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Land and Environment Court
New South Wales

Medium Neutral Citation:
Cikota v McIntyre [2012] NSWLEC 1331
Hearing dates:
30 November 2012
Decision date:
30 November 2012
Jurisdiction:
Class 2
Before:
Galwey AC
Decision:

The application is dismissed.

Catchwords:
TREES (DISPUTES BETWEEN NEIGHBOURS): application to remove trees dismissed; application to prune trees dismissed.
Legislation Cited:
Trees (Disputes Between Neighbours) Act 2006
Cases Cited:
Barker v Kyriakides [2007] NSWLEC 292
Grossman v Amaro [2012] NSWLEC 1154
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Lang v Huggett [2012] NSWLEC 1110
MacPhail & anor v Ware & anor [2012] NSWLEC 1230
Category:
Principal judgment
Parties:
Rajko Cikota (Applicant)

David McIntyre (Respondent)
Representation:
Rajko Cikota (Applicant) [Litigant in person]

David McIntyre (Respondent) [Litigant in person]
File Number(s):
20958 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1ACTING COMMISSIONER: In inner-city suburbs such as Redfern many residential lots are relatively small and people must live close to each other. This requires some degree of tolerance, understanding and consideration. Mr and Mrs McIntyre live in a terrace house with a leafy garden containing trees and shrubs. Mr Cikota lives in a dwelling to the west of the McIntyres' property. His daughter lives in a dwelling to the south of the McIntyres' property.

2The McIntyres' rear garden includes a Jacaranda tree and two palms. Mr Cikota is concerned that fallen leaves and other debris from the Jacaranda are causing damage to his property. He is concerned that falling palm fronds may cause injury to someone in his daughter's property. He is also concerned that the palms may have root problems that will cause them to fall onto and damage his property. He has applied to the Court under s 7 of the Trees (Disputes Between Neighbours) Act 2006 seeking orders for pruning of overhanging branches of the Jacaranda and for removal of the two palms.

3The McIntyres value the amenity provided by their trees. They do not wish to remove the palms and see no need for further pruning of the Jacaranda.

4The key jurisdictional test in this matter is at s 10(2) of the Act.

10 Matters of which Court must be satisfied before making an order
(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.

The Jacaranda

5The Jacaranda is a healthy tree near the McIntyre's rear boundary. Its crown partly overhangs Mr Cikota's property. He has previously sought permission to prune overhanging branches and has at some time pruned several branches over his property.

6He says leaves and other debris from the tree fall onto the roof of his shed and the roof of his dwelling, blocking the guttering and causing water to overflow. He says leaves fall onto the walkway alongside his house and block stormwater drains there. He says he cannot remove debris from behind his shed as there is no access to that space. He says mould and mildew build up on his property due to the leaves and debris sitting on his shed roof.

7At the onsite hearing I observed the shed roof from a ladder and the dwelling roof from an upstairs room at the rear of the McIntyre dwelling. I observed the walkway. I saw that there were some leaves on the roof of the shed, in the gutter of the dwelling and on the concrete walkway.

8None of this is "damage to the applicant's property". When asked if there was any damage Mr Cikota pointed out a section of guttering on the shed. I note that the shed is old and its condition reflects its age. There is some rust along one section of guttering, possibly as a result of debris sitting in the guttering for an extended period of time. If this can be regarded as damage, engaging the Court's jurisdiction, I refer to the principle established at paragraph 20 in Barker v Kyriakides [2007] NSWLEC 292:

"For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.
The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree."

9There is nothing about the situation before me that would lead me to diverge from that principle. The Jacaranda is not particularly large. Most of its crown is above the McIntyres' land. The amount of debris falling from the tree does not appear excessive. The level of maintenance required is not unreasonable. Mr Cikota says his age and physical condition prevent him carrying out such maintenance. However there are many aspects of domestic maintenance that various homeowners find challenging and, where necessary, regularly engage others to perform the required tasks.

10Regarding the issue of mould and mildew, the principle referred to above was extended by the Court at paragraph 14 in Hendry & anor v Olsson & anor [2010] NSWLEC 1302:

"Even if we were to conclude that the pergola and the shade cloth made no contribution (which we do not), we are satisfied that we should indicate that a proper extension of the tree dispute principle enunciated in Barker v Kyriakides is a supplementary principle that, for the same reasons of having the benefit, environmental and aesthetic, of trees in an urban area the responsibility for ordinary maintenance of a property should extend to the cleaning of such surfaces as paving and paths and the like."

11Based on the above, no orders will be made regarding the Jacaranda.

The two palm trees

Risk of damage

12Mr Cikota contends that the two palms in the McIntyres' rear garden may fall onto and damage his property. He bases this concern on a conversation he or a member of his family had with Mr McIntyre, in which Mr McIntyre apparently referred to root problems on his property. At the onsite hearing Mr McIntyre pointed out that the comment made about root problems referred to a tree in his front garden. All parties at the hearing observed the rear garden. No problems could be seen at the base of the palm trees. In the absence of any other evidence to show problems with their roots, I do not accept that the palms are likely to fall over in the near future.

Risk of injury

13Mr Cikota is concerned that falling palm fronds may cause injury, particularly to someone in his daughter's rear garden. The two palms grow close to the southern boundary of the McIntyres' rear garden. Their crowns slightly overhang the property to the south, where Mr Cikota's daughter lives. Fronds fall from the tops of the trees. Mrs McIntyre stated that most fronds fall onto their own property. Mr Cikota's daughter said that some fronds fall onto her property, although they generally fall onto the roof of the shed along her northern boundary, beneath the trees, before settling in the useable garden space.

14The frequency of fronds falling into the property to the south of the McIntyres' property is low. Furthermore, the likelihood of fronds falling while someone is present is lower, and the risk of injury lower still. In similar circumstances the Court has regarded the risk of injury to be so low as to not warrant orders for interfering with the trees (for instance: Grossman v Amaro [2012] NSWLEC 1154 at 8 and 11; Lang v Huggett [2012] NSWLEC 1110 at 15; MacPhail & anor v Ware & anor [2012] NSWLEC 1230 at 51). The McIntyres expressed their intent at the hearing to undertake some regular removal of dead fronds from crowns of the two palms.

Conclusions

15Fallen leaves and debris are not damage. However, taking Mr Cikota's claims at their highest, if I accept that a section of rusted guttering on an ageing shed is "damage to the applicant's property" as a result of fallen leaves, this would still not lead me to make orders to prune the Jacaranda. A reasonable level of maintenance would prevent build-up of leaves and debris. Similarly, such maintenance would also prevent a build-up of mould and mildew.

16Mr Cikota could show no evidence that the palms are likely to fall over in the near future.

17The risk of injury from falling palm fronds is so low that it does not warrant orders from the Court to interfere with these trees.

18As a result of the above, the application is dismissed.

Orders

19The orders of the Court are:

(1)The application is dismissed.

__________________________

D Galwey

Acting Commissioner of the Court

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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: 30 November 2012