Moricca v Faul

[2007] NSWLEC 694

Land and Environment Court

of New South Wales

CITATION:

Moricca v Faul [2007] NSWLEC 694

PARTIES:

APPLICANT
Kathy Moricca

RESPONDENT
Joanne Faul

FILE NUMBER(S):

20718 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Pruning of trees, damages, costs

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

15/10/2007

EX TEMPORE JUDGMENT DATE:

15 October 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mrs K. Moricca, litigant in person

RESPONDENT
Mrs J. Faul, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

15 October 2007

20718 of 2007 Kathy Moricca v Joanne Faul

JUDGMENT

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

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 at

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning two trees (the trees) located on a property at 7 Sikes Place, Ambarvale (the property). The property is owned by Mrs Joanne Faul.

2 The trees are a Tallowood (Eucalyptus microcorys) and another that has been identified as a White gum (Eucalyptus dalrympleana) in a report provided by the applicant.

3 The application has been made by Mrs Kathy Moricca, owner of 52 Clennam Avenue, Ambarvale, situated on the northern side of the trees.

4 The application seeks orders from the Court that the trees be removed.

5 The relevant provisions of s 10(2) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree.

6 These tests are:

Has the tree caused damage to the applicant's property?
Is the tree now causing damage to the applicant's property?
Is the tree likely in the near future to cause damage to the applicant's property?
Is the tree likely to cause injury to any person?

7 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

8 I have examined the trees and have reached the following conclusions with respect to them. The trees are semi mature specimens, each approximately 12 m in height with canopy spread of approximately 6 m and trunk diameter of approximately 0.3 m at 1.2 m above ground. The trees have well tapered trunks and branches, with light canopies. The trees appear to be healthy, with sound branch attachment and no evidence of trunk or root weakness. The White Gum has bushy growth arising from previous pruning on the northern side. A small portion of the canopy of each tree overhangs 52 Clennam Avenue by approximately one metre. That overhang is above the roof of a pergola which extends from the house almost to the rear boundary. Mrs Faul advised that she planted the trees 20 years ago. The trees appear to have grown slowly in the past, and I consider that they are unlikely to increase in size rapidly in the future.

9 I observed photographs on the file showing leaves and twigs on the pergola roof. I looked on the Pergola roof and saw some leaves and twigs in the gutters and on the roof. I also saw one dent in the metal roofing and a broken section of a narrow clear roof panel.

10 I was not satisfied that both or either of those damages, which I was informed had occurred at different times, were caused by branches from the trees. No branch that may have caused the damage was provided, and I did not see any stub on the tree from which a fallen branch may have come.

11 I am satisfied that leaves have and will fall from the trees and these will require cleaning up and may cause damage due to overflow of gutters and possible roof flooding.

12 I then turn to consider if the court should order an intervention with the trees.

13 Consistent with tree dispute principle set out by the Court in Barker v Kyriakides, I am satisfied that it is not appropriate to order the removal or significant interference with the trees on the basis of their dropping of leaves, twigs and the like on the applicant’s property.

14 As discussed in the principle, for people who live in treed urban environments there is some necessary degree of housekeeping required in order to appreciate and retain the benefits of having trees in that urban environment.

15 I am therefore not satisfied that the dropping of leaves and the like from the trees provides any basis for ordering removal or intervention with these trees.

16 It is expected however that the owner of the trees will carry out reasonable tree management, and that the applicant will carry out reasonable home and yard maintenance.

17 In this regard, the parties have agreed to management of the trees in the following terms. Mrs Faul has stated that she wishes to retain the trees at the present time. Mrs Moricca has stated that she no longer wishes the trees to be removed, but does want some on-going management. The parties have agreed that reasonable management would be pruning of the overhang beyond the boundary by approximately 30 percent within the next two years, and future pruning of the overhang by approximately 30 percent at periods of not less than 5 years thereafter. The parties agreed that pruning of the overhang was to be at Mrs Moricca’s cost. The parties also agreed that Mrs Faul would arrange for suitable pruning over her property at the same time, to retain the balance of the trees, and that pruning would be at her own cost. The parties would, if required by the Local Council, make application to the Local Council for pruning of the trees.

18 In relation to the cost of damage to the roof, Mrs Faul offered to pay $150 towards those costs, and this offer was accepted by Mrs Moricca as full settlement.

19 In relation to future communication between the parties, they agreed that should they need to discuss any matter, they would say hello and sort it out over the back fence, or have a cup of coffee together and discuss it.

20 As a consequence, the application is dismissed noting the agreement of the parties.

___________________

P. Thyer
Acting Commissioner of the Court
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