Land and Environment Court New South Wales Medium Neutral Citation: Burgess v Varlow [2015] NSWLEC 1457 Hearing dates: 10 November 2015 Date of orders: 10 November 2015 Decision date: 10 November 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS]: Damage to property; debris Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Ms L Burgess (Applicant) Mr R Varlow (Respondent) Representation: Applicant: Ms L Burgess (Litigant in person) Respondent: Mr R Varlow (Litigant in person) File Number(s): 20655 of 2015 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicant owns a property in Illawong in the Sutherland Shire. She has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of a Melaleuca bracteata goring on an adjoining property. 2. The respondent does not wish to remove the tree as he values it for the shade and amenity it affords his property. 3. The orders are sought on the basis that the leaf drop from the tree has caused damage to the applicant's property in particular – rotting of the roof battens, damage to the sarking beneath the tiles, and staining of the garage ceiling. The applicant is also concerned that future damage may be caused to other areas of the roof and to solar panels attached to it. 4. The applicant states in the application claim form that: the falling leaves are so fine they infiltrate under the roof tiles and then fall onto the sarking below the tiles - as she lives in a bushfire zone this is a fire hazard; the tree's fine leaves clump on top of and in the tile crevices, forming a dam that forces the water backwards and under the tiles; the leaves form a matt in the gutters which require continual cleaning; and, as the tree is to the south of her property, the prevailing winds blow the leaves onto her property. 5. In applications made under Part 2 of the Act, there are a number of jurisdictional tests that must be met before the Court's powers to make orders under s9 are engaged. The key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. Injury is not pressed. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' for damage is a period of 12 months from the date of the hearing. 2. The hearing commenced on site. The tree is a mature specimen thought to have been planted by a previous owner of the respondent's property about 20 years ago. The respondent has owned the property for the last 15 years. It is planted close to the common boundary and a portion of it overhangs the applicant's garage roof. 3. I was shown the staining on the ceiling of the garage however the applicant principally relies on the photographs, included with the application claim form, of the leaf litter under the tiles and other aspects of the claim. 4. On the evidence before me I am not satisfied to the extent required by s 10(2) of the Act that the leaves have caused any particular damage; rather, the leaves have accumulated and have presumably absorbed water which may have created conditions favourable to the deterioration of the battens and or the staining of the ceiling. 5. In this respect I am not satisfied that the Court's jurisdiction is engaged. However, if I am wrong in this I make the following observations. 6. I was informed that the roof is about 30 years old. While it is clear that the applicant has taken steps to prune some of the lower overhanging branches, some taller and more difficult to reach branches remain above the roof. When questioned as to how often the roof and gutters were cleaned, the applicant stated that it was carried about twice per year but because of the impending hearing, the last time cleaning took place was probably in March, some eight months ago. 7. The Court has considered many applications made on the basis of leaf drop. Early in the life of the Trees Act, the Court published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that: 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. 1. There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis. 2. While I note the applicant's annoyance and frustration with having to clean away the leaves of someone else's tree, it would appear that the roof is quite readily accessible and that the twice yearly clean is insufficient to manage the leaf fall. 3. Therefore while I remain not satisfied that there is any actual damage caused by the tree, as a matter of discretion and consistent with the Tree Dispute Principle, no orders would be made for any intervention with the tree on the basis of leaf drop. 4. In regards to the risk of fire as a consequence of the flammable nature of leaves, this is discussed in Freeman v Dillon [2012] NSWLEC 1057 at paragraph [86]. The circumstances of this matter do not engage whatever very limited provisions there may be in the Trees Act to consider trees and fire (see also Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at paragraphs [188] and [210]). 5. Therefore, in conclusion, the Orders of the Court are: 1. The application is dismissed. _____________________________ Judy Fakes 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. Decision last updated: 10 November 2015