Xuereb v Ott

[2007] NSWLEC 474

Land and Environment Court

of New South Wales

CITATION:	Xuereb v Ott [2007] NSWLEC 474
PARTIES:	APPLICANT Joe and Dale Xuereb RESPONDENT Joachim Ott
FILE NUMBER(S):	20367 of 2007
CORAM:	Brown C - Thyer AC
KEY ISSUES:	Trees (Neighbours) :- removal of tree - damage - compensation
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
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

20367 of 2007 Joe and Dale Xuereb v Joachim Ott

JUDGMENT

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 by Joe and Dale Xuereb of 2 Leighton Street, Rooty Hill concerning three trees located close to the common rear boundary of Mr Joachim Ott of 1 Waratah Street, Rooty Hill.

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 and Mrs Xuereb’s application is to require the removal of the three trees as:

• branches fall from the trees and have damaged a previous shed, a new shed and aviary located towards the rear of their property (and adjoining the Ott property),
• branches fall from the trees and have landed on the clothes line.
• the falling branches pose a serious safety risk for people in the rear yard of their property,
• the shade from the trees prevents grass growing in the rear yard,

4 Compensation of $330 for roof repairs to the new shed and $66 for a surveyors report is sought.

5 Mr Ott opposes the removal of the three trees. He sees the trees as providing scenic beauty and an aesthetic appeal to the neighbourhood. He is unaware of any branches falling from the trees in question and considers that the photos provided by Mr Xuereb are inconclusive and should not be relied on. Further, the lack of grass in the rear yard is the result of the dogs owned by Mr and Mrs Xuereb rather than the shade from the trees.

6 Mr Ott states that should Mr Xuereb be successful in his application then it is appropriate that he be paid compensation for lost earnings and other expenditure in preparation of the case to the sum of $1725 and compensation for the devaluation of the property brought about by the loss of trees to the sum of $25,000.

7 The three trees are mature Grey Box (Eucalyptus moluccana) and have an approximate height of some 25 m. One tree (Tree 1) is located near the common boundary and is growing in a narrow area between a shed on Mr Xuereb’s property and a shed on Mr Ott’s property. Each shed sits on a concrete slab. The other two trees (Trees 2 and 3) are located further away from Mr Ott’s property and on the opposite side of Mr Ott’s shed.

8 In this case neither party provided an arboricultural assessment of the three trees in question. Tree 1 was inspected from various locations and found to have significant amounts of mistletoe invasion suggesting poor health. A significant structural flaw was observed some 4 m above the ground where the two major limbs formed a 1m long inclusion. Various dead wood was observed in the canopy. The extent of the canopy is also restricted by the location and canopy spread of Trees 2 and 3 with the majority of the canopy located over the Xuereb property.

9 The health of Tree 1 is poor and considering the constrained growing environment, we are satisfied that it’s removal can be justified as it is potentially dangerous and likely to cause injury to persons in the Ott property, the Xuereb property or the public area adjoining these properties. Pruning of Tree 1 will not address the structural defect and restricted growing environment. The removal of the tree should be undertaken within a period of 6 months. While we accept that Tree 1 adds to the amenity of the immediate area, the potential safety issues clearly outweigh the amenity benefits.

10 Trees 2 and 3 are in better condition and do not display signs of mistletoe invasion. Their growing environment is far less restrictive and they are both considerably healthier than Tree 1. With the removal of some dead wood and the trimming of some branches that extend over the Ott property we are satisfied that the Trees 2 and 3 can remain. The removal of the dead wood and the trimming of the branches extending over the Ott property should be undertaken within a period of 6 months.

11 The claim of shade from the trees preventing grass growing in the rear yard by Mr Xuereb has not been substantiated and is not a matter that would lead to a finding that one or more of the trees should be removed for this reason based on the site view.

12 The compensation claim of Mr Xuereb for $330 for roof repairs to the new shed should be rejected as the creasing of the ridge cap on the shed is superficial and does not affect the weatherproofing of the shed. The claim for $66 for a surveyors report should also be rejected for the reason in the following paragraph.

13 Similarly, the compensation claim of Mr Ott for $26,750 should also be rejected. Section 9(2)(i) limits compensation to damage to property and not compensation for personal loss or other reasons such as the theoretical devaluation of property values.

14 For these reasons we have concluded that the application should be upheld, in part.

15 The Orders of the Court are:

1) The application is upheld, in part.
2) The respondent is to remove the Grey Box located at the rear of 1 Waratah Street, Rooty Hill between the existing shed and the boundary fence within a period of 6 months from the date of this Order.
3) The respondent is to have an AQF Level 3 arborist, with appropriate insurances, undertake general correctional pruning and to limit overhang over 2 Leighton Street Rooty Hill to a distance of 600 mm and remove deadwood in accordance with Australian Standard 4373–2007 of the remaining two Grey Box located at the rear of 1 Waratah Street, Rooty Hill within a period of 6 months from the date of this Order.
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G T Brown
Commissioner of the Court

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Peter Thyer
Acting Commissioner of the Court