Lamond v Sulima [2010] NSWLEC 1330

Land and Environment Court of New South Wales

CITATION : Lamond v Sulima [2010] NSWLEC 1330

APPLICANTS J & M Lamond PARTIES : RESPONDENTS J & G Sulima

FILE NUMBER(S) : 20670 of 2010

CORAM: Galwey AC - Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property; injury to persons; application dismissed

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING: 26/11/10

EX TEMPORE JUDGMENT DATE : 26 November 2010

APPLICANTS J & M Lamond [litigants in person] LEGAL REPRESENTATIVES:

RESPONDENTS J & G Sulima [litigants in person]

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Galwey AC Fakes C

26 November 2010

20670 of 2010 Lamond v Sulima

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in East Ryde against the owners of a tree growing on an adjoining property. 2 The applicants seek removal of the tree or, failing that, pruning of the tree to reduce its height to 4.5 metres and pruning to reduce its branches and foliage overhanging the applicants' property. 3 The applicants are concerned that the tree is leaning toward their property and that it may fall onto their house during strong winds, causing significant damage and potentially causing injury. 4 The respondents contend that the tree is healthy and poses no significant risk. They have based this opinion on an arboricultural report that they commissioned and that forms part of their evidence. The respondents wish to retain the shade and other amenity provided by the tree. 5 The tree is a 13-metre Cupressus torulosa (Bhutan Cypress) around 45 years old. It is located entirely within the respondents' property, approximately 50cm from the dividing fence and approximately four metres from the applicants' dwelling wall. The tree is in good health and has no signs of major structural defects. Foliage extends approximately 1.5 metres beyond the fenceline over the applicants' property, mostly above head height. 6 The applicants stated that the tree was three or four metres tall when they moved into the property in 1980. At that time they extended the dwelling toward the tree. 7 The applicants stated that the tree's owners had not pruned the tree since 1997. 8 The applicants are concerned that the tree is now large with a dense canopy, that it sways considerably during strong winds, and that it will fall, especially when the soil is wet following heavy rain. The applicants expressed further concern that, if left unchecked, the risk of tree failure will increase. 9 We inspected the tree from both properties and noted its good condition. We observed that the stem of the tree grows against a shed in the respondents' garden and that the stem has not moved away from the shed as it would if the tree had recently begun to lean toward the applicants' dwelling. We did not observe any heaving of the soil around the base of the tree, any cracking of the soil, any lifting or cracking of concrete or of the shed structure. In short, there were no signs that the tree has begun to lean recently or that its rootplate is at all unstable; nor did the applicants point to any such signs of instability. 10 Before the Court can make any orders regarding a tree, it must be satisfied of several matters. Under s 10(1) of the Act the Court must be satisfied that the applicant has made a reasonable effort to reach agreement with the tree's owner. 11 The respondent claimed that communications received from the applicant were not aimed at reaching agreement. However we are of the opinion that the applicants' communications satisfy s 10(1). 12 Under s 10(2) of the Act the Court must be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 13 There is no claim that the tree has caused or is causing damage. 14 With regard to the likelihood of the tree causing damage in the near future, we refer to the guidance principle discussed in Yang v Scerri [2007] NSWLEC 592, where, as a rule of thumb, the near future was determined to be 12 months from the present. It would not be reasonable to make predictions about the tree beyond this timeframe. 15 Based on our observations, we see no evidence that the tree is likely to fall within the next 12 months, and so it is unlikely to cause damage to the applicants' property or injury to any person in the near future. 16 As none of the tests under s10(2) of the Act can be satisfied, the Court has no jurisdiction to make an order for any intervention with this tree. 17 As a result, the Orders of the Court are; 1. The application is dismissed. D Galwey Acting Commissioner of the Court J Fakes Commissioner of the Court