Beggs v Amos

[2025] NSWLEC 1670

Land and Environment Court

New South Wales

Medium Neutral Citation:

Beggs v Amos [2025] NSWLEC 1670

Hearing dates:

19 May 2025

Date of orders:

16 September 2025

Decision date:

16 September 2025

Jurisdiction:

Class 2

Before:

Nichols AC

Decision:

The Orders of the Court are:

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

Catchwords:

TREES [NEIGHBOURS] Damages from falling branches, leaves and debris in gutters – orders made

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW) ss 7, 9, 10, Pt 2

Cases Cited:

Barker v Kryiakides [2007] NSWLEC 292 Hinde v Anderson [2009] NSWLEC 1148

Grossman v Amaro [2012] NSWLEC 1154

McCallum v Riodan [2011] NSWLEC 1009

Zangari v Miller (No 2) [2010] NSWLEC 1093

Category:

Principal judgment

Parties:

Robert Allan Beggs (Applicant)
Ian Amos (Respondent)

Representation:

Mr R Beggs (Self represented)
Mr I Amos (Self represented)

File Number(s):

2025/93556

Publication restriction:

Nil

Judgement

1. COMMISSIONER: The Applicant, Mr Beggs of 1 Doran Close Thornton, contends that over recent years the tree (noted as a grey gum) growing on the Respondent's property near the rear boundary has been shedding branches and leaves onto the Applicant’s property. The Applicant submitted evidence of small twigs and leaves that had fallen and landed on the Applicant’s property and in the gutters. The Applicant is concerned that unless the tree is removed there is a risk of tree failure causing damage to the Applicant’s property.

2. Apart from the applicant's concerns about the ongoing risk of damage to property, the applicant is also concerned that the tree may cause injury to people on his property.

3. The application is made pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Act).

4. The Respondent maintains that the tree is healthy, added a positive contribution to the environment and amenity of the property and does not wish to remove it.

5. In applications under Part 2 of the Act, the key jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

6. If any of the tests are met, the Court's power under s 9 of the Act to make any orders it thinks fit under s 9 of the Act is engaged.

7. As neither party engaged an arborist to provide independent expert evidence these observations are based on the arboricultural expertise I bring to the Court. The tree has been incorrectly identified by the Applicant as a grey gum (Eucalyptus punctata) and is correctly identified as a spotted gum (Corymbia maculata). I considered the tree to be healthy and is good condition at the time of the inspection (date of the hearing being 19 May 2025).

8. I observed the roof and gutters of the Applicant’s dwelling to have collected a minor amount of debris that had fallen from the tree. The Applicant was unable to provide evidence of previous damage arising from branches or debris falling from the tree. No evidence has been adduced to satisfy any of the tests in s 10(2) and therefore no orders can be made in relation to this tree.

9. However, if I am wrong in these findings [9] and [10], as a matter of discretion the discussion and observations on site did not indicate any exceptional circumstances that would lead the Court to deviate from the Tree Dispute Principle published in Barker v Kryiakides [2007] NSWLEC 292 which states that:

“[20]… For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

10. As discussed in Hinde v Anderson [2009] NSWLEC 1148, the applicant can make a fresh application if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.

Risk of property damage and injury

11. The frequency of twigs and leaves falling into the property is moderate. The frequency of larger limbs falling is low. Furthermore, the likelihood of leaves and twigs and larger limbs falling while someone is present is lower, and the risk of injury lower still. In similar circumstances the Court has regarded the risk of injury to be so low as to not warrant orders for interfering with the trees (for instance: Grossman v Amaro [2012] NSWLEC 1154 at [8] and [11]; Lang v Huggett [2012] NSWLEC 1110 at [15]; MacPhail v Ware [2012] NSWLEC 1230 at [51]). The Respondent, Mr Amos, expressed an intent at the hearing to undertake regular monitoring of the condition of the tree and should circumstances change will take necessary and prompt action to ensure safety of people and property.

Findings

12. Fallen leaves and debris are not damage. A reasonable level of maintenance would prevent build-up of leaves and debris on the lawn and in the gutters.

13. The risk of injury from falling leaves and twigs is so low that it does not warrant orders from the Court to interfere with this tree.

14. As a result of the above, the application is dismissed.

15. The Orders of the Court are:

1. The application to remove the tree is dismissed.

P Nichols

Acting Commissioner of the Court

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