Richards v Sharp

[2022] NSWLEC 1164

Land and Environment Court

New South Wales

Medium Neutral Citation:

Richards v Sharp [2022] NSWLEC 1164

Hearing dates:

25 March 2022

Date of orders:

25 March 2022

Decision date:

25 March 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The Respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurance to prune the tuckeroo within 60 days of the date of these orders so as to provide at least 800 mm direct clearance between any part of the tuckeroo and any part of the Applicant’s dwelling. The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373 ‘Pruning of amenity trees’.

(2)   The Respondents are to provide the Applicant with at least 2 days’ notice of the works.

(3)   The Applicant is to provide any access required to complete the works during reasonable hours of the day.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage or injury caused by trees – a tree is likely to damage the applicant’s property – orders for pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 10

Texts Cited:

AS 4373–2007 Pruning of amenity trees, Standards Australia 2007

Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016

Category:

Principal judgment

Parties:

Dean Richards (Applicant)
Anne Sharp (First Respondent)
John Sharp (Second Respondent)

Representation:

D Richards (Self-represented) (Applicant)
A Sharp (Self-represented) (First Respondent)
J Sharp (Self-represented) (Second Respondent)

File Number(s):

2022/15769

Publication restriction:

No

Judgment

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

Background to the application

1. COMMISSIONER: Dean Richards (‘the Applicant’) has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for pruning of two trees on neighbouring land in Maianbar belonging to Anne and John Sharp (‘the Respondents’). He also seeks orders for compensation for property damage and pest control, and for costs of the application. Commissioners of the Court do not have the power to make a costs order.

Framework for this decision

2. Before I can make orders under Pt 2 of the Trees Act, I must be satisfied at s 10(2) that the trees have caused, are causing, or are likely in the near future to cause, damage to the Applicant’s property, or are likely to injure a person.

Reasonable effort to reach agreement

3. The Court must be satisfied that the Applicant has made reasonable effort to reach agreement with the trees’ owners (s 10(1)(a) of the Trees Act). There has been some limited discussion between the parties, whose relationship is not harmonious. It seems apparent that the possibility of reaching any agreement was unlikely. I am satisfied that Mr Richards made reasonable effort to reach agreement.

The trees

4. The Sharps have recently pruned the Port Jackson Fig (Tree 1 in the application). Mr Richards no longer presses the application in regard to the Fig.

5. A tuckeroo (Cupaniopsis anacardioides; Tree 2 in the application) grows between Mr Richards’ dwelling and the Sharps’ dwelling, near the back of Mr Richards’ dwelling. The space between the dwellings is approximately 4 metres wide; the tree’s branches and foliage cover this area and extend above both dwellings. The tree is healthy and without major structural defects.

Elements of damage in Mr Richards’ claim

Damage to gutters

6. Roof guttering at the back of Mr Richards’ dwelling is missing paint at its eastern end nearest the tree. Elsewhere along the back of the dwelling the gutter’s paint is intact. Mr Richards stated that the paint was scraped away by the tuckeroo’s branches rubbing against the gutter. The Sharps pointed out that no branches are close to or touching that part of the gutter. Mr Richards thought the offending branch was removed recently. Other branches are close to brickwork below the guttering and close to Mr Richards’ roof. It is difficult to determine if branches damaged the gutter’s paint, but this seems likely given the intact paint elsewhere. Mr Sharp pointed out that the damage might have occurred years earlier, prior to Mr Richards renting the property, when the property’s owner removed a branch. The damage appears old, and I accept this is a likely scenario.

7. To me, the damage seems minor, not warranting orders from the Court. If the damage is old, the property owner has had ample opportunity to repair it, but has not done so.

8. Branches close to the dwelling might cause some further damage when moving in the wind. Although the damage would be relatively minor, it could easily be prevented by pruning. Orders will be made to prune the tuckeroo to provide 800 mm direct clearance between its foliage and any part of Mr Richards’ dwelling.

9. Mr Richards wants all branches pruned back to or beyond the boundary line, but that is not necessary to prevent damage to his property. The Sharps stated that most of the tuckeroo’s branches shade their kitchen window from the western sun. The pruning to be ordered should not significantly impact the amount of shade to their kitchen window.

10. The pruning ordered here will prevent branches impacting Mr Richards’ dwelling for the foreseeable future, so orders for further pruning in future are not required.

Vermin

11. Mr Richards worries that possums are accessing his roof and dwelling via the tuckeroo’s branches. He disputed the Sharps’ suggestion that he had a problem with rats. He provided an invoice and letter from Bubba Gump Pest Control. Under ‘Pest Management Services Required’, checkboxes for rats and mice are ticked; the checkbox for possums is not. Even if I found possums were entering Mr Richards’ roof cavity via the tuckeroo, this would not be a reason to make any orders to interfere with the tree. The jurisdiction under Pt 2 of the Trees Act is limited to damage or injury caused by the tree, not by animals.

Roots

12. Mr Richards suggested that the tuckeroo would have roots under his dwelling and around, or in, his underground pipes. There was no evidence of this, nor of any damage resulting from the tree’s roots.

Clothesline

13. Mr Richards stated that bats visit the tree including its branches above his clothesline. However there was no evidence of any damage caused by the tree to the clothesline, so I cannot make orders on that basis.

Orders

14. For reasons explained above, the orders made in these proceedings are limited to clearance pruning to provide 800 mm direct clearance between Mr Richards’ dwelling and the tuckeroo’s branches and foliage. Branches to be removed appear to all be less than 100 mm in diameter. Pruning to clear all branches above the roofline is not required. If the Sharps would like to carry out more significant pruning, that is a matter for them. Correspondence from Sutherland Shire Council suggests the Sharps would not require a permit for further pruning.

15. As a result, the Court orders:

1. The Respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurance to prune the tuckeroo within 60 days of the date of these orders so as to provide at least 800 mm direct clearance between any part of the tuckeroo and any part of the Applicant’s dwelling. The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373 ‘Pruning of amenity trees’.

2. The Respondents are to provide the Applicant with at least 2 days’ notice of the works.

3. The Applicant is to provide any access required to complete the works during reasonable hours of the day.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 29 March 2022