Land and Environment Court New South Wales

• Medium Neutral Citation: Newey v Zhou [2012] NSWLEC 1049
• Hearing dates: 7 March 2012
• Decision date: 07 March 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application to remove tree dismissed; pruning ordered; compensation refused

• Catchwords: TREES [NEIGHBOURS] Damage to property; dropping of leaves
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
• Category: Principal judgment
• Parties: Mrs E Newey (Applicant); Mr F Zhou (Respondent)
• Representation: Applicant: Mrs E Newey (Litigant in person); Respondent: Mr F Zhou (Litigant in person)
• File Number(s): 20936 of 2011

Judgment

1 COMMISSIONER: Mrs Newey has applied to the Court for orders to remove a Casuarina tree she contends has caused damage to her garage. The damage she is concerned about is the build up of leaf litter and small branches on the roof of the garage, in the guttering and on the ground around the garage. Mrs Newey is also seeking compensation of $280, which is money she paid for the cleaning of the roof.

2 Mr Zhou, the respondent, does not want to remove the tree, particularly on the basis of leaf drop that he says is something all trees do.

3 The application is made under s 7 of Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). Section 10(2) states that the Court must not make an order under this Part unless it is satisfied that the tree has caused, is causing, or could in the near future cause, damage to the applicant's property or could cause injury to any person. If any one of those tests is satisfied, the Court may make any order it thinks fit to remedy, restrain or prevent damage or injury.

4 The on-site hearing commenced with an inspection of the tree. It is a healthy mature specimen growing in a corner of Mr Zhou's backyard. He has owned his property for eleven years and the tree was well established when he purchased it. Part of the canopy overhangs Mrs Newey's garage. I saw no obvious structural defects in the tree and there was very little dead wood and none of sufficient size to cause injury or damage should it fall.

5 Mrs Newey's garage is at the rear of her property. She has lived there for 51 years. The garage has a corrugated asbestos roof; the upper part of the rear gable is broken. Several branches of the tree are brushing the roof and the gable. There is a build up of leaf litter on the roof but that in itself does not appear to have caused any damage. Similarly, while the gutters are said to overflow, there does not appear to be any damage as a result of that.

6 After viewing the tree and the garage, I am satisfied that several low branches could, in the near future, cause damage to the roof and gable of the garage and therefore as one of the tests in s 10(2) is satisfied, the Court can make an order in that regard.

7 I am not satisfied that the fallout of leaves has caused damage. However, if I am wrong in that, as a matter of discretion I would not make the orders Mrs Newey seeks, that is, the removal of the tree. The tree does make a contribution to the natural environment and to Mr Zhou's backyard. While I accept that Mrs Newey is frustrated by the volume of material that falls from the tree, removal of the tree would be disproportionate to the problem.

8 The Court has a long-held Tree Dispute Principle published in Barker v Kyriakides [2007] NSWLEC 292. Essentially, this principle states that the natural process of the shedding of leaves, fruit, twigs and so on by trees will not ordinarily lead to the making of orders for any intervention with a tree. It is considered that where trees are growing in urban environments, a degree of regular external housekeeping is expected. While I appreciate that this is difficult for Mrs Newey to do herself, the circumstances are not so extreme as to lead me to depart from the tree dispute principle.

9 Because I am not satsified that the dropping of leaves has caused any damage, no orders can be made for compensation for the cleaning of the roof.

10 As there is a potential for the lowest large branch and several smaller low branches to cause damage, orders will be made for their removal. The work is to be organised and paid for by Mr Zhou. Whoever carries out the work is to have appropriate qualifications and insurance. Given the nature and age of the garage roof, it is not to be stood on for the purpose of accessing the branch.

11 Therefore, as a consequence of the forgoing, the Orders of the Court are:

(1) The application to remove the tree is dismissed.

(2) The application for compensation is dismissed.

(3) Within 60 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to remove the low branch overhanging and partly touching the roof of the applicant's garage. All other branches within one metre of the roof are to be removed back to their point of origin on the trunk. The roof of the garage is not to be used for accessing the branch.

(4) All work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5) The applicant is to provide all reasonable access for the work to be carried out in a safe and efficient manner on two working days (verbal) notice.

______________________

J Fakes

Commissioner of the Court

Decision last updated: 07 March 2012