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Since the commencement of the Trees Act on 2 February 2007, the Land & Environment Court has defined two tree dispute principles.
In its simplest form, the tree principle, where relevant, sets out what the court will address and consider in determining an application. The first principle has evolved from the numerous cases brought by an applicant to have the neighbour’s tree removed because of the volume of material falling from the tree onto the applicant’s property. Frequently, the complaint relates to dead wood, leaves, twigs, seeds and the like falling onto a roof and blocking the gutters or into a swimming pool. Barker v Kyriakids (2007) NSW LEC292 was a case from which the principle was derived.
Mr & Mrs Barker sought orders from the court for the removal of a large eucalyptus tree, located on the boundary between their property and a neighbouring block. The Barkers were fed up with leaves and small deadwood falling off the tree into their gutters and swimming pool and surrounds. In addition, Mr Barker who was of advanced years, found it increasingly difficult to climb and clean the gutters and the swimming pool and surrounding area. He was compelled to employ someone to do the work and sought costs associated with this expense.
The Barkers applied in the Land & Environment Court to deal with two matters. The first related to a small number of trees planted by their neighbour, Mr Kyriakides, and located near a sewer main along the boundary between the Kyriakides’s property. The court declined to take any action concerning those small trees because, in the court’s opinion there was no evidence at the present time to conclude the trees were causing any damage nor was there any future likely damage to be caused to the sewer.
The second issue related to a large eucalypt tree. The Barkers expressed concern about falling leaves and small pieces of dead wood falling into their gutters and areas of open space on their property. In its decision the court set the first tree dispute principle. The principle states that people who chose to live in urban environments must expect to maintain the exterior of the house and grounds, especially where they are to benefit from having trees in such an environment. This leads to an expectation that people must clear gutters and surrounds of their house on a regular basis.
The dropping of leaves, flowers, fruit, fruit seeds or small elements of dead wood by urban trees, is not a sufficient reason to seek the court’s involvement for the removal of or intervention with urban trees.
The second principle arose from the case of Black v Johnson (No 2)(2007)NSW LEC513. The principle here dealt with who pays the costs for any works associated with damage to adjoining properties caused by the trees or the removal of a tree. In this case the court had found in favour of the removal of a tree on Mr Black’s property. The question arising before the court was who was to pay for the removal of this tree. The facts established that when Mr Black had built his house, the four trees had been growing there for quite some time. The tree dispute principle here, investigated the possibilities of there being any alternative development opportunities for the construction of Mr Black’s house that would not have caused any future conflicts with the trees. In so doing, the court considered the hypothetical alternative design to Mr Black’s house bearing in mind and considering the location of the existing trees. In the final analysis the court found that even if the house had been redesigned, then the likelihood of there being a need to remove that tree as a consequence of damage to the dwelling house was unlikely to be satisfied. The principle in this case requires the consideration of relevant matters in deciding who should pay for any works associated with the damage caused by a tree or who should pay for the removal of a tree.
The principle has serious implications for the location of our extensions to dwelling houses where neighbouring trees have been in place for considerable years. In other words, if a person contemplates building a new house or making alteration and additions to the house or constructing a swimming pool, that person cannot, years down the track, complain about the effect of a tree if the tree had already been in place prior to the proposed development.
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