Morante v Howlett [2011] NSWLEC 1158

Land and Environment Court New South Wales

Medium Neutral Citation: Morante v Howlett [2011] NSWLEC 1158 Hearing dates: 22 June 2011 Decision date: 22 June 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] future damage to property; fallen leaves and risk of injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: N Morante (Applicant) I & B Howlett (Respondents) Representation: Applicant: N Morante (Litigant in person) Respondents: I & B Howlett (Litigants in person) File Number(s): 2012 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Menai against the owners of a tree growing on an adjoining property. 2The applicant is seeking the Court to order the removal of the tree on the basis that it may, in the future, cause damage to the fascia of his dwelling and to sewerage and drainage pipes in the tree's vicinity. The applicant also contends that fallen leaves from the tree create a slip hazard that pose a risk of injury to his elderly wife. 3The respondents value the tree for the screening it provides between the two properties and do not wish to remove it. 4The tree is an Acacia floribunda growing in a narrow garden bed in the respondents' front yard near the side boundary fence between the two properties. It is approximately 4.5m high and overhangs a side pathway on the applicant's property by about 1m. At the time of the hearing the foliage was at least 0.5m from the side fascia of the front portion of the applicant's dwelling. 5The pathway is fully paved and level. The pathways and driveway on the applicant's property were clear of leaves and appear to be regularly maintained. 6Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned 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. 7In this matter the applicant is seeking orders to prevent future damage. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592 the rule of thumb regarding the interpretation of 'the near future' is deemed to be a period of 12 months from the time of the hearing. This is a period I consider appropriate in this matter. 8With respect to likely future damage to the fascia, there is no indication that the tree will reach the fascia within 12 months and even if it did, given the small size of the branchlets, it is unlikley to cause damage. 9The applicant stated that there are no past or present problems with the sewer or drainage systems and he could provide no evidence as to how the roots of the tree are likley to cause future damage. 10Similarly, there is no evidence of any slipping or injury as a result of the leaf drop. As previously stated, the paths appear to be frequently swept. As the applicant was self-represented, he was made aware of the tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292. That is, for people who live in leafy urban environments and who enjoy the benefits of trees, the dropping of leaves, fruits etc will not ordinarily lead to the making of orders for any interference with a tree on that basis. It is expected that householders undertake ordinary routine maintenance of paths and so on. It was put to the applicant that he could attempt to prove exceptional circumstances however he was unable to do so. 11In conclusion, based on the lack of evidence of current damage to property or any history of slipping on leaves combined with the obvious high level of maintenance of external surfaces on the applicant's property and the unlikely event of damage to property in the near future, I find that none of the tests under s 10(2) are satisfied. 12Therefore as a consequence of the forgoing, the Orders of the Court are: (1)The application to remove the tree is dismissed. ______________________ J Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2011