Patel v Brannigan
[2017] NSWLEC 1739
•19 December 2017
Land and Environment Court
New South Wales
Medium Neutral Citation: Patel v Brannigan [2017] NSWLEC 1739 Hearing dates: 19 December 2017 Date of orders: 19 December 2017 Decision date: 19 December 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; risk of injury; routine maintenance; application is dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Hardik Patel (Applicant)
Gail Brannigan (Respondent)Representation: Hardik Patel, Litigant in Person (Applicant)
Gail Brannigan, Litigant in Person (Respondent)
File Number(s): 293698 of 2017
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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A mature Forest Red Gum (Eucalyptus tereticornis) (‘the tree’) grows near the rear corner of Ms Brannigan’s Baulkham Hills property. The tree was there when she came to the property 22 years ago. It is not so tall, less than 20 metres, and its broad crown spreads over her back garden, a neighbouring garden to her north and Mr Patel’s property to the rear of hers. Approximately a third of the crown overhangs Mr Patel’s property, although he says at least a half, mostly over his pool, which was there when he came to the property in 2011.
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Mr Patel (‘the applicant’) wants the tree removed for the safety of his children and to prevent damage to his property. He replaced his pool cover a few years ago due to damage from branches, and it has holes in it now where dead sticks have fallen from the tree. He is concerned that leaves and debris discolour the water and stain the pool. He says the amount of debris he must deal with from this tree is unreasonable.
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Ms Brannigan (‘the respondent’) says that the tree has never been an issue for her. Her children and grandchildren use the area beneath the tree. The tree is attractive, provides shade, is native and attracts birds. She had the tree pruned by an arborist in 2015.
The application
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Mr Patel has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking an order for Ms Brannigan to remove the tree. If I am satisfied that the tree has caused, is causing, or is likely to cause damage to the applicant’s property, or is likely to injure anyone (s 10(2) of the Trees Act) I have the jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12.
Findings
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Mr Patel showed me a few holes in the plastic pool cover where small dead sticks from the tree poked through. I accept that the tree has caused damage to his property. Before determining any orders, I consider the following matters relevant.
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This mature tree provides public amenity and contributes to the landscape value of Ms Brannigan’s property, as well as those surrounding her. A native species, it contributes to biodiversity and provides habitat for native fauna. It shades and cools Ms Brannigan’s property. Being to the west of Mr Patel’s dwelling, it provides him with shade and cooling during hot summer afternoons.
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The tree does not have any major defects visible from the ground. There is only small deadwood present in the crown, so minor that, if the falling of dead branches was the only problem, I would not make any orders for their removal. Mr Patel showed me a small stack of fallen dead branches he has kept, none of which appeared much greater than 50 mm in diameter.
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I observed four pruning cuts facing Mr Patel’s property. These cuts, each about 150 mm in diameter, all face his property and are on main branches that extend above his property. This indicates to me that when Ms Brannigan had the tree pruned, several branches extending above Mr Patel’s property, including his pool, were removed.
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The plastic cover over Mr Patel’s pool appears to be of relatively low quality, or is at least much thinner than others I have seen. It is three years old and has only a few small holes in it. I accept Mr Patel’s contention that these holes may let seed capsules and other debris into the pool. Leaves can also fall into the water at the edge of the cover, where there are some gaps. I accept that leaves, seed capsules, flowers and other debris may discolour the water and stain the pool. The extent of such damage seems relatively minor, so that, when I compare this with the tree’s relative value and its benefits, I would not make any orders on that basis. Furthermore, the principle set down by the Commissioners in Barker v Kyriakides [2007] NSWLEC 292 would also apply here, including, at paragraph 20:
…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.
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There are countless pools in the suburbs of Sydney, many close to and beneath trees that shed leaves, flowers, fruit and small dead branches. Cleaning of such debris from these pools is routine maintenance for many people. The neighbouring tree was there when Mr Patel came to his property, so the issue was certainly foreseeable for him. There is nothing here that would persuade me to deviate from the principle stated above.
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Based on the fallen dead branches shown to me, and the size of dead branches remaining in the tree, I am not satisfied that falling branches are likely to cause injury.
Orders
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As a result of the foregoing, the Court orders that:
The application is dismissed.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 21 December 2017
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