Darr v Keating

[2019] NSWLEC 1196

Land and Environment Court

New South Wales

Medium Neutral Citation:	Darr v Keating [2019] NSWLEC 1196
Hearing dates:	5 April 2019; telephone mention on 3 May 2019
Date of orders:	03 May 2019
Decision date:	03 May 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   Within 90 days of the date of these orders, Mr Keating is to engage a fencing contractor to repair the two displaced fencing panels on the common boundary so that their alignment is consistent with rest of the fence and to provide at least 50 mm clearance to the base of the stem of the western tree. (2)   On reasonable notice from Mr Keating, the applicant is to allow access to his property for the works in (1) to be completed during reasonable hours of the day. (3)   If the western tree is removed within 90 days of the date of these orders, order (1) lapses.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage or injury – damage to fence – debris – fire – termites – orders for fence repair – owner of the land includes the occupier of the land
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Dooley & anor v Nevell [2007] NSWLEC 715 Freeman v Dillon [2012] NSWLEC 1057
Category:	Principal judgment
Parties:	Lindsay Dale Darr (Applicant) Steven Keating (Respondent)
Representation:	L Darr, litigant in person (Applicant) S Keating, litigant in person (Respondent)
File Number(s):	2019/16230
Publication restriction:	No

Judgment

The application

1. Mr Lindsay Darr (‘the applicant’) applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for the removal of two trees from a property adjacent to the Dungog property where he lives. His application names Mr Steven Keating (‘the respondent’) as the owner of the neighbouring property.

2. The Court granted leave for Mr Darr’s application to be amended to correct the spelling of the respondent’s name (Steven not Stephen) and to remove that part of the application made pursuant to s 14B of the Trees Act (hedges).

3. The hearing took place onsite this morning, allowing me to view the trees and relevant issues. The trees are two weeping lilly pillies (Syzygium floribundum) planted in Mr Keating’s front garden adjacent to the steel panel fence along the common boundary. The tree nearest Mr Keating’s dwelling (‘the western tree’) is approximately 3 metres from his dwelling. Both trees are approximately 5 metres from Mr Darr’s dwelling. The trees are several decades old and appear to be healthy. Their stems appear structurally sound. Limbs have been lopped in their crowns, resulting in some branches of epicormic origin.

4. Mr Darr wants the trees removed for several reasons:

• The trees drop leaves and debris onto Mr Darr’s roof and guttering, which can block the guttering. Leaves and debris on the ground require regular clean up. Leaves that fall and settle near his dwelling are a fire risk.

• Branches sometimes fall from the trees. Mr Darr’s grandchildren are often at the property.

• Termites from the trees have infested Mr Darr’s house.

• The western tree is pushing against the boundary fence, displacing two steel panels.

5. Mr Keating says the trees have grown here for many years before he came to the property four years ago. Leaves and debris also fall on his side of the boundary. The trees were pruned in 2016.

Findings

6. Leaves and debris have not caused damage to Mr Darr’s property. If leaves that fall into his gutters contribute to corrosion, or block his gutters, that is something that could be avoided with routine maintenance, as per the principle set out by the Court in Barker v Kyriakides [2007] NSWLEC 292 at [20].

7. Any risk of fire resulting from fallen debris can similarly be dealt with by maintenance. Regardless, damage caused by a fire spreading from burning debris would not be damage caused by the trees: Freeman v Dillon [2012] NSWLEC 1057 at [86].

8. Mr Darr has not shown that termites infested the trees, nor that they have then infested his dwelling. Damage by termites would not equate to damage caused by the trees, so I could not make any orders on this basis: Dooley & anor v Nevell [2007] NSWLEC 715 at [18]–[23].

9. Due to previous pruning, the trees’ branches extend only a short distance above Mr Darr’s property. There is no significant risk of limbs falling and causing damage or injury.

10. The fence displacement is caused by the growth of the root buttress of the western tree. Minor though it is, this is damage caused by the tree and the Court can make orders to remedy the damage and to prevent further damage. As the tree grows, further damage is likely unless the fence is adjusted to provide some clearance at the base of the tree. The fence does not restrain animals in either property so some small gap between the fence and the base of the tree should be acceptable.

Orders to be made against Mr Keating

11. As a result of the above, I determined to make orders for Mr Keating to repair the fence. After adjourning for a short time to write a brief judgment, I returned to the properties and read out the judgment and orders to Mr Darr and Mr Keating. This would normally finalise the matter. As I returned to my car, Mr Keating said to me words to the effect of: “I’m not bothered, I don’t even own the property.”

12. In applications made to the Court under the Trees Act, the respondent is usually the owner of the land on which the tree is principally situated. Section 7 of the Trees Act allows a person to apply to the Court for orders, but does not identify the person against whom those orders might be made, only that the tree must be on land adjoining the applicant’s:

7 Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

13. The Trees Act refers to the owner of the land on which the tree is situated at s 8 (with my emphasis):

8 Notice of application for order to be given to owners of affected land

(1) An applicant for an order under this Part must give at least 21 days notice of the lodging of the application and the terms of any order sought to:

(a) the owner of the land on which the tree is situated, and

(b) …

(c) …

(2) …

(3) …

14. The Trees Act also refers to the owner of the land at s 10 (emphasis added):

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) …

(c) …

(2) …

15. Definitions provided in s 3(1) of the Trees Act include:

3 Definitions

(1) In this Act:

…

owner of land includes the occupier of the land.

…

16. Mr Keating stated at the hearing that he has lived at the property for four years. I am satisfied I can make orders requiring Mr Keating to carry out works in accordance with the Court’s jurisdiction to make orders set out at s 9. Mr Keating implied that he lives with the property’s owner, who is aware of the situation and proceedings. Tree removal is not being ordered, and the orders include only minor works to the fence, so I see no need to take further action to join the property owner as a respondent.

17. Should Mr Keating decide to remove the western tree, subject to any council permission that would require, the orders will be redundant.

Orders

18. The orders sought by the applicant are not granted. The Court makes the following orders.

1. Within 90 days of the date of these orders, Mr Keating is to engage a fencing contractor to repair the two displaced fencing panels on the common boundary so that their alignment is consistent with rest of the fence and to provide at least 50 mm clearance to the base of the stem of the western tree.

2. On reasonable notice from Mr Keating, the applicant is to allow access to his property for the works in (1) to be completed during reasonable hours of the day.

3. If the western tree is removed within 90 days of the date of these orders, order (1) lapses.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 03 May 2019