The Owners - Strata Plan No. 47463 v The Owners - Strata Plan No. 76269

[2018] NSWLEC 1598

Land and Environment Court

New South Wales

Medium Neutral Citation:	The Owners – Strata Plan No. 47463 v The Owners – Strata Plan No. 76269 [2018] NSWLEC 1598
Hearing dates:	24 October 2018
Date of orders:	24 October 2018
Decision date:	24 October 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [9]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to fence – fence requires replacement – debris from trees – whether trees must be removed
Legislation Cited:	Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292
Texts Cited:	AS4373 Pruning of amenity trees WorkCover NSW Code of Practice for the Amenity Tree Industry
Category:	Principal judgment
Parties:	The Owners – Strata Plan No. 47463 (Applicant) The Owners – Strata Plan No. 76269 (Respondent)
Representation:	M Mohamed, agent (Applicant) M Apiata, agent (Respondent)
File Number(s):	2018/202857
Publication restriction:	No

Judgment

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

Background

1. Seven trees grow on the property of the Owners of Strata Plan No. 76269 (‘the respondents’) in Regents Park, close to their eastern boundary: four she-oaks and three wattles.

2. A significant section of the timber paling fence along the common boundary on their eastern side has collapsed. 

3. The Owners of Strata Plan No. 47463 (‘the applicants’), who share this common boundary, say the fence’s collapse resulted from rotting fence posts, in turn a result of excess water that flowed from their roof during heavy rain when their gutters were blocked with debris from the trees. They have applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for all seven trees to be removed and for a 46-metre section of the fence, which has collapsed, to be replaced.

4. The respondents are willing to remove dead or dying trees and to share the cost of replacing the failed section of the boundary fence, which they say collapsed due to posts that were placed directly in soil without a concrete footing, causing them to rot. They wish to keep the healthy she-oaks. 

Onsite hearing and findings

5. I observed the seven trees at the onsite hearing. One of the wattles is dead; the other two have dieback and their condition is declining. One of the live wattles leans over the applicants’ property. The four she-oaks appear healthy. Limbs of the she-oaks grow close to, and above, the applicants’ roof and guttering. Foliage from the she-oaks covers much of the ground near the boundary fence. The applicants provided photos showing similar foliage on their roof. The southern section of the fence has collapsed.

6. Water overflow may have resulted from tree debris blocking the applicants’ guttering. It has not been shown that this has damaged the fence. On the contrary, I accept the respondents’ submission that the decay of fence posts is mainly due to their being set only in the site’s damp soil, without any concrete footings. However, even if overflow has contributed to the fence’s condition, I find the principle established at [20] in Barker v Kyriakides [2007] NSWLEC 292 would apply here:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, 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.”

7. As a result, I would not make any orders on this element of the application, even if I was satisfied that debris from the respondents’ trees had contributed to the fence’s condition.

8. The dead and dying wattles are likely to shed dead limbs, which may damage the fence. Although any damage is unlikely to be significant, it would be sufficient to enliven the Court’s jurisdiction under s 13A of the Dividing Fences Act 1991 (NSW), so that orders can be made for any part of this dividing fence. The wattles may also damage the applicants’ building, particularly the tree that most overhangs their roof. All three wattles require removal. Although the respondents have permission from Cumberland Council to remove all seven trees, this does not require them to do so. I see no need to remove the four she-oaks, although limbs close to the building are likely to damage the guttering, so they should be pruned for building clearance to prevent this.

Orders

9. As a result of the above, the orders of the Court are:

1. Within 30 days of the date of these orders, the respondent is to engage a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the three wattles to ground level and to prune the four she-oaks so that no limb is within one metre of the applicant’s building. Works are to be done in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry and AS4373 Pruning of amenity trees.

2. The respondent is to give the applicant two days’ notice of the works. 

3. The applicant is to allow all access necessary for the works during reasonable hours of the day.

4. Within 30 days of the date of these orders, the applicant and respondent are each to obtain, and swap with each other, three quotes for replacing the ~46-metre damaged section of the common boundary fence with a similar paling fence with posts set in concrete.

5. Within 60 days of the date of these orders, the parties are to engage the cheapest contractor (or another if agreed) to replace the fence and are each to pay 50% of the cost of the works.

6. Both parties are to allow any access necessary for these works during reasonable hours of the day. 

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 19 November 2018