Nolan v Psaltis [2007] NSWLEC 764

Land and Environment Court of New South Wales

CITATION : Nolan v Psaltis [2007] NSWLEC 764

APPLICANT Noela Nolan PARTIES : RESPONDENT Robyn Psaltis

FILE NUMBER(S) : 20752 of 2007

CORAM: Murrell C - Fakes AC

KEY ISSUES: Trees (Neighbours) :- Removal of the tree, potential hazards, damage to property

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 24/10/2007

EX TEMPORE JUDGMENT DATE : 24 October 2007

APPLICANT Noela Nolan, litigant in person LEGAL REPRESENTATIVES:

RESPONDENT Robyn Psaltis, litigant in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Murrell C and Fakes AC

Date: 24 October 2007

20752 of 2007 Noela Nolan v Robyn Psaltis

JUDGMENT 1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning a Lilli Pilli Tree located at 47 Denman Avenue, Woolooware. This property is owned by Mrs Psaltis. The application is made by Mrs Nolan of Unit 11, No 58 Flinders Road, Woolooware. 2 Mrs Nolan is concerned that the roots of the tree are heading towards the bathroom and the toilet of her unit. She has been living there for 3 ½ years. The pavers of the rear of the property have partly lifted in places and these are potential trip hazards, especially in the circumstances of the applicant's reduced mobility. She is also concerned that the fence is leaning and may need some repair. Mrs Nolan also expressed concern about debris falling blocking gutters and collecting on the roof. To that end she is seeking removal of the tree.

3 According to Mrs Psaltis the tree was planted approximately 50 years ago by her mother and at that time the block behind the present dwelling was a vacant lot. She also notes that the fence is quite old and has a lean and it may need to be replaced but it may not necessarily be directly related to the tree. She requests that the tree be retained.

4 Under s 10(2) of the Act the Court is obliged to consider a number of factors. Specifically, has the tree concerned caused, is causing or is likely in the near future to cause damage to the applicant's property or injury to any person. To this end we need to address the matters addressed by Mrs Nolan. 5 In terms of the roots leading to the bathroom and the toilet, in the 3 ½ years that she has lived in her dwelling, there has been no blockage to the toilet. Accordingly, the Court cannot make an order in respect to the potential of these roots to cause damage when no evidence has been found.

6 In terms of the pavers, we did find that the pavers have been lifted and we removed pavers and found roots of the Lilli Pilli had indeed created a situation where tripping is likely to occur. To that end, it is likely that there could be injury to a person.

7 In the matter of the fence, the fence is of a certain age, it is leaning, it is a timber fence, there could be many reasons why it is leaning. It is approximately 0.5 m from the trunk of the tree and there was no evidence to suggest that the tree itself was having an impact on the fence. 8 Other matters that the Court must consider under s12 of the Act before orders are made is the contribution that the tree makes to the local environment. We consider that the Lilli Pilli does "contribute to the local ecosystem and biodiversity, it does contribute to the scenic value of the land and it does have extrinsic value to public amenity".

9 We also note that under s 12(h)(ii) that the owner of the land has taken significant steps in preventing or rectifying damage to property and injury to persons in that she has had root barriers installed along the fence and has pruned branches back from the tree.

10 In light of what we have observed on site today the Court is prepared to permit the application in part however, the tree is to be retained. In allowing the appeal in part this means, the pavers are to be lifted from a section of the corner of the house to the end of the house and roots are to be removed and the pavers relayed to repair the potential trip hazard. 11 The Court also orders the extension of the root barrier to the edge of the property boundary of Mrs Nolan's property being Unit 11, No 58 Flinders Road, Woolooware. We find that there is no reason to order the removal of the tree. In respect of the debris, we refer to the Tree Dispute Principles as set out in the judgment of this Court in Barker v Kyriakidis. In this regard we are satisfied that it is not appropriate to order the removal of or any pruning in addition to what has happened with the tree on the basis of it dropping leaves, twigs and the like on the applicant's property.

12 As discussed in the Principles articulated in the above Judgment, for people who live in treed urban environments there is some necessary degree of assumption of house keeping required in order to appreciate and retain the benefits of having such a treed urban environment.

13 We are therefore not satisfied that the dropping of leaves and the like from this tree provides any basis for ordering removal or intervention of the tree. We also note that the tree is 50 years old and that its growth habit has slowed somewhat and, in fact, the installation of a root barrier has caused a decline in an otherwise healthy canopy. This tree will not substantially increase in size over the next 10 to 20 years. The dieback is not considered to be hazardous and to that end we are not ordering the removal of the tree. However, we do note that the owner of the tree has agreed in the short term to remove the dieback and in the longer term to have the tree annually inspected and any work done as the arborist may recommend.

14 Accordingly for the reasons above the Orders of the Court are: 1. The application is permitted in part,

2. Application to remove the Lilli Pilli tree is refused; 3. The pavers are to be lifted from a section of the corner of the applicant's house to the end of the house and the tree roots are to be removed and the pavers relayed to repair the potential trip hazard at the respondent's cost; 4. The root barrier is to be extended to the edge of the applicant's property boundary Unit 11, No 58 Flinders Road, Woolooware at the respondent's cost; 5. The tree to be annually inspected and the respondent is to carry out any work as the arborist may recommend at the respondent's cost.

_______________________ _______________________ J Murrell J Fakes Commissioner of the Court Commissioner of the Court A.K

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.