The evidence and findings
20In regards to T1, I am not satisfied on the evidence before me and to the level required by s 10(2), that this tree has caused, is causing, or could in the near future cause, damage to the applicant's property or injury to any person.
21However, if I am wrong in this, as a matter of discretion afforded by s 9, I am not minded to make the orders sought by the applicant on the basis that the alleged damage is very minor to negligible.
22Specifically the damage, said to be caused, to the retaining wall is the cracking of the mortar between several pieces of vertically arranged sandstone 'bush rock' slabs at the edge of a retained garden bed about a metre away from the tree. In regards to the fence, there may be a very minor displacement, however, I did not see any direct contact between T1 and the fence.
23Even if there is some influence of tree roots on the sandstone edge of the garden bed, I note that the wall is not an engineered retaining wall but rather a style of landscaping popular many decades ago [I note that the applicant's dwelling was built in 1958]. It is not unreasonable to assume that soil and water movement over time could have placed pressure on the wall; similarly, works on the respondents' property adjacent to that section of wall may have had some influence.
24The damage, if indeed the tree has contributed to it, is so minimal as to not warrant an order of the Court. Removal of the tree would be a very disproportionate response to the extent of the alleged damage.
25With respect to the issue of leaves on the roof, the applicant was given leave to submit additional photographic evidence of, amongst other things, the condition the roof.
26Several of the photographs taken in June this year show debris between the tiles. The roof at the rear of the applicant's dwelling is part tile and part metal - the metal component being over a more recent addition. The tiles are likely to be the originals. The leak occurred in the area between the newer and older sections of the roof.
27My assessment of the photographs is that the debris between the tiles is likely to have been there for some considerable time prior to the applicant's purchase of her property. While the applicant stated that the gutters of the house are regularly cleaned, they had not undertaken any cleaning of valleys prior to the leak, as they were unaware that this would be a problem.
28While some water damage may have occurred to the laundry ceiling, and the insurer identified the cause as a build up of debris, the insurance company also indicated that this was a maintenance issue. Even if I were satisfied that there was a nexus between the tree/s and the damage, as a matter of discretion I am not minded to make the orders the applicant seeks.
29Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has 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.
30There 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; and so it is with this matter. While the applicant contends that the leaf material is very fine and the cleaning of the valleys requires removal and replacement of tiles, I am not satisfied that these are circumstances that warrant a departure from this Principle. The applicant is now aware of the specific maintenance requirements of that particular form of roof.
31Therefore the application to remove T1 is dismissed on the basis of damage to property.
32In regards to the potential risk of injury arising from falling fruit and dead branches from the overhanging parts of the canopies of the trees, the fruit is quite small and unlikely to cause injury. I saw no substantial dead wood or any structurally unsound branches that are likely to cause injury to anyone. As noted before, the hanging branch in T2 is in a position, that should it fall, it is unlikely to cause injury to anyone on either property.
33Therefore, the application to remove the trees on the basis of injury is dismissed.
34With respect to T2 and the damage to the 'retaining wall' and the storm water pipe, the applicant contends that the retaining wall at the base of T2 became clearly unstable and stones were dislodged in May this year after some heavy rain. At that time the water pipe was found to be dislodged and leaking.
35I am satisfied on the evidence that T2 has contributed to the damage to the applicant's property, thus satisfying s 10(2), and engaging the Court's jurisdiction. However, in determining what orders are appropriate, I must consider a number of matters in s 12 of the Act.
36In my view, of most relevance are factors other than the tree that may have contributed to the damage (s 12(h)(i)). In this regard, the nature of the 'retaining wall' is that it is an arrangement of loosely stacked sandstone rocks; it is not an engineered wall. It supports a depth of soil of at least 800mm and it is located immediately adjacent to the base of the tree.
37While there is likely to be some impact of root pressure on the rocks, there is also likely to have been soil and water movement over time, and especially after heavy rainfall. The displacement may have been exacerbated by the leaking of the storm water pipe, which in turn, may have been cracked at the join by a combination of root, soil and water pressure.
38The minor displacement of two small pieces of paling nailed to the trunk has not made the fence dysfunctional.
39Given the relatively minor nature of the damage and the nature, location and condition of the wall, I consider they do not warrant an order of the Court, particularly an order to remove the tree (and subsequent restoration of the fence).
40While I note that both parties agree that the trees should be removed, on the evidence before me, this is not something with which the Court can concur. This does not prevent the respondents from making an application under Willoughby Council's Tree Preservation Order.
41Similarly, for the applicant, as discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.