Land and Environment Court of New South Wales CITATION : Konn v Wisbey & Ors [2007] NSWLEC 799 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT M Konn PARTIES : RESPONDENTS P & L Wisbey INTERVENOR Penrith City Council FILE NUMBER(S) : 20890 of 2007 CORAM: Moore C - Fakes AC KEY ISSUES: Trees (Neighbours) - Neighbour Application :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Barker v Kyriakides [2007] NSWLEC 292 DATES OF HEARING: 5 December 2007 EX TEMPORE JUDGMENT DATE : 5 December 2007 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS In person INTERVENOR Mr E Rowse JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C FAKES AC 5 December 2007 07/20890 M Konn v P & L Wisbey JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: This is an application made by Ms Konn of 19 Gungurru Street, Orchard Hills concerning a Jacaranda (Jacaranda mimosafolia) (the tree) located in the front setback of the property at 21 Gungurru Street. Mr and Ms Wisbey own the property upon which the tree is located. 2 Pursuant to s 7 of the Trees Disputes Between Neighbours Act 2006 (the Act), Ms Konn seeks an order that the Wisbeys, at their expense, prune the tree to the boundary. The application also seeks compensation for: o the cost of installation of a gutter guard installed on the applicant's property o costs of the application to the Court; and o damages for personal stress 3 With respect to the final element of the compensation claim, during the course of the discussion on site, we indicated that the jurisdiction of the Court to make orders does not encompass orders for damage to people but merely encompasses orders for damage to property. The Court therefore is not able to consider this element of the applicant's claim. 4 We have had the advantage in these proceedings of attendance by officers of Penrith City Council (the Council). Mr Evan Rowse, of the Council's staff, indicated that he has given consent to the applicant, pursuant to the Council's Tree Preservation Order, to pruning of the tree's branches. He indicated that he did so contrary to his professional arboricultural opinion but did so in order to resolve a neighbour dispute. 5 The consent which Mr Rowse has given is a matter to which we will return later in this decision. 6 We have inspected the tree and its surrounding area on the applicant's property - including each of us undertaking a ladder inspection of the roof of the applicant's property. 7 The tree is a small but healthy specimen which was planted, on the tree owners' evidence, some 21 years or so ago. We do not detect any structural defects in the tree. 8 The impacts which the applicant says are occasioned to her property are caused by flowers, seed pods, leaves and small frond stems for the leaves falling on her property. The impacts that she claims are caused by these are depositions of material on the ground which has to be cleaned up and some of which is slippery; gutter blockages and her inability to grow grow lawn in the area close to the tree. 9 Gutter blockages have caused internal damage to the house on at least one earlier occasion and have also caused erosion of the side path between the two houses. 10 We are obliged, pursuant to s 10(2) of the Act, to consider whether the tree has caused; is causing or is likely in the near future to cause damage to the applicant's property or whether there is a likely risk of injury to any person. We are satisfied that, pursuant to s 10(2)(a), the tree has caused damage to the applicant's property. As a consequence of that finding, we have jurisdiction to consider whether or not it is appropriate, under the circumstances, to exercise the broad discretions given to the Court under s 12 of the Act to make any of orders with respect to the tree. 11 The first matter to which we turn is the question of whether or not we should order the pruning which has been sought. In the case of Barker v Kyriakides (2007) NSWLEC 292, the Court published a Tree Dispute Principle which, essentially, stated that for those persons who live in urban areas and have the environmental and aesthetic benefits of trees in such areas, there was a responsibility to undertake such reasonable maintenance as was necessary to deal with the impact of those trees on a person's property – whether or not the tree that caused the impact was located on their property or not. 12 In this instance, we have considered the nature of the material deposited on the applicant's property and are satisfied that there is nothing extraordinary about the nature of the material deposited by this tree. We are satisfied that it is appropriate, in this instance, to adopt the position espoused by the Court in Barker v Kyriakides. The consequence is that, as a matter of discretion, we decline to order any interference with or removal of any portion of the tree. 13 We turn to the question of whether or not we should order any compensation. Any damage to the applicant's house or grounds arises from a failure to respond to ordinary maintenance imperatives which we have considered to be appropriate under the circumstances of this case. 14 Failure to meet reasonable maintenance obligations that arise where the adoption and application of the principle in Barker v Kyriakides is appropriate, may also render inappropriate, under such circumstances, any compensation for or rectification of any damage which arises from the failure to meet ordinary maintenance responsibilities to deal with the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees. We are satisfied that this is the appropriate course to adopt under these specific circumstances. 15 We also observe that, under the present circumstances, the common law does not prevent the applicant from exercising her right, pursuant to Council's Tree Preservation Order consent granted on the 14 June 2007 (which is valid for a further the week or so), to undertake pruning permitted by that consent at her expense. If she wishes to do so, such consent, as presently granted, is consent for removal by the applicant rather than a requirement for the owners of the tree to undertake such removal at their expense. 16 We are not prepared on any proper exercise of the Court's discretion under the Act, on arboricultural bases, to order any interference with the tree or to order any compensation for past impacts of the tree. The application is dismissed. Tim Moore Judy Fakes Commissioner of the Court Acting Commissioner of the Court 09/01/2008 - Spelling - Paragraph(s) 16 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.