Kentish v Maurer
[2015] NSWLEC 1393
•23 September 2015
Land and Environment Court
New South Wales
Medium Neutral Citation: Kentish v Maurer & anor [2015] NSWLEC 1393 Hearing dates: 23 September 2015 Date of orders: 23 September 2015 Decision date: 23 September 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 18.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; debris; orders for tree pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Freeman v Dillon [2012] NSWLEC 1057Category: Principal judgment Parties: Paul Kentish (Applicant)
Kasey Maurer (First Respondent)
Glenn Davis (Second Respondent)Representation: Paul Kentish, litigant in person (Applicant)
Kasey Maurer and Glenn Davis, litigants in person (Respondents)
File Number(s): 20602 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 Kentish (‘the applicant’) has applied to the Land and Environment Court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the removal of two trees within a neighbouring property, on the grounds that they may cause damage or injury, and because they drop debris such as leaves and twigs onto his property.
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In his application Mr Kentish sought the removal of one of these trees also for the reason that it obstructs views from his dwelling, under Part 2A of the Trees Act. When I explained that Part 2A only applies to trees that form a hedge, and he did not think that the neighbouring trees formed a hedge, he did not wish to press that part of the application.
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Mr Kentish provided photographs to demonstrate that the two trees were not present when his dwelling was constructed in 1984.
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Ms Maurer and Mr Davis (‘the respondents’) did not plant the trees, which were already established when they purchased their property five years ago. They have offered to prune the trees but do not wish to remove them.
Jurisdictional framework
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Before making any orders I must be satisfied, for each tree, that it “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” (s 10(2) of the Trees Act).
Have the trees caused, are they causing, or are they likely in the near future to cause, damage to the applicant’s property? Or are they likely to cause injury?
Applicant’s submissions
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Mr Kentish submits that the trees shed a significant amount of debris: leaves, twigs, and small and large branches. He pointed out holes in his roof guttering near the trees. While he concedes that the state of the gutters is partly due to their age and weathering, he argues that leaf material sitting in the gutters has at least contributed to their condition. He says although most branches that have fallen are dead, one live branch fell some years ago, before the respondents purchased their property, and damaged roof tiles. No evidence of this was adduced.
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Mr Kentish says leaves and twigs from both trees blow over his roof, especially during southerly winds, blocking gutters at the front of his house and a drain in front of his garage. He says blocked gutters caused water to leak through his roof, damaging plaster inside his dwelling which he had to repair, and causing water damage to magazines. No evidence of this was adduced. He says blocked drains at the front of his garage caused water to flow into the garage, where a bookcase was damaged, and water to flow around and beneath his dwelling, causing foundation movement. This in turn, he says, resulted in cracking of a cornice internally, for which he has a photo.
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Mr Kentish submits that leaves and twigs that fall onto his property, the pathway to his backyard, and a rear porch, create a trip hazard, which is likely to cause injury.
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Mr Kentish argues that level of maintenance required to pick up debris from the trees is extreme and is not reasonable. He pointed to leaves in his garage, which he says enter whenever he drives his car in, and argues that he cannot clean up such an amount of debris.
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Mr Kentish submits that the trees pose a fire risk to his property due to their proximity to his dwelling. He pointed out that for a period these properties were within a 10/50 vegetation clearing entitlement area, as determined by the NSW Rural Fire Service (RFS). He argued that this proves the RFS had determined this to be an area of heightened bushfire risk.
Respondents’ submissions
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Ms Maurer and Mr Davis say that, although they did not plant the trees, they appreciate the native birds they attract to the area. They say the trees do not drop excessive debris and say that picking up leaves and twigs is not an onerous task. Mr Davis said he had not picked up any leaves for three weeks and pointed out that there were not many leaves now lying on their property. He pointed to an area of Mr Kentish's property that he says appears to receive little maintenance, and suggested there were not many leaves lying there.
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With regard to the risk of bushfire, Mr Davis pointed out that the RFS had removed the 10/50 rule from this area, indicating that it was no longer considered a zone of greater fire risk. He argues that there have been fires in the area and that these trees, or others nearby, had not burned.
Findings
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I find that the tree principle established in Barker v Kyriakides [2007] NSWLEC 292 applies here: for those who enjoy the benefits of trees in urban environments, some level of external property maintenance is to be expected. These trees provide benefits – they improve local amenity and the local environment. There is nothing in this matter indicating the level of maintenance to be extreme or unreasonable. The apparent maintenance requirements are no more onerous than many other cases where this principle has been applied by the Court, and indeed are considerably less than several matters where I have applied this principle.
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Mr Kentish argues that the facts of the situation in Barker were different, that the Commissioners there described the trees as being well clear of the dwelling. In contrast, he says, these two trees are close to and overhang his dwelling. While this may be true, the basis for the principle in Barker was not reliant on the precise extent of maintenance in that one matter. The decision established the principle, rather than setting the height of the bar at which it applied.
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I accept the respondents’ submission here that there is no unreasonable level of maintenance resulting from these trees. Therefore, even if damage has occurred or may occur as a direct result of leaves sitting in gutters or drains, I would not be making any orders on this basis. There is no damage or risk of damage arising from fallen debris that requires Court orders for interfering with the trees. For the same reason, any risk of tripping over small branches can be addressed through reasonable maintenance. I say ‘small branches’ because, although Mr Kentish described large branches falling from the trees, branches I saw on the ground, or as pointed out by Mr Kentish on the respondents’ garage roof, were mostly less than 10 mm in diameter with only a few up to 50 mm in diameter.
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Regarding the risk of bushfire, I find that this is not a reason to remove these trees. The 10/50 rule gives tree owners within designated areas the right to remove certain vegetation (for example, trees within 10 metres of a dwelling) that would otherwise require a permit from the local council for removing. Even during the period that the 10/50 rule applied to this area, it was not a requirement to remove this vegetation. I am also not satisfied that the two trees pose a significant fire risk to Mr Kentish's property, but even if I take his contention at its highest, this may not give the Court jurisdiction to make orders. Fire might be considered as a cause of damage separately from the trees. This was discussed by Fakes C in Freeman v Dillon [2012] NSWLEC 1057, particularly at paragraph 86.
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I observed during the hearing that branches from Tree 1, an Ironbark, are close to Mr Kentish’s rooftop antenna, and in my view there is a real risk that they might damage the antenna in the near future. Therefore I will make orders for the tree to be pruned for clearance from the antenna. At the same time, any deadwood greater than 25 mm in diameter should be removed to reduce the risk of injury from falling limbs. Repeating this pruning every two years will maintain the lower level of risk. Tree 2, a Queensland Brushbox, is smaller, is clear of the dwelling and does not hold large deadwood. It does not require any interference to protect Mr Kentish’s property.
Orders
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Therefore the orders of the Court are:
The application is upheld.
Within 30 days of the date of these orders, and then every two years within two weeks of the anniversary of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF Level 3), with all appropriate insurances, to carry out the following pruning works on Tree 1 (the Ironbark):
removal of all deadwood 25 mm diameter and greater from all parts of the tree over Mr Kentish’s property and within 2 metres of the common boundary;
removal of branches within 2 metres of Mr Kentish’s rooftop antenna; and
reduction or removal of any other branches that the arborist identifies as hazardous while carrying out the works.
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 September 2015
Kentish v Maurer [2015] NSWLEC 1393
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