Fisher v Nassar & Anor [2008] NSWLEC 1459

Land and Environment Court of New South Wales

CITATION : Fisher v Nassar & Anor [2008] NSWLEC 1459

APPLICANT Eric Fisher

PARTIES : 1st RESPONDENT George & Anna Nassar

2nd RESPONDENT T K Williams

FILE NUMBER(S) : 20731 of 2008

CORAM: Fakes AC

KEY ISSUES: Trees (Neighbours) :- Removal of tree: damage to property: injury to persons.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592 Robson v Leischke [2008] LEC 152

DATES OF HEARING: 07/11/2008

DATE OF JUDGMENT: 7 November 2008

APPLICANT Eric Fisher, Self Represented

LEGAL REPRESENTATIVES: 1st RESPONDENT George & Anna Nassar, Self Represented

2nd RESPONDENT T K Williams, Self Represented

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes AC 7 November 2008

20731 of 2008 Eric Fisher v George & Anna Nassar and T.K. Williams JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Eric Fisher of 42 Wemyss Street Enmore against the owners of a tree located at 97 Newington Street Marrickville. The owners of that property are Mr and Mrs Nassar and their daughter Mrs Williams. 2 Marrickville Municipal Council was represented at the on-site hearing by their Tree Management Officer, Ms Kate O'Connell. 3 The tree is a semi-mature Platanus x hybrida (London Plane) located at the northern end of the respondents' garden about 1.5-2 m away from the boundary fence between the two properties. The tree is reported to be about 15 years old. The applicant seeks the removal of the tree as he contends that the tree has caused, is causing and could cause future damage to his property and potentially injury to persons. Specifically he is concerned that pavers in his driveway have lifted, that the wooden gates located in the driveway catch on the pavers, that the external door to the kitchen scapes on the floor and that there is a crack in the plaster above the kitchen door. He is also concerned about a crack in the mortar, in the vicinity of the tree, in the brick dividing fence. The applicant is also concerned that if the roots of the tree were to damage the external wall of his two storey 1885 house that the wall could collapse and people could be killed or injured. 4 The tree is healthy with a sound structure except for the branches on the northern side of the tree that have been inexpertly lopped to the fence-line by the applicant. 5 The driveway shows unevenness is several sections, some of which are located well-away from the tree. There is a slight mound in the centre of the driveway where the gates are located. The pavers are not lifted enough to cause a trip hazard and the driveway is serviceable. 6 The house is of double brick construction. There is no visible recent cracking in the exterior walls of the house, nor to the sandstone foundations that are closest to the tree. There is evidence of previously repaired cracks over the corners of the windows and doors and in the wall. This is not inconsistent with a building of this age. There was no cracking or displacement visible in the small brick wall that retains a raised paved terrace between the driveway and the house. This was closely inspected in the area between the tree and the kitchen door. 7 There is a crack between the mortar of the single skin brick wall of the boundary fence in the vicinity of the tree. This wall does not appear to have been built by a professional brick-layer as the mortar is very rough with many gaps. Another similar crack was noted many meters away from the Plane tree. 8 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. 9 The Court must also consider a range of other matters under s 12 of the Act. The relevant clauses in this case are: