Barker v Kyriakides [2007] NSWLEC 292

Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.

It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms:

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. 

The conclusions that we have drawn with respect to the state of tree are as follows:

• the tree is presently healthy and has no obvious defects;
• there is no abnormal amount of deadwood located in it (indeed given the age of the tree and its location in an urban environment, there is, perhaps, a lesser amount of deadwood than might otherwise be expected of such a tree);
• the location of the tree is well clear of the four houses in general area of the tree’s canopy;
• there is no evidence of any past significant branch drop from it; and
• there is no evidence that we can see in the tree that would indicate that there is any immediate likelihood of any significant or major branch failure.