Franklin v Firth [2007] NSWLEC 521

Land and Environment Court of New South Wales

CITATION : Franklin v Firth [2007] NSWLEC 521

APPLICANT Dulcie Franklin PARTIES : RESPONDENT Jeanette Firth

FILE NUMBER(S) : 20495 of 2007

CORAM: Bly C - Tuor C - Thyer AC

KEY ISSUES: Trees (Neighbours) :- Damage caused by Camphor Laurel trees to adjoining property

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 15/08/2007

EX TEMPORE JUDGMENT DATE : 15 August 2007

LEGAL REPRESENTATIVES: Mrs D Franklin - litigant in person Mrs J Firth - litigant in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Bly C, Tuor C and Thyer AC

15 August 2007

20495 of 2007 Franklin v Firth

JUDGMENT 1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) in relation to Camphor Laurel trees located on a property at 2 Northcote Street, Caringbah (the site).

2 Mrs J Firth owns the site. Three Camphor Laurel trees adjoin the southern boundary of the site. A forth Camphor Laurel tree is located in the south west corner of the site.

3 The application has been made by Mrs D Franklin of 4/137A Gannons Road, Caringbah. She is seeking orders from the Court requiring the removal of the two trees closest to her property.

4 Section 10 of the Act relevantly provides:

(1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b)….. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 5 The evidence of Mrs Franklin is that roots from the trees have lifted the paving in her rear courtyard. She has previously reset the pavers at which time a number of roots were found which smelt of camphor. She has also found camphor smelling roots in the front garden of her property and is concerned that the blockage to her toilet is being caused by damage from the roots. She does not want the trees to be removed but is concerned that they are causing and will continue to cause damage to her property and is that she may be injured by the unevenness of the paving which is again starting to lift.