Land and Environment Court New South Wales

• Medium Neutral Citation: Llavero v Shearer [2011] NSWLEC 1053
• Hearing dates: 2 March 2011
• Decision date: 02 March 2011
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1) The application for compensation for repairs to the shed is dismissed.

(2) The application to remove the tree is upheld.

(3) The respondents are to engage and pay for an AQF level 3 arborist to remove the tree to 10cm below the bottom of the fence and to have the stump poisoned.

(4) This work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5) The respondents are to organise and pay for the space in the fence where the tree stands to be fenced to an equivalent standard of the adjoining fence.

(6) The respondents are to give the applicants seven days notice of the works in orders 3 and 5.

(7) The applicants are to provide all access to their property necessary for the works in orders 3 and 5 to be completed.

(8) The works in Orders 3 and 5 are to be completed within 90 days of the date of these orders.

• Catchwords: TREES [NEIGHBOURS]; damage to property; compensation
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: J and I Llavero (Applicants); B and B Shearer (Respondent)
• Representation: Peter J Snelgrove [solicitor] (Applicants); B and B Shearer [litigants in person] (Respondent)
• File Number(s): 20898 of 2010

Judgment

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

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Stanmore against the owner of a tree growing on an adjoining property.

2 The applicants seek removal of a Lilly Pilly tree and compensation for repairs to their shed, claiming that the tree has caused damage to this shed. Although not expressed in their application, they also seek an order for reinstatement of a length of the fence on the common boundary once the tree is removed.

3 The respondents wish to retain the tree.

FINDINGS

4 I viewed the tree from both properties, noting its location relative to the common boundary. The shed was viewed from the respondents' property and from the applicants' property, including from an upstairs balcony.

5 The tree is a Lilly Pilly in good health. It straddles the boundary but is approximately 90% on the respondents' land at ground level and is therefore "principally on their land" and so is situated "on the land" for the purposes of s 4(3) of the Act.

6 A new fence has recently been constructed along the common boundary with a gap left for the stem of the tree. If the tree were removed, the gap in the fence would allow view and access from either property into the neighbouring property. Both parties expressed a desire for this matter to be resolved should any orders for tree removal be made.

7 The recently constructed fence on the common boundary was the subject of an application to the Local Court. An order was made for the applicants and the respondents to share the costs of that fence. Prior to this, and during negotiations about the fence, the applicant requested that the respondent remove the Lilly Pilly. Although the applicants applied to Marrickville Council for a permit to remove other trees on their property, they did not apply to remove the Lilly Pilly. (Regardless, Council included in their permit permission for the Lilly Pilly to be pruned.)

8 The crown of the tree overhangs both properties roughly equally.

9 The tree's stem forks at fence height. The main limb nearest the applicants' property grows over their property and is already on their side of the boundary at the height of the shed gutter.

10 The shed is close to the boundary so that the gutter edge appears to be directly above the boundary. This has resulted in the growth in girth of that part of the tree pushing against the gutter, causing an indentation in its edge. This would not, by itself, prevent the gutter functioning at present. Future growth will increase this encroachment and may cause more significant damage.

11 Observing the shed, it is apparent that debris from the tree has built up for some considerable time on the shed roof and in its gutters. This has blocked the gutters and caused them to rust, resulting in the gutters now being dysfunctional. I consider this damage to have been caused by a lack of maintenance, rather than by the tree itself.

JURISDICTION

12 Setting aside the degree of damage to the gutter, it can reasonably be claimed that where the tree is pushing against the gutter it has caused damage. Therefore, under s 10(2) of the Act, the Court has jurisdiction to make orders regarding the tree.

DISCRETION

13 When determining an application, the Court is to consider the matters outlined in s12 of the Act. The clauses I consider to be relevant to this situation are:

(a) The tree is principally on the respondents' land.

(b2)The tree cannot be pruned clear of the shed without destroying the tree.

(b3)The tree provides shade and privacy to the respondents' property.

(c,d,f,g) The tree does not have significant historical or cultural vales, does not contribute significantly to the local ecosystem, does not contribute significantly to public amenity, nor does it significantly benefit soil stability or the water table.

(e)The tree contributes to the natural landscape of the respondents' property.

(h)(i)The majority of damage to the gutter is a result of lack of maintenance (cleaning of debris from roof and gutters).

(h)(ii)The respondents did not take the opportunity earlier to apply for tree removal, although its growth against the shed guttering was apparent at the time. The applicants' concerns with the tree were raised prior to the respondents' permit application. The respondents did not include the Lilly Pilly despite applying to remove several other trees. At the time of applying for the permit, the fact that the tree was pushing against the shed gutter would have been apparent as the tree's girth has increased little since then. The fence would not require further works if the Lilly Pilly had been removed at the same time as other trees.

14 With consideration of the points outlined above, the Court can make orders described in s 9 of the Act.

15 Considering the above, I find that the tree is causing damage to the shed, but is not the cause of the gutters being dysfunctional and requiring replacement. The principal cause of damage to the gutters is the applicant's lack of maintenance. However, the position of the tree means that damage from its growth cannot be restrained or prevented without removing the tree. The respondents have had opportunity to remove the tree but have not done so. This opportunity was available to them prior to repair of the fence.

ORDERS

16 Therefore, the Orders of the Court are:

(1) The application for compensation for repairs to the shed is dismissed.

(2) The application to remove the tree is upheld.

(3) The respondents are to engage and pay for an AQF level 3 arborist to remove the tree to 10cm below the bottom of the fence and to have the stump poisoned.

(4) This work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5) The respondents are to organise and pay for the space in the fence where the tree stands to be fenced to an equivalent standard of the adjoining fence.

(6) The respondents are to give the applicants seven days notice of the works in orders 3 and 5.

(7) The applicants are to provide all access to their property necessary for the works in orders 3 and 5 to be completed.

(8) The works in Orders 3 and 5 are to be completed within 90 days of the date of these orders.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 14 March 2011