Tree Principle - Ordinary Maintenance of Trees In the Urban Environment

In providing advice concerning issues arising under the Trees (Disputes between Neighbours) Act, arborists should be aware of the "Tree Principles" that the Land and Environment Court has established. 


The first of these principles was announced in the case of Barker v  Kyriakides, (2007) NSWLEC 292. A link to the full text of the judgement is provided at the end of this post. 


In Barker, the Applicant sought to have a large eucalypt tree removed on the basis that it was dropping leaves and pieces of small deadwood into his gutters and the open space at the rear of his property.  The Applicant complained that because he was a person of advanced age, he was unable to climb to his roof and clean the gutters himself. In addition to removal of the tree, he asked the court to require his neighbours to compensate him for the cost of hiring a contractor to clean the gutters.


The Court found that the tree in question was in good health and did not contain an abnormal amount of deadwood . The tree's canopy was well clear of the houses in the area. Furthermore, there was no evidence that significant branch drop had occurred in the past, or any indication that there was an likelihood of significant branch failure. 


Consequently, the Court found that the criteria that must be satisfied under section 10(2) to justify removal of a tree - namely, that the tree had caused, or was likely to cause property damage or posed a risk of injury to persons - were not present. It thus refused the application for removal of the tree.


The Court also used the case to state as a general Tree Principle that the fall of minor debris from a tree will not be sufficient grounds for an order requiring the removal of the tree.  The Court articulated this Principle in the following terms:


"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."


It is also of note that the Court declined to award the Applicant compensation for the cost of cleaning his gutters and yard.


http://www.lawlink.nsw.gov.au/lecjudgments/2007nswlec.nsf/c45212a2bef99be4ca256736001f37bd/350a2bce12fd0ce9ca2572e80076651e?OpenDocument