McLeod v Bruce

[2010] NSWLEC 1322

Land and Environment Court

of New South Wales

CITATION:

McLeod & anor v Bruce [2010] NSWLEC 1322

PARTIES:

APPLICANTS
Mrs C McLeod
Mrs L Kemp

RESPONDENTS
Mr D Bruce
Mrs H Bruce

FILE NUMBER(S):

20555 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- damage to property, injury to persons, application dismissed

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

18/11/2010

 
DATE OF JUDGMENT: 

18 November 2010

EX TEMPORE JUDGMENT DATE:

18 November 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Stewart [agent]

RESPONDENT
Mrs L Kemp [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

18 November 2010

20555 of 2010 McLeod & anor v Bruce

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

1 COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Nambucca Heads against the owners of a tree growing on an adjoining property.

2 The applicants are seeking the removal of the tree as they contend that it has caused damage to the timber dividing fence, that roots are growing under a pathway and may cause damage to the path or the house and that leaves fill the guttering. The applicants contend that fallen leaves on a concrete path make the path slippery and that cleaning the gutters on a two-storey house is dangerous. Therefore the applicants submit that the tree also poses a risk of injury to people.

3 The applicants are also seeking the Court to order the replacement of the fence and the cleaning of the guttering of the house.

4 The respondents currently reside interstate and were represented by a friend, Mr Stewart. Both the applicants’ and the respondents’ properties are tenanted.

5 The submissions from both parties indicate that the leaves from the tree and the condition of the fence have been in dispute since 2001 when the applicants’ late mother purchased the property. According to the respondents, they gave the applicants permission to remove any overhanging branches that were causing them a problem. They state that these trees along the boundary were in existence when they purchased their property in 1993.

6 In 2004, the parties jointly replaced a number of fence posts along the boundary with the intent of eventually replacing the existing low timber fence with a 1.8m high fence.

7 The tree is dispute is a large mature Schefflera actinophylla (Umbrella Tree) growing close to the western boundary of the respondents’ property. The properties are bounded by a low timber paling fence. A concrete path runs beside the fence on the eastern side of the applicants’ property. To the south of the tree on the respondents’ property is an elevated parking area/ driveway supported by a timber sleeper retaining wall.

8 The tree is healthy and there is evidence of past pruning of the canopy closest to the applicants’ property. No part of the trunk of the tree is in contact with the fence. Some of the palings are slightly lifted as a result of the normal root flare at the base of a tree. There is no evidence of any cracking or lifting of the pathway or of the house.

9 The paling fence is in poor repair and several sections in proximity to the tree are leaning towards the applicants’ property. It is evident from the condition of the cross members and the failure of a number of posts that the fence it approaching the end of its useful life. It is also noted that a vertical section of the sleeper retaining wall that supports the respondents’ parking area has failed and is leaning against the fence as are branches from an unidentified shrub.

10 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned 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.

11 With respect to the fence, even if the tree has contributed to the damage, s 9 of the Act enables the Court to exercise discretion in the making of orders. I am not satisfied that the very minor contribution of the tree to the poor condition of the fence is sufficient to warrant the making of an order to interfere with the tree in any way. As previously stated, the main factors contributing to the state of the fence are its age, material and the physical impacts of the failed section of retaining wall and the growth of the unidentified shrub.

12 With respect to the possible future damage to the path and the house through the growth of roots, there is no evidence to indicate this is likely to occur in the ‘near future’. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination.

13 There was no evidence that the falling of leaves has caused either damage to property or injury to any person. If I am wrong about the leaves in the gutter, as a matter of discretion, the tree dispute principle published in Barker v Kyriakides [2007] NSWLEC 292 is relevant here. This principle states that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide.

14 In conclusion, there is insufficient evidence to justify the removal of the tree or for the making of orders for any contribution for the cleaning of gutters or for any additional contribution to the costs to replace the dividing fence.

15 As a result of this the Orders of the Court are:

1. The application is dismissed.

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