Thompson v Fitzalan [2007] NSWLEC 262

Land and Environment Court of New South Wales

CITATION : Thompson v Fitzalan [2007] NSWLEC 262

APPLICANT T A Thompson PARTIES : RESPONDENT J Fitzalan

FILE NUMBER(S) : 20133 of 2007

CORAM: Moore C - Fakes AC

KEY ISSUES: Trees (Neighbours) - Neighbour Application :-

DATES OF HEARING: 7 May 2007

EX TEMPORE JUDGMENT DATE : 7 May 2007

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT In person

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE C FAKES AC

7 May 2007

07/20133 T A Thompson v J Fitzalan This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT 1 COMMISSIONER MOORE: This decision concerns an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr Thompson, a resident of 12 Rory Street, Lorn concerning a lemon scented gum (Corymbia citriodora)(the tree) located in the rear yard of 31 Alan Street, Lorn. Acting Commissioner Fakes concurs in this decision. 2 The tree is between 18 and 20 m tall and is located on the boundary between the applicant's property and Ms Fitzalan's property. A significant portion of the canopy of the tree overhangs the applicant's property and another property immediately neighbouring it. It is not necessary for the purposes of this decision to estimate the proportion of the canopy overhanging the various properties. 3 Acting Commissioner Fakes has undertaken in a visual inspection of all the relevant junctions on the tree from ground level by binoculars. She has concluded that, as best is possible from such an inspection, there is no sign of present risk of failure at any of those junctions - those signs being cracking and the like. She has also concluded that there are no unusual features of or structural defects in the tree. 4 From my own inspection, I see no reason to disagree and there are no matters that Acting Commissioner Fakes has felt warrant my examination by binoculars. 5 There have been three incidents of branch drop in the past year or so from the tree both in into the applicant's property and into Ms Fitzalan's property. 6 The applicant's wife has a fear of being hit by a falling branch while hanging out clothes on the clothesline which is located within a possible drop zone from the canopy of the tree. Her fear is understandable but the risk is a risk of a fall into an area which is not constantly trafficked but is unprotected. 7 There is no significantly trafficked area which is unprotected that on the applicant's property. We are satisfied that there is no significant risk of injury because of the limited nature of the use made of the clothes line area. 8 We have also considered the question of root damage by the tree to the applicant's property – setting aside, for the present, the question of displacement of the dividing fence between the two properties. 9 There is a minor lifting or, in some places, settlement occasioned to the paving on the applicant's property between the applicant's house and the boundary fence with Ms Fitzalan's property. Some minor disruption has been specifically drawn to our attention by Mr Thompson in the area where he had formerly had a spa located. 10 The general settlement pattern of paving, both in the vicinity of the root zone and beyond it, causes us to conclude that there is no significant risk of further future damage to the area of his property by roots from the tree. 11 We are satisfied, on balance, that there are, with respect to the tree itself, none of the four tests posed by s 10 (2)(a) and (b) of the Act satisfied as warranting our consideration of intervention with respect to the main structure of the tree. 12 In saying that, we have concluded that: o there is no sufficient significant past damage, there is no significant present damage and there is no significant risk of damage being caused in the immediate future; and o on balance, there is no significant risk of injury persons which would require intervention with respect to the structure of the tree. 13 During the course of the discussions on Ms Fitzalan's side of the fence, she indicated a willingness to come to an arrangement with Mr and Mrs Thompson to rectify the both upward and outward (towards the Thompson house) distortion in a single panel of the dividing fence. 14 We are satisfied that it would be appropriate to have that panel rectified and that that rectification be done in a fashion which would not cause damage or interference to the structure of the tree or its roots. 15 However, we are not in a position to determine precisely what that should be and we believe that, in light of the good will demonstrated by Ms Fitzalan on that point, that matter ought able to be settled between the parties. 16 Finally, it became obvious to us during the course of the view that Mr and Mrs Thompson's property was on the market. Given that we have concluded that there is no reason to intervene with the main structure of the tree, at this time, on any merits basis, we had not had regard to that fact and have set it aside entirely in these proceedings. 17 As a consequence of the foregoing, we have concluded that the application should be dismissed.