Eaglesham & Anor v Prumm [2010] NSWLEC 1016

Land and Environment Court of New South Wales

CITATION : Eaglesham & Anor v Prumm [2010] NSWLEC 1016

APPLICANTs Stuart Eaglesham PARTIES : Julie Godfrey

RESPONDENT Dean Prumm

FILE NUMBER(S) : 20390 of 2009

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property Injury to persons

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 21/01/2010

DATE OF JUDGMENT: 21 January 2010

EX TEMPORE JUDGMENT DATE : 21 January 2010

APPLICANT Stuart Eaglesham (litigant in person) Julie Godfrey (litigant in person) LEGAL REPRESENTATIVES:

RESPONDENT Did not attend

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

21 January 2010

20390 of 2009 Stuart Eaglesham & Julie Godfrey v Dean Prumm

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Stuart Eaglesham and Ms Julie Godfrey of 41 The Quarterdeck Tweed Heads against the owner of a tree growing at 43 The Quarterdeck. Mr Dean Prumm is the owner of that property which is currently tenanted. The respondent did not appear at the on-site hearing. The tenant was aware of the hearing but elected not to attend. 2 The applicants are seeking the removal of the tree as they contend that it has caused, and could continue to cause, damage to their property and is a risk of injury to people. The damage said to have been caused is a blocked sewer system as well as damage to parked cars by falling dead wood. 3 The tree was inspected from both properties. It is a mature Ironbark, probably Eucalyptus siderophloia (Coast/ Grey Ironbark), a common species in the area. It is approximately 16 m tall and in average health. It consists of 3 main leaders, the most northern of which has been cut to about 2-2.5m above ground and from which large epicormic shoots arise and overhang the applicants' property. The other two trunks each bifurcate at 4-5m and have included bark at those points indicated by reaction wood. These attachments appear stable. There are several dead hanging branches caught in the canopy and there is approximately 5% dead wood, most of which is located in the uppermost part of the canopy. The condition of the tree is consistent with its age and the changes in its environment, 4 The tree is approximately 1 m from the dividing fence between the applicants' and respondent's properties and part of the canopy overhangs that of the applicants'. The land on which the applicants' house and the tree are located slopes quite steeply to the north and the tree is in an elevated position above the applicants' driveway/ parking area. The applicants voiced their concern about the strong southerly winds that blow debris from the tree onto their property. The tree is immediately to the north of the parking area. 5 The applicants had a plumber unblock a sewer in February 2008. Roots were removed from the sewer and the plumber surmised that they were probably from the Ironbark. This blockage was the first that had occurred since the applicants moved into their house some 4-5 years ago. No blockage has occurred since. 6 The Ironbark is approximately 6-7m distance from the sewer pipe and some 2-3m above across a series of terraces. There are other trees and shrubs in the vicinity. Therefore it cannot be found, on the balance of probability, that the blockage was caused by the tree subject to this application. 7 There is uncontested evidence that falling branches have damage parked vehicles. Due to the steepness of the land and its shape, the parking area could not be relocated to another part of the applicants' property.