Land and Environment Court New South Wales

• Medium Neutral Citation: McGroder & Anor v Nelson & Anor [2011] NSWLEC 1300
• Hearing dates: 22 September 2011
• Decision date: 22 September 2011
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

Application to prune liquidambar is refused

Application to prune fronds from two palm trees upheld

Orders made for pruning

• Catchwords: Trees (Neighbours) - Damage to property; Risk of injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292; Robson v Leischke [2008] NSWLEC 152 159 LGERA 280; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Donald & Kathleen McGroder (Applicants); Chris & Lyn Nelson (Respondents)
• Representation: D & K McGroder (Applicants in person); C & L Nelson (Respondents in person)
• File Number(s): 20484 of 2011

Judgment

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

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a unit in Coorong Road, Gymea Bay against the owners of two palm trees and a Liquidambar standing in the rear garden of the adjacent property.

2 The applicants seek the removal of one of two palm trees or "severe lopping of both palm trees" growing on the respondents' land as they contend that the trees present a risk of injury to persons from falling fronds and fruit stalks.

3 The applicants also seek orders for the pruning of a branch from the respondents' Liquidamber tree as they contend that the fruit and the leaves from the branch causes their gutters to block and may lead to the ingress of water into their roof. They also contend that the fallen fruit stains the concrete stepping stones along their side path.

4 Trees 1 and 2 are Canary Island Date palms ( Phoenix canariensis) . They are mature trees, more than 30 years old. They are situated on the southern side of the respondents' rear garden. Tree 1 is about 2 m from the boundary fence and tree 2 is about 3 m from the fence. Both trees are about 10 m tall with trunk diameters of about 800 mm. The outermost 1.5 to 2m of the fronds on the southern side of the trees overhangs the applicants' roof and their outdoor seating and barbeque area.

5 Tree 3, a Chinese Liquidamber ( Liquidambar formosana) , stands in the rear southeast corner of the respondents' garden. The respondents say that the tree is more than 20 years old. I inspected the tree and found it to be healthy with no obvious indications of defective or weak branch unions or other potential defects throughout the tree. The branch extending to the south and above the applicants' roof appeared healthy and the branch union appeared sound. I saw nothing to suggest the need for a more detailed inspection of the tree.

6 The applicants moved into their newly constructed unit complex about six years ago. Their unit is located at the rear of the property and is therefore very close to the common boundary with the respondents' rear garden. The unit has a small courtyard for outdoor entertaining and barbeque. The courtyard is covered with a pergola structure with an alcynite-sheeting roof. The courtyard is directly beneath the outermost fronds of the palm tree T1. The unit is about 1.5 m from the common boundary and there is a narrow side path between the fence and the building.

7 Under s 10(2) of the Act, the Court must not make an order under the tree concerned (a) has caused, is causing or is likely in the near future to cause damage to the applicants' property or (b) is likely to cause injury to any person.

8 The applicants say that dead palm fronds and fruit stalks are shed regularly into their courtyard and on to the pergola roof. The respondents do not dispute that palm fronds have fallen on their neighbours' property from time to time, but they do not agree that the fruit stalks present a risk of damage or injury.

9 I picked up a fallen fruit stalk from the applicants' side path and noted that it was of very light weight and I accept the respondents' proposition that the fruit stalks are unlikely to cause injury or damage property, as they are neither as heavy or dense as dead fronds and therefore I will not make orders in relation to the deposition of fruit stalks.

10 I am satisfied on the evidence that dead fronds from tree 1 and tree 2 have fallen to the applicants' property and that the weight of these fronds is sufficient to damage the applicants' property in the near future and to cause injury to persons. In this matter, I consider the near future to be a period of 12 months from the time of the hearing, consistent with the Court's finding in Yang v Scerri [2007] NSWLEC 592.

11 As a consequence of the foregoing, the requirements of s 10(2) of the Act are met and the Court's jurisdiction is enlivened and orders can be made.

12 I turn now to the Chinese Liquidamber. I am not satisfied on the evidence that this tree presents any risk of injury to persons or that it has caused, is causing or is likely in the near future to cause damage to the applicants' property.

13 As a matter of jurisdiction, as discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152; 159 LGERA 280 at [171]-[172], the mere deposition of material does not cause damage and enliven the Court's jurisdiction under the Act. I did not observe any damage from the deposition of leaf and other small debris from the tree. If I am wrong on that point, I consider that the tree dispute principle adopted by the Court with respect to trees in urban environments and published in Barker v Kyriakides [2007] NSWLEC 292 to be appropriate in this matter.

14 Overall, the applicants have not demonstrated any extraordinary basis on which I should defer from the consistently applied principle in Barker .

15 Before the Court can make a determination, it must consider relevant matters under s 12 of the Act. The relevant matters in the case are:

(a) The two palms and the Liquidamber are wholly located on the respondents' property.

(b) (3) The trees are a historical feature of the respondents' garden and they seek their retention as they have had an attachment with them over many years of occupation and residency.

(h) (i) The respondents recently offered to allow the applicants access to their property in order to undertake frond removal at the applicants' cost, or at a shared cost. The applicants were not disposed to this option. I do not consider this a reasonable option in view of the fact that the trees belong wholly to the respondents and the option would place an unreasonable burden on the applicants to prune all dead fronds from the palms since dead fronds can be carried a considerable distance in strong winds, thus the applicants would be funding works to the benefit of the respondents' own safety.

(j) I consider the removal of dead fruit components and stalks is not necessary, as these elements do not present a risk of injury or damage.

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

(1) The application to prune a branch from the tree 3 Liquidamber is refused.

(2) The respondents are to engage and pay for an AQF level 3 arborist to prune the dead fronds from palm trees T1 and T2. Only dead fronds are required to be removed and the work is to be in accordance with Australian Standard AS4373-2007 "Pruning Amenity Trees" with specific reference to clauses 5.2 and 7.4 of that Standard. The tools used for the work are to be disinfected before and after pruning the fronds so as to minimise the risks of inoculating or spreading Fusarium wilt disease.

(3) The work in 2 is to be completed within 30 days of the date of these orders and is to occur on an annual basis within 14 days either side of the anniversary of the initial pruning.

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 21 October 2011