Fogg v Waters
[2007] NSWLEC 358
•14 June 2007
Land and Environment Court
of New South Wales
CITATION: Fogg v Waters [2007] NSWLEC 358 PARTIES: APPLICANTS
RESPONDENT
Lois & Ken Fogg
Eryn WatersFILE NUMBER(S): of 2007 CORAM: Moore C - Thyer AC KEY ISSUES: Trees (Neighbours) - Neighbour Application :-
Minor maintenanceLEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Barker v Kyriakides (2007) NSWLEC 292 DATES OF HEARING: 14 June 2007 EX TEMPORE JUDGMENT DATE: 14 June 2007 LEGAL REPRESENTATIVES: APPLICANTS
In personRESPONDENT
Ms L Smith, property manager
Raine & Horne - Newcastle
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESMOORE C
THYER AC14 June 2007
07/20187 Lois & Ken Fogg v Eryn Waters
JUDGMENT
The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the orders are available on the Court’s web site atThis decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
1. COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act2006 (the Act).
2. The applicants, Mr and Mrs Fogg, are residents of 28 Clinton Avenue, Adamstown Heights. The tree which is the subject of the application is a Brush Box (Lophostemon confertus) (the tree). The tree is located on 26 Clinton Ave, the property immediately to the east and slightly down-slope of the Fogg’s property.
3. The application seeks either the removal of the tree, or an order that the tree be pruned back to the boundary of the applicant’s property – either to be at Ms Water’s cost.
4. Mr and Mrs Fogg say that the matters which arise under section 10(2)(a) of the Act relate to past, present and continuing damage (in the near future) to their property. They say the test is satisfied as a consequence of the tree dropping its leaves, fruit and small deadwood into their property. They say that the burden that this places on them to clean up large amounts of this material from their grounds, pool and garage gutters is unreasonable - particularly in light of the fact that Mr Fogg is vision impaired. They say that the cost of getting somebody in to undertake this work on their behalf is a financial burden which they should not be required to bear.
5. In addition, they have expressed concern that branches of the tree which rub on the roof of their garage have moved tiles and may, in the future, do so again.
6. Mr Fogg gave evidence of having to adjust the tiles on the roof as a consequence of them having been moved by branches of the tree pressing against the roof of the garage.
7. Mr and Mrs Fogg have a swimming pool located in the back yard in the vicinity of the tree. The pool was built at a time when the tree was already growing on Ms Waters property but was much smaller than it is presently.
8. In their application, Mr and Mrs Fogg have expressed a concern that the roots of the tree may, at sometime in the future, cause damage to their pool.
9. We have carefully examined the attachment of the various branches to each of the three leaders forming the trunks of the tree and the attachment of those trunks at their base. There are no signs of any inadequacy of a structural nature in any of those elements of the tree.
10. There are, therefore, two separate elements which we are required to test pursuant to section 10(2)(a) of the Act before any question of intervention by the Court can be considered.
11. The first relates to the tree dropping leaves, fruit and small deadwood into the Foggs’ property and the second relates to the question of possible or actual damage by the tree to either the garage or the swimming pool.
12. With respect to the first issue, the Court has considered the general question of maintenance responsibilities involving neighbours’ trees in an urban environment. It did so in the case of Barker v Kyriakides (2007) NSWLEC 292. In that case, the Court published a tree dispute principle which held, in essence, that for those persons who live in urban areas to obtain the environmental and aesthetic benefits of trees in such areas, there is a concomitant responsibility to accept reasonable levels and requirements of maintenance arising from those trees. Ordinarily, the Court will not regard the impact of falling leaves, fruit and small amounts of deadwood as damage for the purposes of section 10(2)(a) of the Act. Thus, ordinarily, the Court will not order any intervention with the tree under such circumstances.
13. In this regard, although Mr and Mrs Fogg raise question of their financial capacity to respond to such detritus, that is not a matter which we are permitted to take into account on this point. Questions of financial capacity can only arise if the underlying threshold issue has been satisfied and questions of how the Court should exercise its discretion might arise.
14. In this case, with respect to the falling of leaves, fruit and small deadwood material, we are satisfied that the principle enunciated in Barker should be applied. As a consequence, there is no basis for us to order any intervention with the tree for that reason.
15. With respect to the issue of damage to the pool and its surrounds, we are satisfied that there is no evidence of structural damage or likelihood, in the near future, of structural damage to the pool or its surrounds. Thus, this concern held by Mr and Mrs Fogg provides no basis for intervention as none of the tests under section 10(2)(a) of the Act have been satisfied.
16. With respect to the evidence which Mr Fogg has given concerning damage to the garage roof, we have carefully considered the structure of the tree and the branches which bend and touch or are likely to touch the garage roof.
17. We are satisfied that there is one substantial branch (with a diameter of about 12.5 cm at its point of attachment to its trunk) which is likely to have caused damage to Mr and Mrs Fogg’s garage roof and which is likely to lead to further damage of the nature of which Mr Fogg has given evidence.
18. We are satisfied that it would be appropriate to order the pruning of that branch in accordance with AS 4373 of 2007. We will require that that pruning be conducted by an AQF Level 3 arborist with appropriate insurances and that that pruning be at the expense of Ms Waters.
19. There is also one further small branch (that is approximately 30mm in diameter at its point of attachment) which is also touching the roof of the Fogg’s garage. An order will be made for its pruning.
20. We have been provided with some material on behalf of Ms Waters asking for time to carry out any actions with respect to the tree which we might order. That request has been made based on Ms Waters present financial circumstances.
21. However, the pruning of the tree which we propose to order is comparatively minor. We are satisfied that there is no need to permit a significant period of time within which that limited pruning should be undertaken. We therefore propose to order that that pruning would be undertaken within 28 days of the date of the orders of the Court.
Tim Moore
Commissioner of the Court
Acting Commissioner of the Court
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