Welladsen v Warren

[2021] NSWLEC 1081

Land and Environment Court

New South Wales

Medium Neutral Citation:

Welladsen v Warren [2021] NSWLEC 1081

Hearing dates:

20 January 2021

Date of orders:

20 January 2021

Decision date:

20 January 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is refused.

(2) The exhibits are returned, except for Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage to dwelling – overhanging tree – the tree was pruned prior to the hearing – no orders required

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006 (NSW), Pt 2, ss 7, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Freeman v Dillon [2012] NSWLEC 1057

Category:

Principal judgment

Parties:

Julie Welladsen (Applicant)
Louise Warren (Respondent)

Representation:

J Welladsen (Litigant in Person) (Applicant)
L Warren (Litigant in Person) (Respondent)

File Number(s):

2020/283209

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. Julie Welladsen (‘the applicant’) and Louise (Marama) Warren (‘the respondent’) have been neighbours in Milton for some time. A mature Narrow-leaved Black Peppermint (Eucalyptus nicholii) (‘the tree’) grows in Ms Warren’s garden. Its branches grew across their common boundary, overhanging Ms Welladsen’s property and her dwelling. Ms Welladsen asked Ms Warren to prune overhanging branches. When her request was not met, she applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for overhanging branches to be pruned.

2. Ms Warren contacted the Community Justice Centre to arrange mediation, but Ms Welladsen refused. Ms Warren engaged an arborist to prune the tree in October 2020.

Framework for this decision

3. Before making orders for any tree under Pt 2 of the Trees Act, the Court must be satisfied that:

• The applicant has made reasonable effort to reach agreement with the tree owner (s 10(1)(a));

• The tree 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 (s 10(2)).

The hearing

4. Today’s hearing took place onsite, allowing observations of the tree and both properties. Ms Warren filed a report by arborist Patrick Faulconer, of Arbor Medic. Additionally, I rely on my own arboricultural experience and expertise. Both parties were self-represented.

The applicant made reasonable effort

5. Ms Welladsen stated that she had a conversation with Ms Warren where she expressed her concerns about the tree. She subsequently wrote to Ms Warren in December 2019. It became clear during the hearing that these two neighbours are not on friendly terms and have had disagreements over other matters that are not relevant here. In the circumstances, I am satisfied that Ms Welladsen’s efforts were reasonable.

The tree

6. Mr Faulconer described the tree as being 18 metres tall with a stem diameter of 800 mm. The tree is in fair condition, the canopy being slightly sparse. One limb growing towards Ms Warren’s dwelling shows some dieback. The tree leans to the north, towards Ms Welladsen’s dwelling. It has apparently grown on this angle – there is no sign of movement or instability of its rootplate.

7. Recent pruning undertaken by Ms Warren in October 2020 removed most of the branches that extended above Ms Welladsen’s property, apart from one or two small branches over her garden.

8. Despite the recent pruning, which Ms Welladsen says removed most of the branches of concern to her, she still seeks orders from the Court for ongoing pruning of the tree to ensure the situation does not recur. She pointed out that it was seven years between pruning events. Her arborist informed her that pruning to the boundary, as has occurred in places, rather than removing branches right back to the stem, is likely to encourage further growth over her property. She is concerned that branches will again be above and close to her dwelling, where they might damage her dwelling, and where they drop leaf litter onto her roof and into her guttering, increasing the risk of fire damage.

9. Ms Warren pointed out the pruning, which was done by a qualified arborist. In his report, Mr Faulconer recommended annual inspections by an arborist, with annual pruning to minimise leaf litter on Ms Welladsen’s property by pruning overhanging branches, and also the annual removal of any major deadwood. Ms Warren made it clear that she intends to follow those recommendations.

Findings

10. I observed no major structural defects in the tree that would be likely to result in failure of the stem or large branches. My observations were made from the ground, but align with those of Mr Faulconer, who has climbed the tree for pruning and has therefore made closer observations of branches.

11. The tree provides shade and amenity. It is a significant feature of Ms Warren’s garden.

12. Ms Welladsen wants the tree maintained so it does not extend above her property. While it is Ms Welladsen’s common law right to remove branches over her property (subject to local government consent requirements), it is not incumbent upon Ms Warren to do so. Ms Warren has stated that she intends to maintain the tree responsibly by engaging an arborist to inspect the tree annually, and to undertake any works required, and I have no reason to doubt her intent.

13. The small branches currently overhanging Ms Welladsen’s property do not pose any risk of significant damage to her property in the near future, or of injury to any person. Neither do other branches throughout the crown, the majority of which is above Ms Warren’s own property. Therefore, on that basis, the jurisdictional test at s 10(2) of the Trees Act is not satisfied and I cannot make any orders.

14. Now that the tree has been pruned, less leaf litter will fall onto Ms Welladsen’s roof. If I accept Ms Welladsen’s assertion that leaf litter from the tree increases the risk of fire damage to her dwelling, I also find that this could be avoided by routine property maintenance, which is a reasonable expectation of the applicant, as per the principle in Barker v Kyriakides [2007] NSWLEC 292 at [20]. Furthermore, as per Commissioner Fakes’ reasoning in Freeman v Dillon [2012] NSWLEC 1057 at [86], Ms Welladsen’s concerns of fire risk would not provide grounds for orders.

15. I have considered all matters at s 12 of the Trees Act. Anything relevant has been discussed above.

Conclusions

16. I find that the tree has not caused damage to Ms Welladsen’s property, nor is it causing, or likely to cause, damage to her property in the near future. I also find it is unlikely to cause injury. On this basis I cannot make any orders.

Orders

17. As a result of the foregoing, the Court orders that:

1. The application is refused.

2. The exhibits are returned, except for Exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 19 February 2021