//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2013] NSWLEC 1225
Land and Environment Court (NSW)
2013-11-18
Original judgment source is linked above.
Judgment 1COMMISSIONER: Ms Tolkin, the applicant in these proceedings, owns a property in Vaucluse. She has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of up to four Cupressus macrocarpa 'Brunniana' (Golden Brunning Cypress) trees at the respondents' expense and the payment of compensation of $2000 being the applicant's insurance policy excess. 2The application is made on that the basis that during a storm on the evening of 23 February 2013, the applicant's dwelling sustained significant water damage including the collapse of part of a ceiling and associated fittings. The cause of the ingress of water was found to be the blocking of a box gutter by debris from one or more of the Cypress trees. The cost of the repairs was in the vicinity of $25,000. 3Ms Tolkin is concerned that unless the trees are removed, the risk of future water damage remains. 4The respondents, Mr and Ms Speiser, do not wish to remove the trees as they value them for privacy and general amenity however they are content for the applicant to remove any branches that overhang the applicant's property.
Relevant background 5In November 2001 Ms Tolkin purchased a newly constructed dwelling in Vaucluse in which she now resides with her husband and three children. At that time, the four Cypress trees were growing on the adjoining property to the southwest, along the common boundary. 6Mr Tolkin notes in his statement of evidence that when the family moved into the property, the trees were much smaller than their current size. He states at [7]: The Trees overhung our house to a lesser extent. He also notes that the trees provided a screen between the parties' properties. 7In their individual statements, the Tolkins describe a situation in 2002 when they noticed a small amount of water running down the inside wall of their lounge room. Mr Tolkin arranged for a builder to inspect the property. The builder advised that the leak arose from an overflow of the gutters and that there were too many 'pine needles' in them. He stated that the gutters would need to be cleaned regularly or there will be problems. 8There is no evidence that this leak was brought to the respondents' attention. 9Ms Tolkin states that the gutters were then cleared once a fortnight. 10According to the Tolkins, in 2004 there was a large downpour and the lounge room leaked again. The ceiling directly below the trees was damaged and required replacing. Mr Tolkin found many pine needles in the gutter; the debris described as being 'wet and fixed together' thus preventing water flow. 11After this leak, Mr Tolkin states that he went to see the Speisers. His statement records the words to the effect of: Mr Tolkin: "Can't we do something about the trees? The pine needles are blocking my gutters and causing water leaks." Ms Speiser: "You can cut the branches which are on your property. This is your problem." 12Ms Speiser's affidavit makes no mention of this conversation and in oral evidence she stated she had no recollection of the 2004 visit. 13In late 2004, early 2005 Mr Tolkin engaged a roofing engineer to install an additional overflow in the gutter. He states that the additional outlet improved the drainage but was not a complete fix and that when he cleaned the gutters after heavy rain he continued to observe pine needles forming dams within the gutters. 14As stated above, late in the evening of 23 February 2013 there was a storm with heavy rain and strong winds. Annexure A in Ms Speiser's affidavit is a copy of an ABC news article "Freak storms damage of hundreds of homes". The article, dated 24 February 2013, describes properties in Kiama, Narellan and Maroubra as being the hardest hit with Randwick also badly affected. It refers to heavy rain and winds gusting up to almost 100km per hour. The swathe of damage was relatively narrow. While Vaucluse is not listed, it is reasonable to conclude that this was the same storm event experienced by the Tolkins. 15Photographs in the application and in the Tolkins' statements illustrate the damage caused to their dwelling as a result of that storm. One photograph shows debris from one or more of the Cypress trees in the gutter near an outlet. The photographs were taken on 24 February. 16On 24 February, at about 10.00 am, the Tolkins visited Ms Speiser to inform her of the damage and the effect of the 'pine needles'. The application claim form and the individual statements of Mr and Ms Tolkin and Ms Speiser record versions of the conversation. Mr Tolkin stated that in the light of the damage and the blocking of the gutters by debris from the Cypress, all four trees should be removed. Ms Speiser recalls asking whether the branches could be just cut back but states that Mr Tolkin insisted on the removal of the trees. It appears that there was a discussion about the sharing of costs. Ms Speiser stated that she needed to discuss the matter with her husband and make some enquiries. 17The application records that later on the 24 February, Ms Speiser contacted the Tolkins and advised them that she and her husband were opposed to removing the trees but would not object subject to the satisfaction of a number of conditions. Ms Speiser's affidavit disputes that this occurred and it appears from the Tolkins' statements that it was some days after the 24th when further contact between the parties was made. 18The subsequent conversation was to the effect that the Speisers did not want to remove the trees but would do so if the Tolkins agreed to pay for the removal and replacement of the trees. Ms Speiser advised Ms Tolkin that an application would have to be made to council. 19In March 2013, Ms Tolkin, on behalf of Ms Speiser, completed an application under Woollahra Council's Tree Preservation Order (TPO). The Speisers signed the relevant sections concerning owner's consent. Both parties attached letters to the application. Apart from raising the issue of leaf litter, the Tolkins' letter to council includes comments about the 'invasive' nature of the trees, the obstruction of light, consequential build up of mould and the impacts thereof on the health of the occupants. 20Prior to the lodging of the application, Mr Andrew Simpson, Tree Team Leader, Woollahra Council, undertook a preliminary inspection of the trees. This was done in the company of Ms Speiser and Ms Tolkin. Mr Simpson advised that approval for removal was likely. 21The application was lodged and subsequently determined on 3 April 2013. Permission was granted for the removal of the four trees on the condition that four replacement trees with a minimum container volume of 100 litres, to be selected from a short list of three listed species, be planted. 22Ms Speiser states that during this time she made further investigations in regards to the direct and indirect costs of removing the trees and replacing them with mature specimens. She became concerned that she would lose her privacy and that it would take many years for that privacy to be regained. 23The Tolkins' statements indicate that Ms Speiser wished them to pay for her landscaper to supervise the planting of the trees, and they did not agree. From this point onwards, the discussions between the parties reached an impasse and the matter is now before the Court. The Tree Dispute Application was filed on 13 August 2013. 24In May 2013 Mr Tolkin had additional overflows installed in the guttering system. His recollection of his conversation with the builder that installed them is: Builder: "I can install the additional overflows but there is no guarantee that it will fix your problem."
The assessment process 25In applications under Part 2, the key jurisdictional tests are found in s 10(2). This states that the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. Section 10(2) must be applied to each of the trees about which an application is made. This application does not concern injury. 26In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280, Preston CJ at [176] and [179] states that the Act requires a nexus between the tree the subject of the application and the damage to the property. It is sufficient if the tree is 'a cause' of the damage. 27If any element of s 10(2) is satisfied for any of the trees, the Court's power under s 9 of the Act to make any orders it thinks fit to remedy, retrain or prevent damage to the applicant's property as a consequence of that tree, is engaged. Before determining what, if any, orders should be made, the Court must consider relevant matters under s12 of the Act.
The trees 28The four trees are growing along part of the north-eastern boundary of the respondents' property. The trees are numbered from southeast to northwest, T1 being the southernmost tree. Parts of T1 and T2 overhang the western corner of the applicant's dwelling that is closest to the common boundary. 29Both parties engaged an arborist to provide an expert opinion. Mr Tony Lydon prepared a report for the applicant; Mr George Palmer prepared a report for the respondents. Both arborists were present at the on-site hearing. 30The arborists agree that the trees are healthy, mature specimens with no significant structural defects. Largely because of their codominant canopy, Mr Lydon treats the trees as a single entity. 31Mr Lydon recommends the removal of all four trees. In his opinion this species has a propensity to accumulate fallen leaf litter on the tops of horizontal branchlets. This debris is then flicked off the branches in gusty, windy weather or washed off the branches by rain, presumably, in this case, into the applicant's box gutter. Mr Lydon stated that the direction of wind is not particularly relevant given the way branches move when buffeted by gusts of wind. 32While Mr Lydon's report does not consider a particular clearance distance from the dwelling, in oral evidence he suggested 4 metres with the trees to be cut at a projected angle of 45 from the western corner of the applicant's dwelling. This suggestion is based on his comments concerning the nature of accumulated leaf litter in [31]. He considers that any less pruning would fail to prevent leaf litter falling into the gutters. 33In his opinion, the extent of pruning required to abate the nuisance caused by the trees would have adverse effects on their appearance, health and condition. He also considers that in the circumstances, the installation of leaf guards is unlikely to be practicable. 34Mr Palmer inspected the trees from the respondents' property only. He considers that trees 3 and 4 are well clear of the applicant's roof. On his assessment, there appeared to be no limbs in excess of 100mm in diameter from trees 1 and 2 overhanging the applicant's roof. 35He states that section 6.2 of the Woollahra Council TPO allows a 2 meter building clearance for limbs up to 50mm in diameter with the consent of the property owner. This pruning does not require council's consent. From his inspection he notes that pruning does not appear to have been carried out for some time and that small diameter foliage has encroached above the roofline. 36In Mr Palmer's opinion, removal is unnecessary and pruning to the extent permitted by council, and carried out by a suitably qualified arborist in accordance with AS4373 - Pruning of Amenity Trees, would suffice. 37The arborists disagree as to the amenity provided by the trees.
The gutter 38The applicant's dwelling has a slightly sloping metal roof concealed behind a parapet. The parapet wall forms the outer edge of a system of box gutters around the majority of the perimeter of the roof. There are no gutter guards. 39In October 2013, Mr Tolkin engaged Dr Bala Muhunthan of Neilly Davies Consulting Engineers to inspect and report on the adequacy of the storm water roof drainage system. The stated purpose of his report was to discuss the initial inspection carried out on 1 October and ' to provide an expert opinion in regards to the effects of the pine needles coming from the overhanging tree to storm water roof drainage and the effective adequacy especially with the blocking of the roof outlets in high rainfall events'. Dr Muhunthan was not required for cross-examination so I rely on his written report. 40Dr Muhunthan relies in part on information gathered by the owner at the site meeting. He states that:
Submissions 43Mr Wilson for the applicant contends that there is overwhelming evidence of the causal nexus between the trees and the damage to his client's property. He cites the Tolkins' statements and the reports of Dr Muhunthan, the builder and Mr Lydon. Therefore, he argues, the Court's jurisdiction is engaged. 44Mr Wilson submits that the respondents will undoubtedly argue that the Tree Dispute Principle published in Barker v Kyriakides [2007] NSWLEC 292 should apply. However, he maintains that the circumstances in this matter are quite different to those in Barker and that as a matter of discretion, the Principle has no application. 45Relevantly, the Tree Dispute Principle in Barker states: 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. 46In this regard, Mr Wilson argues that the debris in this case has caused actual and serious damage. Secondly, the Tolkins, at their own expense, have regularly cleaned their gutters and it cannot reasonably be concluded that such maintenance has been inadequate or should be increased. He also relies on Mr Lydon's opinion and Mr Tolkin's observation that the most likely cause of the damage was that large quantities of dead material had accumulated in the tree and were then simultaneously deposited onto the roof in large volumes as a result of the heavy rain and strong winds. 47He submits that apart from having one or two people up on the roof during wet and windy weather to clear the debris as it fell, something that would be dangerous, the only way to eliminate the problem is to remove the trees. In the alternative, having someone shake the leaves out of the trees on a regular basis is also impractical. 48Mr Wilson contends that the property damage was unavoidable and that a recurrence remains unavoidable unless the trees are removed. 49In regards to the discretionary matters in s 12 of the Act, Mr Wilson considers that the respondents' trees are close enough to the Tolkins' residence to cause the damage. He maintains that significantly, the council would not have approved their removal lightly or without consideration of the alternatives and impacts. 50While pruning was considered, he contends that Mr Palmer did not inspect the trees from the applicant's roof and therefore couldn't truly determine the impact. He relies on Mr Lydon's opinion that the required extent of pruning would have unacceptable impacts on the trees and their amenity. 51Mr Wilson also reiterates the actions taken by the Tolkins, in particular the routine cleaning of the gutters, the installation of additional outlets, and the raising of the issue of pine needles with the respondents and the respondents' subsequent failure to take any action. 52Mr Wilson concludes that the Court should make the orders sought by the applicant. He argues that unless the trees are removed, there is a very real prospect of further damage in the near future, that is, within the next 12 months as discussed in Yang v Scerri [2007] NSWLEC 592, especially given the "voracious" nature of the trees. He also considers that the respondents should meet the costs associated with replacing the trees. 53Mr White for the respondents contends that there is no evidence that trees 3 and 4 have caused any damage to the applicant's property and therefore the Court has no jurisdiction to make any orders for any intervention with them. 54Mr White states that the arborists agree that trees 1 and 2 are healthy, with no structural defects and with no history of branch failure. He submits that healthy trees shed needles and the Tree Dispute Principle in Barker certainly applies in this matter, which he contends is not an exceptional case. 55In regards to the discretionary matters in s 12, Mr White maintains that the benefits of the trees and the amenity they provide must be balanced against any interference with them. He considers that removing the trees is disproportionate to the impact they have on the applicant's property and that pruning to the extent recommended by Mr Palmer is sufficient. Mr White contends that it is unnecessary for the Court to make orders as the Tolkins have owners' consent for pruning and can therefore prune the trees whenever they like.
Consideration 56With the benefit of inspecting the trees and the site, and having regard to the evidence and the submissions, I am satisfied that debris from trees 1 and 2 has contributed to the damage sustained to the applicant's property on 23 February 2013. As s 10(2) is met for these trees, the Court's powers to make orders with respect to them is engaged. 57In regards to trees 3 and 4, these trees do not directly overhang the applicant's dwelling. While I agree that the canopies are co-dominant, that is they effectively form one canopy, they nonetheless occupy discrete portions of that canopy. I observed that Tree 2 separates Tree 3 from the applicant's dwelling. 58While I accept that some accumulated material might be flicked from trees 3 and 4 in gusty winds, I am unconvinced by Mr Lydon's assertion that any significant quantity of material from these trees would be shed into the box gutter in question. With the arboricultural expertise I bring to the Court, in my view the architecture of closely layered horizontal branches would limit the extent to which material could be dispersed. 59Mr Lydon stated that the direction of the wind was not critical however, it would seem logical for any wide dispersal of material from trees 3 and 4 that there would have to be exceptionally strong winds from the north or northwest. No evidence was adduced as to the likelihood of these conditions or whether the wind on 23 February came from that direction. Given the ABC news clipping, it would seem that the wind direction was most likely from east or west of south. 60Similarly, while I agree that heavy rainfall would wash accumulated material off the trees, the direction of fall would be primarily downwards rather than many metres to the southeast. In this regard, the most likely sources of the debris in the gutter are the branches that overhang it. These branches belong to trees 1 and 2. 61Therefore, I am not satisfied on the evidence that trees 3 and 4 have contributed to the damage to the applicant's property. As s 10(2) is not satisfied for these trees, the Court has no jurisdiction to make any orders for any intervention with them. 62However, if I am wrong in this and some debris from those trees did indeed travel the distance and find its way into the gutter, as a matter of discretion no orders would be made for any intervention with the trees essentially for the reasons given above and their location relative to the relevant portion of the applicant's dwelling. 63In considering what, if any, orders should be made with respect to trees 1 and 2, the following matters under s 12 are relevant.
Location (s 12(a)) 64The trees adjoin the common boundary between the parties' properties. The trees pre-existed the construction of the applicant's dwelling, the dwelling being constructed close to the boundary and therefore close to the trees. The applicant purchased a dwelling constructed close to the trees. The closest trees to the affected portion of the applicant's dwelling are trees 1 and 2 and therefore it is reasonable for me to find that should any intervention be required, it must be limited to these trees.
Council controls and pruning (s 12(b)(b2)), actions of the parties (s 12(h)) 65As discussed, Woollahra Council has given the respondents permission to remove the trees if they wish to do so. There is no obligation for a tree owner to act on that consent. As stated by Mr Palmer, and included in the Tolkins' statements, section 6.2 of the Woollahra Council Tree Preservation Order 2006 permits the following pruning: (6.2) Pruning This clause only allows pruning of a tree if it is carried out in accordance with Australian Standard AS4373 - 1996, 'Pruning of Amenity trees' and WorkCover NSW Code of Practice 'Amenity Tree Industry' - 1998. If a tree meets the following conditions, Tree Preservation Order consent is not required for (relevantly): (a) The removal of dead branches from a tree. (b) Selective pruning, being pruning to remove branches no larger than 50mm diameter at the nearest branch collar or junction to clear:
Other values 71While the arborists disagree as to the amenity value of the trees, the respondents value them as a privacy screen. There is no evidence of any particular historical, cultural, scientific, social, ecological; value. They have little intrinsic value to public amenity.
Other matters (s 12(j)) 72Dr Muhunthan's report appears factually incorrect. As reproduced in [40] he states that despite the installation of additional outlets in 2005 and 2013, flooding still occurred. The 2013 outlet was installed in May 2013, the major flooding occurred in February 2013. 73Dr Muhunthan has not provided any technical discussion of the adequacy of the gutters in terms of slope or capacity; there is no indication of the depth of the inner wall of the box gutter or its 'freeboard. His statement about the adequacy of the system is simply a reference to "construction drawings" which, in his report, are A4 copies of 'Ground Floor Plan' and 'First Floor Plan'. There are no details in regards to the construction of the box gutter in question. He refers to a comparison of similar properties but provides no details of these properties. I find that little weight can be given to this report. 74Similarly, there is no discussion of measures such as various forms of gutter guards. While Mr Lydon considers the installation of gutter guards to be impracticable, he provides no explanation of this opinion.
Conclusions and orders 75Although I am satisfied to the extent required by s 10(2) that the Court's jurisdiction is engaged for trees 1 and 2, as a matter of discretion, no orders will be made for the respondents to take any action to remove or prune the trees or to pay any compensation arising from the storm event on 23 February 2013. I agree with Mr White that removal is a disproportionate response to the problem. 76In respect of the Tree Dispute Principle in Barker, and the other discretionary matters in s 12 of the Act, I note that having instigated regular clearing of the gutters, the applicant's dwelling suffered no flooding damage between 2004 and February 2013, a period of almost 9 years during which time it is likely that there have been other periods of intense wet and windy weather. I note that the applicant's builder and engineer recommend regular clearing of the gutters. 77However, during that time the applicant took no action to deal with the source of the problem by minimising the extent of leaf drop by pruning the overhanging branches. 78Critically, after the 2004 flooding event when Mr Tolkin states he drew the issue to the respondents' attention, he did not request any specific action. It appears from the oral and written evidence that permission to remove overhanging branches was, or would have been given by the respondents. It was open for the Tolkins to engage a suitably qualified arborist to undertake the necessary pruning in order to minimise the impact of leaf drop into the gutters and to avoid any undue impact on the trees. 79To this end, I cannot agree with Mr Wilson's submission at [48] that the damage was unavoidable. In my view, the applicant had the necessary means of avoiding the damage, and at the very least, minimising the damage during severe weather events. 80The applicant has the consent of the respondents to undertake the pruning of overhanging branches and the Woollahra TPO permits the clearance of a roof or building line. Therefore the means of abating the leaf drop and preventing further damage rest with the applicant. 81Therefore, as a consequence, the Orders of the Court are: (1)The application is dismissed. (2)All exhibits except Exhibit A are returned.
Judy Fakes Commissioner of the Court 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: 26 November 2013
Tolkin
Speiser & anor