Garbutt v Nichols

Land and Environment Court (NSW)|2025-01-09

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

COMMISSIONER: A mature blackbean tree (the tree) grows in the rear garden of the Bulli property belonging to Denise Nichols and Christine Bird. Its canopy partly extends across their side boundary into the neighbouring property belonging to Daniel and Amy Garbutt.
The Garbutts have applied to the Court seeking orders for Ms Nichols and Ms Bird to remove their tree. Their reasons are:

This large tree drops considerable amounts of debris that falls onto their roof and into their guttering. This has blocked their gutters and downpipes, causing drainage issues around the property and beneath their dwelling. The maintenance required to prevent this is too onerous for them. They cannot safely access the roof of their double-storey dwelling.
The additional moisture combined with the tree's shade causes mould issues on their property.
Seed pods drop onto their path along their side boundary. One has hit a person. They say injury is likely. This is the only exterior access to and from their back garden, which is important during fire.
They are in a bushfire prone area and are required to maintain clearance between their dwelling and any tree canopy.

The tree

The blackbean tree (Castanospermum australe) is approximately 12-13 metres tall with a crown spread of around 12 metres and a stem diameter of almost a metre at its base. The tree is healthy and its form is fairly typical for the species when grown in the open. The species is native to Queensland and northern New South Wales.

Framework for this decision

The Garbutts have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The orders they seek are orders the Court can make at s 9 of the Trees Act. The Court is not required to make the orders sought by the Garbutts, but can make orders as it sees fit to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before making any orders, the tests at s 10 of the Trees Act must be met.

Reasonable effort to reach agreement

The Garbutts sent letters to Ms Nichols and Ms Bird. They discussed their concerns about the tree. They applied unsuccessfully for mediation through the NSW Community Justice Centres. I am satisfied that the Garbutts made a reasonable effort to reach agreement and that the required notice of the application was given: s 10(1) of the Trees Act.

Damage and injury

The jurisdiction to make orders in these proceedings is restricted by s 10(2) of the Trees Act. (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.

Debris

I deal here with the issues identified by the Garbutts. Perhaps their principal concern is the amount of debris dropped by the tree and the maintenance required to deal with the debris. They cannot safely access the roof of their double-storey dwelling, so debris has blocked their gutters and downpipes. They showed the Court debris that has fallen onto the path along their side boundary over the last four weeks.
Ms Nichols and Ms Bird pointed to the lack of gutter guard on the Garbutt's roof, despite gutter guard installation being a condition of the Garbutts' development consent. The respondents stated that their own gutters are not blocked by the trees' leaves, despite the tree overhanging their dwelling.
In Barker v Kyriakides [2007] NSWLEC 292 (Barker), the Court established the following principle at [20]: "20 … 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."
The Court has followed this principle consistently, even in matters where trees dropped greater amounts of debris onto double-storey roofs than the blackbean does in these proceedings. I see no reason to stray from that principle here.

Mould

The Garbutts showed the Court their sub-floor area, where they experience dampness and mould. They pointed out some mould on blinds in a bedroom that has a window facing the tree. They took the Court to all rooms along the side of their dwelling near the common boundary and the tree, pointing out the lack of natural light in these rooms.
In Hendry & anor v Olsson & anor [2010] NSWLEC 1302, in which an applicant claimed a neighbouring tree caused mould to grow on their property, the Court extended the principle in Barker at [14], as follows: "14 …for the same reasons of having the benefit, environmental and aesthetic, of trees in an urban area the responsibility for ordinary maintenance of a property should extend to the cleaning of such surfaces as paving and paths and the like."
The side of the Garbutts' dwelling nearest the tree faces southeast. Windows would not receive any direct sunlight during winter. I cannot be satisfied that the tree has caused mould to grow in places on their property. For these reasons, and relying on the Court's established principles, I would not make orders on this element of the application.

Light

Related to the mould issue is the Garbutts' complaint of the lack of light in rooms near the tree. The obstruction of sunlight can provide a reason to make orders only for trees that form hedges under Pt 2A of the Trees Act. In this Pt 2 application, a lack of light resulting from a neighbouring tree could be considered under s 12(j) of the Trees Act, but such an obstruction does not enliven the Court's jurisdiction at s 10(2). Below, I find that the tree is likely to cause damage for other reasons, so I may consider other relevant issues such as the tree's impact on light in the Garbutts' dwelling. However, the situation is one to which they have contributed. Before the Garbutts designed and built their dwelling in 2012, a garage stood in that part of their property beneath the blackbean tree's canopy. According to an arborist report at the time, the tree was 11.5 metres tall in 2012 and photographs show it spreading across the boundary. Despite the presence of this blackbean tree, they designed and built their dwelling 2 metres from the boundary with windows facing the tree. With this in mind, I do not find the tree's impact on their access to natural light to be a relevant issue when determining the application.

Branches are likely to damage the dwelling

Branches and foliage of the tree are brushing against the Garbutts' roof guttering and parts of their dwelling. This is likely to cause some minor damage, such as surface scratches. Such damage can be prevented by pruning the tree; removal of the entire tree is not required to deal with this. Any orders for pruning would need to allow for regrowth - cut branches of this healthy tree are likely to reshoot and grow quickly. Pruning to provide clearance of approximately 2 metres should suffice.

Injury

The Garbutts showed the Court seed pods that fall from the tree onto the path alongside their dwelling. They have lived here since 2012, during which time they have not reported any injury to the respondents. Although they use the path between their dwelling and the side boundary, the frequency of people beneath the tree over the course of time there is relatively low, and seed pods fall only for a time following the tree's flowering season, so I find it unlikely that the tree will cause injury.

Matters to be considered by the Court

Most of the Garbutts' concerns do not justify the making of orders under the Trees Act. Only the likelihood of branches causing minor damage, by striking or rubbing against their dwelling, enlivens the Court's jurisdiction. Such damage can be prevented by pruning.
Before making orders, the Court is required to consider a range of matters set out at s 12 of the Trees Act. I have considered those matters that are relevant.
Ms Nichols and Ms Bird explained that they have pruned the tree in the past. However, when they last obtained a quote for pruning they found the cost was too expensive.
The Garbutts submitted that they have been unable to find an arborist willing to prune the tree because they would require access to the neighbouring property.
The Garbutts submitted that they are required to maintain tree canopy clearance above and around their dwelling because they are in a bushfire prone area. They referred to conditions of their 2012 development consent, so I asked them to provide a copy of the consent (Exhibit B).
Condition 9 of their development consent declares their Bushfire Attack Level as BAL 12.5.
Condition 43 of the development consent requires the entire property to be managed as an inner protection area (IPA) in perpetuity.
At Condition 44, maintenance requirements of the IPA include: "• Areas under fences, fence posts, gates and trees shall be raked and kept clear of fine fuel. • Gutters, roofs and roof gullies shall be kept free of leaves and other debris. … •Trees may be retained within the IPA where: • No part of the tree overhangs within 2 metres of any building. • …"
The Garbutts' development consent clearly sets out maintenance requirements on their property, including that they maintain clearance between their dwelling and any part of a tree. The blackbean tree was present at the time they received their development consent. Near the tree, their dwelling is set back from the side boundary by approximately 2 metres. Maintaining clearance between their dwelling and the tree would prevent the minor damage I have identified above as the only damage likely to be caused by the tree. The Garbutts have not been maintaining their property as required by conditions of their development consent.
It is unusual for the Court to order pruning to a property line, but doing so here would provide the clearance to the dwelling required by the development consent. And only in certain circumstances in tree disputes does the Court order an applicant to carry out and pay for works to a neighbouring tree. In this case, it is appropriate to do so because the works are a requirement of the applicants' development consent.
The pruning ordered below should also mitigate some of the other issues identified by the Garbutts - for instance, it will minimise the amount of debris falling into their gutters and the number of seed pods falling within their property, and it will allow more light to their windows.
The development consent does not give the Garbutts a right to enter the neighbouring property. However, such access is required to prune the tree properly. The orders made below negate the requirement for council consent for the pruning works (s 6(3) of the Trees Act) and allow the arborist engaged by the applicants to gain access to the respondents' property to properly prune the tree.
Late in the hearing the respondents expressed some willingness to remove the tree. Tree removal is not required to prevent damage that is likely in the near future, so it will not be ordered here. Council has tree protection measures in place and a process for assessing tree removal applications. There is no need here for the Court to interfere with that process.

Orders

The Court orders: 1. The application is granted as per the following orders. 2. The applicants are to engage and pay for suitably insured and qualified (minimum AQF level 3) arborists to prune the tree within 60 days of the date of these orders, and annually thereafter during the month of February, to remove all branches of the neighbouring blackbean tree extending over their property. Pruning must be done in accordance with AS4373:2007 'Pruning of amenity trees' and the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. In some instances this will require pruning branches back to their branch collars beyond the common boundary and within the respondents' property. 3. The applicants are to give the respondents 7 days' notice of each occurrence of the works in Order (2). 4. The respondents are to allow all reasonable access required for completion of each occurrence of the works in Order (2) during reasonable hours of the day. 5. The exhibits are retained.

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: 21 January 2025

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