Winstanley-Channells v Deusberry

[2007] NSWLEC 559

Land and Environment Court

of New South Wales

CITATION:	Winstanley-Channells v Deusberry [2007] NSWLEC 559 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Jean Winstanley-Channells RESPONDENT Margaret Deusberry
FILE NUMBER(S):	20317 of 2007
CORAM:	Moore C
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	28 August 2007
EX TEMPORE JUDGMENT DATE:	28 August 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr Duesberry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

28 August 2007

07/20317 Jean Winstanley-Channells v Margaret Deusberry

JUDGMENT

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

1 COMMISSIONER: This an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Ms Channells concerning a number of trees, of various species, located on a property to the south and down-slope of her property. This property, 25 Howard Street, Coffs Harbour, is owned by Ms Deusberry.

2 I have attended the site and had the opportunity of inspecting the trees from both sides of the fence.

3 I have also had the opportunity of reading a report prepared by Mr Nigel Smith, an arborist, which report has been provided by Ms Deusberry in response to Ms Channells’ application.

4 There are three matters that require to be dealt with as part of my determination of Ms Channells’ application.

5 The first relates to the all the trees located Deusberry property which are the subject of the application. In addition, the Jacaranda and the Variegated Fig each also requires determination of separate matters specific to that tree.

6 All of the trees, including the two last named trees, are reported by Mr Smith to be in good health. In addition, my inspection of them shows no likelihood of structural failure of any of those trees.

7 Indeed, given the topography of the land, in the unlikely event any one of those trees were to fail, the probability is that it would fail in a southerly direction onto the Deusberry property rather than on to Ms Channells’ property.

8 Ms Channells raises the question of possible lightning striking the trees - there having been two lightning strikes, on her evidence, in the vicinity in the past.

9 I have no evidence as to the probability of or frequency of lightning strikes in the vicinity and I am not able to be satisfied that it is likely, in the near future, that there would be a lightning strike on any of the trees. That matter fails the test under s 10(2)(a) of the Act

10 There therefore is no general basis of likely damage, in the near future, to Ms Channells’ property nor likelihood of risk of injury - being the relevant tests under s 10(2) of the Act that could cause me to order any intervention with respect to any of the trees.

11 Ms Channells raised separate issues, in addition to the general issues raised by her, concerning the Jacaranda and the Variegated Fig.

12 I turn to consider the question of the Jacaranda.

13 Ms Channells raises concerns about the Jacaranda dropping leaves, small fronds and the like into her property. This causes her husband to have to climb onto the roof and clean out the gutters on a regular basis.

14 In Barker v Kyriakides [2007] NSWLEC 292, the Court published a Trees Dispute Principle which essentially states that, for persons living in urban areas to have the environmental and aesthetic benefits of trees in the vicinity, they are obliged to accept the necessity to carry out usual maintenance to their property to deal with the minor detritus that will necessarily fall from such trees.

15 The Court has consistently applied the approach that there is no basis, for example, for requirements to collect or clean up nuts or leaves or the like from the ground or clear gutters, to order any intervention with, let alone removal of, a tree.

16 There is nothing extraordinary about the circumstances of the present Jacaranda that would cause me to reach a different conclusion.

17 With respect to the Variegated Fig, the issue arises as to whether or not this tree has caused two cracks to the 600 mm or so high retaining wall between Ms Channells’ property and the Deusberry property.

18 There are two cracks, approximately 1 m apart, slightly to the east of the Variegated Fig. There is no horizontal or vertical displacement of the wall at either crack.

19 Mr Deusberry put the proposition that I should find that such cracking was caused by uncontrolled stormwater flow from a downpipe located on Ms Channells’ property.

20 Ms Channells asks me to find that the cause of the cracking is the Variegated Fig.

21 I am satisfied that the extent of the cracking of the wall is small and insignificant. As a consequence, the causation of the cracking is probably irrelevant.

22 Assuming, for the purposes of this decision, that the damage was, in fact, caused by the Variegated Fig, such damage would technically satisfy the first of the tests under s 10(2)(a) of the Act – in that the tree has caused damage to Ms Channells’ property. However, the trivial nature of the damage is such that I would not, as a matter of discretion, order any intervention with this tree.

23 The application is therefore dismissed.

Tim Moore

Commissioner of the Court

03/09/2007 - Spelling - Paragraph(s) Cover sheet