Land and Environment Court of New South Wales CITATION : Gallagher v Aslett [2009] NSWLEC 1038 APPLICANT C Gallagher PARTIES : RESPONDENT G Aslett FILE NUMBER(S) : 21065 of 2008 CORAM: Moore C - Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- Ivy infestation of tree LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Barker v Kyriakides [2007] NSWLEC 292 CASES CITED: Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Black v Johnson (No 2) [2007] NSWLEC 513 DATES OF HEARING: 20 January 2009 EX TEMPORE JUDGMENT DATE : 20 January 2009 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT In person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C THYER AC 20 January 2009 21065 of 2008 C Gallagher v G Aslett 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 orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . 1 COMMISSIONERS: At the rear of 18 Anglers Drive, Bateau Bay, a coral tree is growing which is some 14 m in height. Mr Gallagher, the owner of 16 Anglers Drive, has applied to the Court for an order for either removal of the tree or pruning of the tree on ongoing basis. The coral tree is growing over the boundary between the properties and some of the branches are lightly touching the roof of Mr Gallagher's house. 2 The section of Mr Gallagher's house which is being touched by the branches of the tree is an extension to the dwelling which was erected some for seven or eight years ago at a time when, on the basis of a photograph provided to us by Ms Aslett, the owner of the tree, the tree was already a significantly advanced tree of considerable height. 3 It is difficult for us, under the circumstances, to determine the precise form of the branch structure of the main elements of the tree as there is an extensive ivy infestation climbing over the totality of the tree's structure and out to most of its significant minor branches. 4 Ms Aslett has asked us to conclude that this ivy has escaped from Mr Gallagher's front yard. We have, in the course of our inspection of the tree, walked along and examined the fence line between the properties between the area of Mr Gallagher's front yard (where there is extensive ivy growing in his garden bed and on the common boundary fence between the properties) and the area where the tree growing and we could see no evidence of the ivy growing from the front portion of Mr Gallagher's property to the rear portion of Ms Aslett's property. We are not prepared, on the basis of what we have seen on the inspection, to conclude that the ivy is growing from Mr Gallagher's property onto Ms Aslett's property. 5 We have carefully considered the structure of the tree as best we are able to assess it together with the matters that we are obliged to consider pursuant to Section 10(2) of The Trees Disputes Between Neighbours Act 2006. They are whether the tree has, is or is likely in the near future to cause damage to Mr Gallagher's property or whether it is a likely risk of injury to any person. We have no evidence that the tree has in the past caused damage to Mr Gallagher's property and he has not suggested to us that this is the case nor that it is presently doing so. 6 The reasons underpinning his application are his apprehension that the tree is likely in the near future to cause damage to his property or that it is a likely risk of injury (particularly to those persons living in or occupying the bedroom immediately adjacent to the tree – that is within the extension to his dwelling that was erected some seven or eight years ago). 7 It is his evidence that there have been some branches fall from the tree but that they have been comparatively small in size and he also has a concern that leaves from the tree may be blocking the gutters along that side of his property. 8 With respect to this latter point, this can be dealt with comparatively briefly in light of the tree dispute principle published by the Court in Barker v Kyriakides [2007] NSWLEC 292 which is that (even if damage were demonstrated as discussed as a preliminary point by Preston CJ in Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152) it is the responsibility of persons living in urban environments having the environmental and aesthetic benefits of trees to undertake ordinary reasonable maintenance of their property to remove twigs, leaves, nuts and berries and the like from their property including from their gutters. There is nothing in these circumstances, even if we were satisfied that there was actual damage as a threshold or likelihood of damage to Mr Gallagher's gutters, that we would cause us to displace the tree dispute principle in Barker v Kyriakides. We therefore will not make any order based on his concerns about leaves in his gutters. 9 With respect to the likelihood of damage to his property in the near future the potential wind loading of the tree is significantly increased as a consequence of the vigorously growing ivy that infests the whole of the upper structure of the tree. If, as a consequence of the weight and wind sail effect of that ivy, the tree were to be damaged, we are satisfied that it is likely that that damage could occur within the 12 months and that it would result in some damage to Mr Gallagher's property. We will return to that shortly. 10 We are also of the view having considered both the structure (as best we are able to ascertain it); the lean of the main trunk of the tree; and the weight of the upper branches of the tree (all of which are to the south-west away from Mr Gallagher's property) that there is no significant likelihood of risk of injury to any person as a consequence of failure of the tree. If the tree were to suffer catastrophic failure for some reason, we are satisfied that that is not likely to cause injury to any person while it might cause damage at some indeterminate time of a substantial nature to Mr Gallagher's property. We are not satisfied however that that is likely to occur in the next 12 months or so being the period discussed in the rule of thumb published by the Court in Yang v Scerri [2007] NSWLEC 592 which we also consider is appropriate to adopt in these circumstances. 11 We therefore return to the sole basis upon which we are satisfied that we have jurisdiction to deal with the matter, that is, that there is a likely risk of damage to Mr Gallagher's property occasioned by some branch failure from the tree as a consequence of the wind sail loading caused by the ivy which is growing on the tree. 12 It is pertinent, at this point, to note that, in the past, Mr Gallagher has pruned the tree to the boundary from his side (as he is entitled to do at common law) and to which there is no inhibition as the Council has advised him by letter in evidence dated 2 May 2008 that the Council's Development Control Plan exempts coral trees and that removal or work on those trees does not require the Council's permission. 13 We have also considered the fact consistent with the tree dispute principle published by the Court in Black v Johnson (No 2) [2007] NSWLEC 513 that where there is a pre-existing tree and development is undertaken in the vicinity of that tree, the undertaking of the development will not cause the Court to set aside consideration of the issued raised by the statute but will cause the Court to consider who should bear either financial or functional responsibility for the carrying out of any work that might be considered necessary. 14 We have reached the conclusion, in this case, that the necessity to order some work on the tree as a consequence of the likelihood in the near future of damage to Mr Gallagher's property arises solely as a consequence of the erection of Mr Gallagher's extension. There being no other basis to order work on the tree apart from the likely risk of damage to property in the next 12 months it is appropriate to consider whether or not we should order him to undertake or pay for the work that we consider that is necessary. As we have earlier indicated, we are of the view that the risk arises primarily a consequence of the presence of ivy in the tree and the likelihood that that ivy infestation will continue in the future. 15 Ms Aslett has indicated she had attempted to control the ivy in the past but has been unsuccessful. We are of the view that the appropriate way to deal with the ivy (and thus remove the risk of likelihood of damage to Mr Gallagher's property) is to require that a section of the stems of all the ivy runners located growing on the tree should be removed from a point 500 mm above ground level to a point 1 m above ground level and that the requirement that these runners (and any regrowth of them suckering from the lower portion) should be removed on an annual basis. 16 We have considered under the principle in Black v Johnson (No 2) who should be ordered to do this and on what basis. We have concluded that as a consequence of the risk arising because Mr Gallagher has constructed his extension that we should order that: 1. all the ivy located between 500 mm and 1 m above ground level growing on the coral tree located at the rear of the dwelling located on 18 Anglers Drive, Bateau Bay is to be removed; 2. the first such removal is to take place by 31 March 2009; 3. this removal is to be repeated at not more than 12 monthly intervals thereafter; 4. Mr Gallagher is undertake the work in (1); and 5. Ms Aslett is to give Mr Gallagher access (on reasonable notice, at a reasonable hour of the day and with Ms Aslett having the opportunity to supervise access) for undertaking the work in (1). Tim Moore Peter Thyer Commissioner of the Court Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.