Britt v Doyle
[2015] NSWLEC 1355
•27 August 2015
Land and Environment Court
New South Wales
Medium Neutral Citation: Britt v Doyle [2015] NSWLEC 1355 Hearing dates: 27 August 2015 Date of orders: 27 August 2015 Decision date: 27 August 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 15.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; compensation; debris; orders for pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Wayne Britt (Applicant)
Michael Doyle (Respondent)Representation: Wayne Britt, litigant in person (Applicant)
Michael Doyle, litigant in person (Respondent)
File Number(s): 20411 of 2015
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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Mr Britt (‘the applicant’) has applied to the Court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the removal of a neighbouring tree and for compensation for damage he says was caused by the tree. Mr Doyle (‘the respondent’) owns the neighbouring property on which the tree grows. He says he doesn't mind if the tree remains or is removed, but if it is to be removed he says that Mr Britt should pay the cost of its removal.
The applicant’s position
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The tree is situated in Mr Doyle's back yard, close to the common boundary with Mr Britt's property. Mr Britt says falling branches have damaged his roof by causing dents in the corrugated iron. He says many leaves and twigs fall into his roof valleys and gutters, too many for him to clean out, and that this has caused water to leak inside his dwelling on at least one occasion. He has submitted a quote for $1,850 to replace a section of iron roofing on the 15-year-old extension to his dwelling.
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Mr Britt says falling limbs have damaged several flyscreens on his windows and a piece of lattice atop a section of the boundary fence. He seeks $25 for each fly screen but does not seek compensation for the lattice.
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Mr Britt says the tree drops excessive amounts of leaf litter and debris onto his property and onto the property further to his east, owned by Mr Hiles, who attended the hearing.
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Mr Britt says roots from the tree grow towards his property and will cause damage.
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Mr Britt says the tree is growing in a transpiration area on Mr Doyle’s property that is filled with coarse material he said was ‘chitter’, or coal waste, rather than soil, and so the tree is unstable and may fall.
The respondent’s position
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Mr Doyle suggested that the tree does not drop as much debris as claimed by Mr Britt. He says a branch could not have damaged the lattice as it would not fall in that way and there was a Paperbark tree in the way at that time, which would have prevented a branch hitting the lattice. He does not accept that his tree has caused damage.
Findings
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According to s 10(2)(a) of the Trees Act, before making any orders I need to be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property. According to s 9 I can make orders as I see fit to prevent damage; I am not required to make the orders sought by the applicant. I bring my own arboricultural expertise and experience to the matter, and was able to view the tree during the onsite hearing.
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The tree is a Swamp Mahogany (Eucalyptus robusta) less than 20 metres tall. It is approximately 4 metres from Mr Britt's dwelling. It appears to be healthy, typical for the species, with no major structural defects. It has some minor deadwood, as to be expected, and one small broken branch hanging in the canopy.
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The tree did not appear unstable and there were no signs that its root plate has shifted.
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There were no signs of damage to Mr Britt’s property caused by tree roots. When asked to indicate any signs of damage from roots, or signs that damage from roots is likely in the near future, Mr Britt said there were none apart from the presence of roots in Mr Doyle’s property. The mere presence of roots is not sufficient cause for interfering with a tree.
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Regarding Mr Britt’s flyscreens and lattice, there is insufficient evidence to satisfy me that any damage was caused by branches of the tree. Small tears could be seen on three flyscreens and one piece of pine was missing from a section of lattice, but this could also be due to ageing, weather, animals or other causes. However even if damage was caused by tree branches, it is so minor that I would not make any orders for this element of Mr Britt’s application.
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Regarding the roof, there were no signs of significant damage to the roofing iron. Minor dents in the roof may be present but do not affect its function. Debris falling on the roof may block gutters, but this is an issue that was addressed by the principle in Barker v Kyriakides [2007] NSWLEC 292, which has been consistently applied by the Court since that judgment. The level of maintenance required here, to clean up leaves and twigs, does not appear excessive and is certainly no greater than that in many other matters in which this same principle has been applied. In this case, the leaves and twigs dropped by the tree are not a reason to order any interference with the tree.
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Dead branches up to 50 or 60 millimetres in diameter, along with twigs and leaves, could be seen on the roof at the onsite hearing. I accept that deadwood of this size or greater may develop and fall onto the roof. Larger pieces of deadwood may cause damage to the roof. Therefore orders will be made for pruning at regular intervals. There is no reason for the Court to order removal of the tree. Mr Doyle successfully obtained a permit from Lake Macquarie City Council for its removal once before and may apply again if he wishes to remove it.
Orders
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Therefore the Court orders:
The application is upheld.
Every two years during October, beginning October 2015, the respondent is to engage and pay for a suitably qualified arborist (minimum AQF Level 3), with all appropriate insurances, to prune the tree to remove all deadwood 30 mm diameter and greater from all parts of the tree overhanging Mr Britt’s property and within 2 metres of the common boundary.
The works in (2) are to be done in accordance with the guidelines of AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
Given reasonable notice, the applicant is to allow any access required for the pruning ordered above during reasonable hours of the day.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 28 August 2015
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