Land and Environment Court New South Wales

• Medium Neutral Citation: Albert v Thompson [2013] NSWLEC 1007
• Hearing dates: 14 January 2013
• Decision date: 14 January 2013
• Jurisdiction: Class 2
• Before: Moore SC

Decision

(1)The application is granted in part;

(2)At intervals of six months, the respondents are to prune each of the three palm trees located adjacent to the property boundary between the applicant's property and the respondents' property to remove all dead or dying fronds, all clusters of seeds and the stems to which they are attached and all dead or dying seedpods;

(3)The first pruning is to be undertaken within 60 days of the date of these orders; and

(4)Each subsequent pruning is to occur within 14 days either side of the expiry of six months after the immediate preceding pruning has occurred.

• Catchwords: Damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2005
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292; Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420
• Category: Principal judgment
• Parties: E Albert (Applicant); C & B Thompson (Respondent)
• Representation: E Albert (Applicant - in person); C & B Thompson (Respondents - in person)
• File Number(s): 21020 of 2012

Judgment

1 Three palm trees (likely to be Cocos Island Palms) grow in the front yard of a property in close proximity to the fence (and its supporting retaining wall) with the neighbouring property to the north. The three palms are approximately 10 m in height with, as is customary with such plants, fronds above a bare trunk of some 7 m or so in height

2 Each of the three palms has a root ball that is in close proximity to the retaining wall and the fence constructed on top of it between the properties. The two trees that are closer to the street frontage appeared to provide some physical support to the upper portion of the dividing fence between the properties where the fence is leaning away from the applicant's property. It is likely that the root balls of these two palms, if required to be removed, would also be a risk of causing further structural instability to the retaining wall.

3 The palms are likely to have an annual seed setting process leading to large clusters of pendulous seeds hanging below the frond area of the palms.

4 The applicant seeks orders pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2005 for the removal of each of the trees. She seeks to have the removal ordered because of the falling of dead fronds onto her property and the falling of fruit from the trees into her property.

5 The applicant owns an extensive collection of bonsai plants - some of which are located in the vicinity of the fence line immediately adjacent to the trees. The applicant's uncontradicted evidence is that some of the falling fronds in the past have damaged these bonsai trees. As a consequence of the damage to the applicant's property, one of the four statutory jurisdictional tests has been satisfied - thus giving the Court jurisdiction to consider what orders, if any, should be made for the removal of the trees or of any other nature.

6 Ordinarily, with respect to the fruit from the trees, the Court would apply the tree dispute principle, published in Barker v Kyriakides [2007] NSWLEC 292, that says that, for those who have the advantages of trees in an urban environment (these advantages being both environmental and aesthetic), there should be a requirement for the undertaking of ordinary routine maintenance by the removal of fruit and other detritus that are deposited from such trees.

7 It is appropriate, in the circumstances of this case, to depart from that principle not because of the fruits that are deposited but because of the heaviness of the stems supporting the fruits and the likelihood that those stems, when they fall, would damage property on the applicant's side of the fence.

8 I note that, in Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420, Fakes C ordered the removal of dead or dying fronds from a palm tree as an appropriate way of addressing concerns about damage to neighbouring property. I am satisfied that, in the circumstances of this case (particularly the desire of the owners of the trees to retain them and the uncontradicted evidence of one of those owners that, in at least one of those trees, there are nesting birds) that it is not appropriate to order the removal of the trees.

9 I am, however, satisfied that it is appropriate to make orders that provide an appropriate level of protection of the applicant's property by orders to require, at regular intervals, the removal of all dead or dying fronds, all clusters of seeds and all dead or dying seedpods from which those seeds have emerged.

10 Doing this will, in my assessment, provide what is an acceptable balance between the desire of the applicant to have her property protected and the desire of the respondents to retain their trees.

11 As a consequence of the foregoing, the orders of the Court are:

 

(1) The application is granted in part;

(2) At intervals of six months, the respondents are to prune each of the three palm trees located adjacent to the property boundary between the applicant's property and the respondents' property to remove all dead or dying fronds, all clusters of seeds and the stems to which they are attached and all dead or dying seedpods;

(3) The first pruning is to be undertaken within 60 days of the date of these orders; and

(4) Each subsequent pruning is to occur within 14 days either side of the expiry of six months after the immediate preceding pruning has occurred.

Tim Moore

Senior Commissioner

Amendments

16 January 2013 - Order 1 added as per Judgment Coversheet
Amended paragraphs: Paragraph 11

Decision last updated: 16 January 2013