Ewen & anor v Whan & anor [2016] NSWLEC 1501

Land and Environment Court New South Wales

Medium Neutral Citation: Ewen & anor v Whan & anor [2016] NSWLEC 1501 Hearing dates: 27 October 2016 Date of orders: 27 October 2016 Decision date: 27 October 2016 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at (19). Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); Council tree protection; Court's role under the Trees Act is distinct from Council's role; risk of damage or injury; orders for pruning one tree. Legislation Cited: Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Category: Principal judgment Parties: Helen Ewen (First Applicant) Paul Dusan (Second Applicant) Renee Whan (First Respondent) Greg Fountain (Second Respondent) Representation: Helen Ewen and Paul Dusan, litigants in person (Applicants) Renee Whan and Greg Fountain, litigants in person (Respondents) File Number(s): 195854 of 2016

Judgment

Background 1. Amongst the dense dwellings of Annandale a mature Sydney Blue Gum (Eucalyptus saligna) ('the Tree') stands in a small courtyard at the rear of a dwelling, its crown visible for some distance in the surrounding neighbourhood. In 2010 Dr Whan and Mr Fountain ('the respondents') purchased the property on which the tree stands, and have lived there since. The previous owners of their property had applied to Leichhardt Council in 2005 to remove the tree. Council refused the application, noting the tree was in "excellent condition". An arboricultural report obtained by the owners at the time recorded the tree's height as 18 metres, its crown spread as 15 metres and the diameter of its stem as 600—700 mm. 2. The Blue Gum is close to the respondent's rear boundary, and perhaps some six metres from the side wall of the dwelling on the property to the north. The properties are separated by a narrow 'night soil lane'. The tree's crown overhangs not only the respondents' dwelling, but also that of the dwelling to their north and other neighbouring dwellings, as well as the road, footpath and power lines to their west. 3. Helen Ewen and Paul Dusan ('the applicants') have owned and lived at the property to the north of the tree since 2003. They are concerned that the tree drops branches, which have damaged their property. On two occasions, in 2011 and in 2015, branches falling from the tree broke external lights and sensors on the wall along the southern side of their house. They are worried that falling branches could cause further damage or injury, or that the tree may fall entirely onto their dwelling. At the front of their house, children's bedrooms are beneath the tree's crown. They are also worried that leaves and other debris falling from the tree onto their roof, lying in roof valleys and gutters, on their rear deck, and generally on the ground on and about their property, will damage their property. They can't access their roof, so pay somebody to regularly clear debris from the roof and gutters. They say they shouldn't have to pay for maintenance arising from a tree that is not theirs. 4. The applicants have discussed their concerns regarding the tree with its owners, both current and previous. They asked for compensation for replacing the damaged lights, but received none. They want the respondents to remove the tree. The respondents say that nothing has changed significantly since the tree's previous owners applied for its removal, so they don't wish to incur the cost of applying to Council to remove the tree if, as they believe, Council is likely to refuse the application. While they like the tree, they say they too get concerned for their family's safety on windy days. 5. The applicants seek orders from the Court, pursuant to the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), for removal of the tree and for compensation for damage to property and cleaning up of debris. 6. The respondents obtained an arboricultural assessment and report on the tree in August of this year. Mr Hayden Coulter, of ENTS Tree Consultancy, recorded that the tree is 18 metres tall, has a crown spread of 12 metres and a stem diameter of 800 mm. Mr Coulter concluded that the tree did not appear to have significant defects, and that it posed a moderate level of risk to buildings but a low level of risk for surrounding land users. On my reading, the risk to buildings to which he refers arises from future growth of the tree, especially its roots and lower stem, and its proximity to the respondents' dwelling. 7. The respondents noted that the tree's dimensions had not changed significantly between the measurements recorded in the 2005 arboricultural report and Mr Coulter's report of 2016. They say this shows the tree is growing slowly, and is unlikely to reach the size imagined by the applicants. Indeed, the tree's recorded crown spread has reduced since 2005. The respondents say this is due to the amount of pruning carried out since then. They get a qualified arborist to prune the tree every two years. Pruning, done within Council's permitted guidelines, removes dead and dangerous branches and has reduced crown extension over dwellings. The tree was last pruned in October 2014 and is now due for pruning, but they have postponed this until their neighbours' application to the Court is heard and resolved.