has owned his property since November 2006 and that the damage depicted in the photographs of the roof are likely have occurred prior to his purchase of the property.

11 We accept Mr Richard’s arboricultural assessment and that Mr Gander has taken all reasonable steps to ensure that the tree has not caused or is likely to cause damage to the applicant’s property or is likely to cause injury to any person, as required by s 10(2).

12 For these reasons we have concluded that the application should be dismissed.

___________
G T Brown
Commissioner of the Court

___________
Peter Thyer
Acting Commissioner of the Court