Leigh v Purkis

Representation: Counsel:
D Leigh (Self-represented) (First Applicant)
C Leigh (Self-represented) (Second Applicant)
G Purkis (Self-represented) (Respondent)

File Number(s): 2025/454601

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER: Catherine and David Leigh (the Leighs), of Bowral, have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders for their neighbour, Gail Purkis (Ms Purkis), to prune several trees on her property and to compensate them for property damage caused by one of Ms Purkis’ trees.

2. The onsite hearing allowed the Court to inspect the trees and both properties. The parties were self-represented. The Leighs’ application (Exhibit A) sets out their claim and includes quotes for property repair. Ms Purkis filed a response (Exhibit B) that includes correspondence between the parties, copies of tree removal permits from Wingecarribee Shire Council (Council), and a report from consulting arborist Mitchell Marino, of Tree Live. I also rely on my own arboricultural expertise and experience in making this decision.

Application to Court

3. The Leighs have applied for orders pursuant to s 7 of the Trees Act to remedy and prevent damage to their property. As required by s 7, the trees are on adjoining land.

Notice of the application

4. The Leighs gave notice of their application as required by s 8 of the Trees Act.

Jurisdiction to make orders

5. The orders that the Leighs seek are orders the Court can make at s 9 of the Trees Act, although the Court may make different orders as it sees fit.

Reasonable effort to reach agreement

6. The Leighs have spoken with and written to Ms Purkis identifying their issues with her trees. Ms Purkis has found their communications “unneighbourly”. Nevertheless, I accept the Leighs’ submissions on this issue and I am satisfied that they made a reasonable effort to reach agreement with Ms Purkis: s 10(1)(a) of the Trees Act.

A tree has caused damage

7. The test at s 10(2) of the Trees Act must be satisfied before any orders can be made.

10 Matters of which Court must be satisfied before making an order

(1) …

(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.

8. This test must be applied to each tree in an application before an order can be made for that tree. The Leighs’ application refers to seven trees, but they had underestimated the number of trees in two groups, so their application actually concerns nine trees.

Five cypress trees

9. Five Leyland cypress (Cupressus × leylandii) grow on Ms Purkis’ property, forming a hedge along the common boundary shared with the Leighs. The Leighs’ application shows these as only four trees (T1–T4). The trees’ branches and foliage extend well beyond the boundary, overhanging the Leighs’ driveway to a shed in their backyard, although they do not use that part of the driveway or the shed for vehicles. The trees, which are 9–10 metres tall, have more crown weight over the Leighs’ land than over Ms Purkis’ land. The Leighs submitted that these trees have not caused any damage to their property. The overhang concerns them, as does the possibility of the trees falling onto their property and causing damage, injury or death. The Leighs want the trees’ height reduced by half and their branches and foliage cut back to the boundary.

10. In his tree report, Mr Marino applied the International Society of Arboriculture’s tree risk assessment method, commonly known as ‘TRAQ’. Mr Marino found that the risk of the cypress trees causing damage or injury is low.

11. During my onsite inspection, I observed no significant structural defects in these trees. Their root zones appeared undisturbed. Nothing suggested that the trees are likely to fall over or shed branches. These trees are unlikely to cause damage to the Leighs’ property within the next 12 months, and are unlikely to cause injury to a person. Pursuant to s 10(2) of the Trees Act, it follows that no orders can be made for the five Leyland cypress: see above at [7].

Two maples

12. Two maples on Ms Purkis’ property, close to the common boundary, overhang the Leighs’ shed. In their application, the Leighs identified these as only a single tree (T5). The two trees are a red maple (Acer rubrum) and a box elder (Acer negundo). The trees’ branches were rubbing on the Leighs’ shed roof until Ms Purkis engaged an arborist to prune them. Branches are now well clear of the shed. During the hearing, the Leighs stated that they are now happy with the state of these trees. Mr Marino found that the risk of either maple causing damage or injury is low.

13. I observed no defects that would indicate likely branch or tree failure within the foreseeable future. These maples are unlikely to cause damage to the Leighs’ property within the next 12 months, and are unlikely to cause injury to a person. It follows that no orders can be made for the two maples.

Purple-leaf plum

14. A purple-leaf plum (Prunus cerasifera ‘Nigra’) (T6 in the Leighs’ application) grows on Ms Purkis’ land adjacent to the common boundary, separated from the Leighs’ dwelling by their driveway. The tree’s branches and foliage extend beyond the boundary and overhang the Leighs’ driveway. The Leighs submitted that the tree’s leaves, flowers and fruit fall onto their driveway and pavers, staining the pavers and requiring regular clean-up, and fall into their roof guttering and block their downpipes. They submitted that their pavers become slippery with this debris, creating a slip hazard. They want the tree’s height reduced by half and overhanging branches pruned back to the boundary.

15. While Mr Marino found the risk of this tree causing property damage is low, he found the risk of injury through someone falling on the slippery pavers, or tripping on the tree’s fallen fruit, is high.

16. Even accepting Mr Marino’s finding of a high risk of injury caused by this tree, I would not make any orders on this basis. In Barker v Kyriakides [2007] NSWLEC 292, the Court established the following principle at [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.”

17. I see no reason to depart from that principle in the current proceedings. Damage, such as staining to pavers, and injury can be prevented by reasonable property maintenance. No orders will be made for the purple-leaf plum.

She-oak

18. A tall she-oak (Casuarina sp.) (T7 in the application) grew near the back of Ms Purkis’ property. In May 2025, a long branch overhanging the Leighs’ property fell from the tree, striking the Leighs’ shed and causing damage to its roof and other parts. The tree has since been removed. The Leighs seek $1,200 compensation from Ms Purkis to repair the shed. They provided quotes to support their claim. Ms Purkis does not dispute that the she-oak damaged the Leighs’ shed. Because I am satisfied that the she-oak damaged the Leighs’ property, orders can be made for this tree (s 10(2)(a) of the Trees Act), but only after consideration of the matters at s 12 of the Trees Act.

Consideration of relevant matters

19. The she-oak was close to the common boundary, with branches over the Leighs’ property.

20. Because the tree has been removed, no orders for tree works are required, so s 12 matters regarding the tree’s benefits and any consent requirements do not require consideration here.

21. Most relevant to determining the question of compensation is s 12(h):

12 Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters—

…

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property—

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

…

22. By way of background, Ms Purkis had another she-oak on her property that, as she submitted, died and was removed around 18 months ago. The Leighs submitted that they discussed both she-oaks with Ms Purkis’ partner, Richard Sainsbury, who told them that the trees had short lifespans of around 25 years. The Leighs said they wrote to Mr Sainsbury, who they thought owned Ms Purkis’ property, before the branch fell from T7 onto their shed. The Leighs had copies of their all their correspondence available during the hearing but were unable, when asked, to provide a copy of any such letter prior to the branch falling from T7. Ms Purkis submitted that neither she nor Mr Sainsbury received any such correspondence prior to the branch falling from T7, and that T7 had not been a topic of discussion between the parties.

23. After the branch fell, Ms Purkis and Mr Sainsbury had the fallen branch removed. The Leighs brought the shed damage to the attention of Ms Purkis and Mr Sainsbury. Mr Sainsbury offered to fix it himself, or have a friend fix it. The Leighs refused this offer, and I think reasonably so, on the basis that Mr Sainsbury was not insured for carrying out such work and no warranty would apply to the work. They obtained quotes for repairing their shed.

24. Ms Purkis engaged an arborist to inspect T7 and was advised that the tree was suitable to retain.

25. Soon after the branch fell from T7, the Leighs significantly reduced the height of a hedge along their rear boundary. One end of the hedge was close to T7. Not long afterwards, the upper stem or a high branch of T7 broke and fell onto another neighbouring property, without any impact to the Leighs’ property. Ms Purkis then had T7 removed. Ms Purkis submitted that the reduction in wind protection resulting from the Leighs’ hedge pruning may have contributed to the second T7 incident. Regardless, the Leighs’ claim does not relate to the second incident and T7 has been removed.

26. Bearing in mind the history set out above, no order will be made for compensation. When Chief Justice Preston considered s 12(h) of the Trees Act in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), his Honour found at [222]:

“…

(h)

(i) The evidence of Mr Freeman is that “the tree failed due to a combination of associated storm events, water logged localised soils and root damage from a root pathogen (Phytophthora), which can be attributed to the construction of a retaining wall and site modifications impacting upon the tree’s critical root zone”: Arboricultural Assessment Report, 17 December 2007, p 16, and see also transcript of 20 December 2007, p 19, lines 20-25.

(ii) However, the construction of the retaining wall and the site modifications were carried out by Mr Leischke’s predecessor in title prior to Mr Leischke’s ownership and occupation of the land. The evidence does not establish that any act or omission of Mr Leischke during his ownership and occupation of the land contributed to the damage caused by the tree failing.

(iii) The findings made earlier as to the tree and the cause of its failure and the conduct and knowledge of Mr Leischke establish that Mr Leischke did not create the nuisance constituted by the tree causing physical damage to Mrs Robson’s house. Mr Leischke did not plant the tree, did not take any positive action in relation to the tree or its growing environment that was a cause of the tree’s failure.

(iv) Mr Leischke also did not adopt or continue the nuisance. Mr Leischke had no actual knowledge of any defect in the tree, such as root rot, or in the environment in which the tree grew, such as waterlogged soils. To the contrary, Mr Leischke’s knowledge was that the tree appeared to be a healthy tree and he had not experienced any problems with it. On Mr Freeman’s evidence, the tree would not have shown any obvious signs of stress, poor structural stability or decline to a layperson such as Mr Leischke. Hence, Mr Leischke would not have any constructive knowledge of any problems with the tree.

(v) Having no actual or constructive knowledge of the problems with the tree, Mr Leischke could not be said to be under a duty to prevent or minimise any risk of damage or injury to Mrs Robson or her property. It cannot be said, therefore, that the omission to act by Mr Leischke contributed to the damage caused by the tree failing.

(vi) Equally, no act or omission of Mrs Robson contributed to the damage caused by the tree failing.

…”

27. At [225] of Robson, Preston CJ wrote (with my emphasis in bold):

225 The only person whom it is suggested should pay compensation is Mr Leischke, being the owner of the land on which the tree that caused damage is situated. However, the mere fact that a tree is situated on a person’s land is insufficient reason by itself to justify making that person an insurer of other persons for any harm the tree may have caused to them or their property.

28. Ms Purkis had no reason to expect the branch to fall from T7. On the evidence before me, I cannot be satisfied that any act, or omission to act, by Ms Purkis contributed to the branch falling from T7. Any cost of repairs to the Leighs’ shed will therefore lie with the Leighs. No order will be made for compensation.

Orders

29. The Court orders that:

30. The application is refused.

31. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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