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.