Land and Environment Court New South Wales

• Medium Neutral Citation: Ebsworth v Migachov [2014] NSWLEC 1157
• Hearing dates: 12 August 2014
• Decision date: 12 August 2014
• Jurisdiction: Class 2
• Before: Galwey AC Durland AC

Decision

The application is dismissed

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; debris; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292; Hendry & anor v Olsson & anor [2010] NSWLEC 1302
• Category: Principal judgment
• Parties: APPLICANT; Ninett Ebsworth; RESPONDENTS; Yvette MigachovAlex Migachov
• File Number(s): 20331 of 2014

Judgment

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

The application

1 This is a decision of both Acting Commissioners.

2 Ms Ebsworth has applied to the Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for neighbouring trees to be pruned. The trees are Lilly Pillies planted adjacent to the common boundary and overhanging Ms Ebsworth's pool and surrounding paving. She says berries and other debris from the trees have dropped onto her property, that they have damaged her pool cleaning equipment and that they cause a risk of injury to family members using the paved area. She wants the trees pruned down to a manageable height, approximately 2 metres, and overhanging limbs pruned back to the boundary. She seeks orders for ongoing pruning to maintain the trees at this size.

3 Mr and Mrs Migachov own the neighbouring property on which the trees grow. They have not filed any response to Ms Ebsworth's application and did not attend today's onsite hearing.

4 We viewed the trees from Ms Ebsworth's property, where she showed us the issues she wishes us to consider.

5 There are three established Lilly Pillies (Syzygium sp.) planted in a row close to the boundary. They are approximately 10 metres tall. At either end, continuing the row, several more young Lilly Pillies have been planted. They are approximately 2 metres tall. The three established trees overhang the Ebsworth property by about 2 metres.

6 Ms Ebsworth bought a pool cover some time ago to prevent berries sinking to the bottom of the pool, where they had caused damage to the pump of the cleaning equipment. She showed us the damaged pump and has a receipt for its replacement. She does not seek compensation.

7 We observed the pool cover and surrounding paving to be covered in a layer of berries from the Lilly Pillies. Judging by their weathered state they had been lying there for some time. Ms Ebsworth says most of the berries fall throughout summer, preventing her family using the pool for periods.

8 Ms Ebsworth also said that debris and shading from the trees caused staining of the paving and mould to grow thereon.

9 Ms Ebsworth also stated that a pipe near the pool had been damaged, although possibly not by tree roots. She is concerned that roots may cause damage to pipes in future.

10 While we may find Ms Ebsworth's submissions completely reasonable, we must consider the issues within the framework of the Act. It is no light matter for the Court to order interference with trees.

11 We accept that berries from the trees are likely to have contributed to the damage to the pool cleaning pump, although we note that berries from Ms Ebsworth's palms, far fewer in number though they would be, may also have fallen into the pool. Our acceptance of this enlivens the Court's jurisdiction under Part 2 of the Act. We also accept that the berries we observed on the paving pose a risk of injury to people on their property. Again, this enlivens the Court's jurisdiction. However before making orders we are required to consider a range of matters under s 12 of the Act.

12 Of most relevance here is consideration of any actions taken by the parties to deal with the issues. The Court established a principle in Barker v Kyriakides [2007] NSWLEC 292 that states, in essence, that people living in urban environments with trees are expected to maintain their properties and that such maintenance includes the cleaning up of debris from trees in the broader environment; debris including leaves, twigs, fruits and so on. The Court has consistently applied this principle and extended it in Hendry & anor v Olsson & anor [2010] NSWLEC 1302 to include the cleaning of mould, slime and such that may be encouraged to grow by the presence of trees.

13 Unfortunately for Ms Ebsworth, there is nothing about the extent of debris here that is significantly worse than many other situations where the Court has adhered to that principle. The principle applies to maintenance to prevent both damage and injury. Therefore, in accordance with that principle, we will not be making orders to interfere with these trees.

14 We note that Ms Ebsworth has approached her local council but has received conflicting recommendations about what action she might be able to take. With further efforts, she may find that a council officer can provide clearer guidance about options for resolving these issues with her neighbours.

Orders

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

(1) The application is dismissed.

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D Galwey

Acting Commissioner of the Court

____________________________

L Durland

Acting Commissioner of the Court

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Decision last updated: 12 August 2014