McCann v Zheng

[2018] NSWLEC 1239

Land and Environment Court

New South Wales

Medium Neutral Citation:	McCann v Zheng [2018] NSWLEC 1239
Hearing dates:	15 May 2018
Date of orders:	15 May 2018
Decision date:	15 May 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – whether the tree has caused damage – leaves blocking gutters – reasonable maintenance – making a further application
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riordan & anor [2011] NSWLEC 1009
Category:	Principal judgment
Parties:	Ashley McCann (First Applicant) Megan Chivers-McCann (Second Applicant) Eddy Shengen Zheng (First Respondent) Betty Zheng (Second Respondent)
Representation:	M Chivers-McCann, litigant in person (Applicants) E and B Zheng, litigants in person (Respondents)
File Number(s):	46371 of 2018
Publication restriction:	No

EXTEMPORE Judgment

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

Background

1. Ashley McCann and Megan Chivers-McCann (‘the applicants’) have applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for their neighbours Eddy and Betty Zheng (‘the respondents’) to remove a Liquidamber (Liquidambar styraciflua) (‘the tree’) in their garden. In the alternative, they want the Zhengs to have the tree professionally maintained with regular pruning and installation of a root barrier to prevent roots growing onto their land.

2. The applicants say the tree causes the following problems:

• Roots damaged concrete in their garden

• Roots damaged their terracotta sewer pipe

• Roots will be attracted by their stormwater dispersion pit and cause further damage

• Leaves block their gutters despite installation of gutter-guard, causing gutters to overflow and flooding parts of their property

• Their gutters are high and difficult to reach

• Considering the amount of leaves and difficulty reaching the gutters, the maintenance required is not reasonable.

3. The respondents have pruned the tree. They say the roots shown in a photograph in the application are not large enough to damage a concrete slab. They have been given no evidence that their tree’s roots have caused damage. Their tenant cleans up leaves once at the end of autumn, and they think the applicants could do the same.

Framework of the Trees Act

4. If I am satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property (s 10(2) of the Trees Act), I have jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12.

Findings

5. The respondents received permission from Blacktown Council to prune up to 20% of the tree’s crown. Extensive pruning has been carried out, although I am more inclined to call it ‘lopping’ as it does not comply with AS4373 Pruning of amenity trees. The canopy is now approximately five metres back from the common boundary between the applicants’ and respondents’ properties.

6. There is no evidence in the material provided by the applicants showing that roots from the tree damaged their sewer. The sewer pipes were made of terracotta prior to renovation of the garden. Terracotta pipes deteriorate over time, often cracking. The plumber’s email included in the application does not mention tree roots. The sewer was rerouted, presumably with PVC, which is less likely to be damaged by tree roots.

7. There is no evidence that roots damaged concrete or any other parts of the applicants’ property. This is not to refute the applicants’ allegation, but I cannot make any orders unless I am satisfied of this on the evidence presented.

8. I accept that leaf fall in autumn is abundant, and some leaves might fall into the applicants’ gutters. There is no sign of damage to the gutters. Damage caused by flooding, should the gutters be blocked with leaves, is not damage caused by the tree. However, taking the applicants’ claim at its highest, if I were to accept that blocked gutters are likely to cause damage, and any resulting damage can be attributed to the tree, I would still not make any orders on these grounds. There is nothing about the situation here that is beyond the scope of many other matters decided by the Court where the same issue was addressed, and where the Court has consistently applied the principle established at [20] in Barker v Kyriakides [2007] NSWLEC 292:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

9. I see no reason to deviate from this principle here.

Making a further application

10. The applicants raised the possibility of gathering further evidence for making another application. Once the Court has made a decision on a tree application, an applicant can make a fresh application only if circumstances have changed since the Court determined the earlier application (Hinde v Anderson & anor [2009] NSWLEC 1148). For instance, if a tree caused further damage, this would allow a fresh application.

11. A fresh application is not possible if circumstances have not changed, even if further evidence has been gathered, but that evidence could have been available at the time of the original hearing (McCallum v Riordan & anor [2011] NSWLEC 1009).

Orders

12. As a result of the foregoing, the application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 21 May 2018