Endicott v Esther

[2015] NSWLEC 1290

Land and Environment Court

New South Wales

Medium Neutral Citation:	Endicott v Esther [2015] NSWLEC 1290
Hearing dates:	28 July 2015
Date of orders:	28 July 2015
Decision date:	28 July 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; applicant can take practical measures to deal with issues; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292
Category:	Principal judgment
Parties:	Timothy Endicott (Applicant) Marielle Esther (Respondent)
Representation:	Timothy Endicott, litigant in person (Applicant) Marielle Esther, litigant in person (Respondent)
File Number(s):	20353 of 2015

Judgment

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

Background

1. Mr Tim Endicott (‘the applicant’) lives in his Croydon Park dwelling, next door to Mrs Marielle Esther (‘the respondent’). Mrs Esther has small trees and shrubs in a garden bed along the common boundary between the properties: five small trees including Buddleja and, nearer the front of the property, five Camellia shrubs. Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) Mr Endicott has applied to the Land and Environment Court seeking orders for Mrs Esther to prune the ten trees and shrubs, to remove all branches that overhang the boundary, twice yearly. He is concerned that branches will scratch vehicles in his driveway and injure people on the driveway, and that fallen leaves cause staining of his driveway.

2. With the Court's approval, Mr Endicott had earlier amended his application to include the five Camellias, on the grounds that these trees are obstructing views and may cause injury. Mrs Esther prepared responses to all issues raised by Mr Endicott. At the onsite hearing Mr Endicott said he did not wish to press his application under Part 2A of the Trees Act, and now only applies for orders pursuant to Part 2. He also withdrew at the hearing two orders that he sought, one for Mrs Esther to maintain the Camellias at a height of no more than 2.5 metres, and the other for recovery of costs for a leaf blower and some driveway paint.

Jurisdiction

3. Before making orders the Court must be satisfied that the trees concerned have caused, are causing, or are likely in the near future to cause, damage to Mr Endicott's property, or are likely to cause injury to any person.

The trees

4. Trees 1-5, including the Buddleja, are approximately 3 metres tall. Mr Endicott says they were 4.5 m tall prior to pruning. The Camellias, Trees 6-10, are 1.5 metres tall. Photos show that some branches of Trees 1-5 were overhanging the boundary prior to pruning carried out by Mrs Esther earlier this year.

Applicant’s submissions

5. Mr Endicott does not claim that vehicles in his driveway have been damaged, but submits that this is likely to occur. He also submits that people’s faces might be scratched as they walk along the driveway. He contends that he has to duck beneath branches when he walks to and from his car.

6. Mr Endicott pointed out the stained areas of driveway near the Buddleja. He says he cannot remove stains and must paint over them.

Respondent’s submissions

7. Mrs Esther submits that she prunes the trees twice a year to remove overhanging branches, but lately Mr Endicott has made this difficult by not allowing her access.

8. Mrs Esther says leaves from other trees can blow onto Mr Endicott’s driveway also.

Council permit

9. Mr Joe Lilley, Tree Management Officer with Burwood Council, attended the hearing. He stated that, if the trees form a hedge of a single species, as Trees 6-10 do, Mr Endicott can prune any overhanging branches, as such trees can be maintained at a predetermined height and width without a permit. Trees that are less than 4 metres tall, or branches that obstruct pedestrian and vehicular access, can also be pruned without a permit. Even if a permit were required to prune any of the trees, Mr Endicott could apply for a permit either with the consent of Mrs Esther, or by demonstrating that he had tried unsuccessfully to obtain her consent. I therefore understand that Mr Endicott could take reasonable steps to address any problem branches himself.

Findings

10. At the time of the hearing there were no branches overhanging Mr Endicott’s side of the common boundary. There is no evidence that vehicles have been scratched. I find it unlikely that branches will scratch vehicles in the near future, or cause injury. Even if I am wrong on this, as I have described above there are practical steps that Mr Endicott can take to remedy such a problem should it develop. Therefore I see no reason for the Court to make orders to deal with this issue.

11. Regarding staining of the driveway, I am not satisfied that this constitutes damage to the extent that Court orders are required. However, even if I accept that Mr Endicott’s property is damaged, I see no reason to stray from the Court’s principle set out in Barker v Kyriakides [2007] NSWLEC 292. In essence, that principle states that, for those who live near trees in the urban environment, some reasonable level of maintenance is expected. Therefore, the dropping of leaves by trees will not ordinarily be a reason for the Court to make any orders.

Conclusion

12. As a consequence of the above, the application will be dismissed and no orders made. The Court notes Mrs Esther’s undertaking to prune the trees twice every year if allowed access to do so by Mr Endicott.

Orders

1. The application is dismissed.

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D Galwey

Acting Commissioner of the Court

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