Land and Environment Court of New South Wales CITATION : Linkenbagh v Hallett [2008] NSWLEC 1309 APPLICANT Paul and Rachel Linkenbagh PARTIES : RESPONDENT Elaine and Neville Hallett FILE NUMBER(S) : 20476 of 2008 CORAM: Fakes AC KEY ISSUES: Trees (Neighbours) :- Pruning of trees, damage to property, risk of injury LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592 DATES OF HEARING: 23/07/2008 EX TEMPORE JUDGMENT DATE : 23 July 2008 APPLICANT Mr P. and Mrs R. Linkenbagh, litigants in person LEGAL REPRESENTATIVES: RESPONDENT Mrs E. and Mr N. Hallett, litigants in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes AC 23 July 2008 20476 of 2008 Paul and Rachel Linkenbagh v Elaine and Neville Hallett JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decsion in this application is the making of formal orders pursuant to s.9 of the Trees (Disputes Between Neighbours) Act 2006. These orders are not reproduced as part of this decision but a copy of the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Linkenbagh of 24a Kuring-Gai Chase Rd, Mt Colah against 2 trees located at the rear western boundary of a property owned by Mr and Mrs Hallett of 26 Kuring-Gai Chase Road Mt Colah. 2 The trees are a mature Pistacia chinensis (Chinese Pistachio) and an Ulmus glabra 'Lutescens' (Golden Elm). Some of the branches of these trees overhang the roof of the applicants' house. They were planted about 40 years ago by the respondents soon after they moved into their house. 3 The applicants are seeking the pruning of the trees to the fence line and the subsequent maintenance of the canopies to the boundary line as they contend that the trees, when in leaf, brush against the roof. They are concerned that this may damage the tiles. They also state that they and their children are kept awake on windy nights as the ends of the branches make a scratching noise. They also contend that the trees pose a risk of injury to themselves and their children because if a branch was to fail it may cause the collapse of the tiles and therefore harm whoever might be in that part of the house. The applicants are also concerned about the leaves blocking their gutters. 4 The respondents do not want the trees pruned to the fence-line as they value the trees for their form and fear that this may lead to other problems with the trees. They also value the trees for the shade that they provide for themselves and the understorey plants in that part of the garden. 5 The trees were inspected from both properties. They are mature trees of approximately 40 years old. The trees were fully deciduous when inspected. The ends of the branches showed extension growth consistent with normal healthy mature trees of those species. There was one dead branch of about 50 mm diameter in the Pistachio. Both trees had multiple stems with some included bark however, there was no cracking or any other signs that this condition would lead to failure of any part of the tree in the near future. The attachments of all of the branches in the sections of the trees that overhang the applicants' property appeared normal and sound. 6 It was observed that some inexpert pruning of one branch of the elm had been carried out. This was reportedly done by a roofing contractor when the applicants' house was being built in 2006. It was also noted that there was a considerable build up of leaves in the gutter. 7 Under s. 12 of the Act, the Court must consider a number of matters. The relevant clauses in this case are: (a) The trees are wholly located on the respondents' land. (e) The trees contribute to the scenic value of the land on which they are situated. The respondents' garden is an award-winning garden that is open to the public. The trees provide a backdrop to the garden and a pergola and provide protection to shade-loving plants. (f) As the garden is open to the public through the Open Garden Scheme, there is some intrinsic value to public amenity. They also contribute to the canopy cover in the immediate area. (h)(i) part (ii) The applicants have not considered the remedies that may be available to them under the Hornsby Council Tree Preservation Order. (j) Other matters that may be relevant to this case. When questioned as to the direction of the strongest winds, the Mr Hallett said that the westerly winds were quite strong. This was not disputed by Mr Linkenbagh who also added that the north-easterlies and south-westerlies can also be of concern. The applicants' house is to the west of the trees. The trees are approximately 9 m tall and are reasonably sheltered by the surrounding houses and other vegetation. As the winds mostly come from the west and south-west, branches are more likely to be blown away from the applicants' property. 8 Under s.10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants' property. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. 9 In the matter here with respect to the leaves, in Barker v Kyriakides [2007] NSWLE 292 and subsequent tree dispute principle, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This applies in this case. For people who live in an urban leafy environment, and have the benefits of that environment, a reasonable degree of housekeeping is expected. The gutters on the applicants' property are readily accessible. 10 With respect to damage caused by the trees, the trees have not caused any damage, they are currently not causing any damage, and are unlikely, in the near future, to cause any damage to the applicants' property. Similarly, there is nothing noted in the condition of the trees that renders them likely to cause injury to persons. 11 As done of the criteria is s.10(2) of the Act apply, the orders of the Court are that the application is refused. ___________________ J Fakes 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.