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…