Abdishou v Khoury

CASES CITED: Robson v Leischke [2008] NSWLEC 152 Barker v Kyriakides [2007] NSWLEC 292

APPLICANT Mr Y Abdishou [litigant in person] LEGAL REPRESENTATIVES:

RESPONDENTS Mr and Mrs Khoury [litigants in person]

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Edensor Park against the owners of trees growing on an adjoining property. 2 The applicant is seeking the Court to order the regular pruning back to the fence line or beyond of two trees that overhang his property. The trees are a Schinus areira (Pepper Tree) and a Eucalyptus moluccana (Grey Box). 3 The applicant is seeking these orders as he contends that: * leaves and other material falling from the trees create a mess on a newly installed concrete apron abutting the western boundary of the applicant's property, * as a result of the leaf drop, particularly from the Pepper Tree, the concreter was unable to completely seal part of the slab, * there may be potential damage from the roots of these trees to a drain, * leaves of the Grey Gum block the gutters necessitating regular clearing, and * whilst not raised in the application, parts of the trees may fall onto the applicant's property and cause injury to someone.

4 With respect to the drain, it was determined at the on-site hearing that this was located on adjoining properties and not on the applicant's property. Therefore it is beyond the jurisdiction of the Court to determine anything regarding the drain as s 7 of the Act applies to 'property on the land', that is, the applicant's land. 5 The trees were inspected from both properties. The Pepper Tree was planted by the respondents about 23 years ago. The trunk is approximately 3m from the dividing fence between the two properties. A portion of the tree overhangs the applicant's property by several metres. It is a healthy tree with no obvious structural defects. The portion that overhangs has no dead wood and appears structurally sound. 6 We observed some leaves and other material from this tree on the concrete slab beneath the tree. We noted some areas where the sealant was patchy but there was no material damage to the slab in these areas. We saw no damage that had been caused by this tree to the applicant's property. The applicant was pressed to explain to us what damage he considered could be caused by the tree. The applicant could not provide any answers to the questions but stated that he did not think it was reasonable for any branches of the Pepper Tree to overhang his property. He further stated that he was unable to predict what might happen in the future. 7 The respondents stated that the Grey Gum was present when they purchased their property in 1981 and it was much the same size then as it is now. Given the size and species of tree, the Grey Gum is likely to be a remnant of the original vegetation of the area. There is a nearby reserve in which many of these trees are growing. 8 A portion of one of the stems of this tree has been incorporated into the dividing fence between the two properties. 9 When viewed from the respondents' property, it is clear that the tree is substantially on their property and therefore within the jurisdiction of the Court. 10 At approximately 1m above ground, the trunk bifurcates. The smaller trunk arising at that height is that which grows partly above the applicant's property and which forms the basis of the application. 11 The tree is healthy with no obvious structural defects and the attachment between the stems appears sound. There are several dead branches in the stem closest to the applicant's property.

12 The applicant's main concerns with this tree are that it encroaches on his property and that leaves and bark fall onto his property and especially into the gutters of the house. No evidence was provided of any failure of any significant branch or part of the tree onto the applicant's property. 13 The applicant contends that the leaves and debris in the guttering of his house have come from the eucalypt and that the gutters are regularly cleaned. The applicant pointed to the gutters as evidence of this however, apart from leaves and other material, we observed grasses growing from the gutters. This would indicate to us that the gutters have not been cleared in some time. 14 The respondents contend that pruning the trees back within their property will not prevent leaves falling into the applicant's property. 15 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned 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. These tests must be applied to each of the trees subject to the application. 16 With respect to the Pepper Tree, the applicant could not show us any evidence of any damage caused by this tree. We saw nothing that would lead us to conclude that this tree could, in the near future, cause damage to property or injury to any person. 17 With respect to the concerns raised by the applicant, the Trees (Disputes Between Neighbours) Act 2006 is restricted to actual or potential actual damage being caused to property or injury to persons. In Robson v Leischke [2008] LEC 152 at para 56, Preston CJ states that mere encroachment is not damage, in para169 that damage must be proved and in para 171 annoyance or discomfort to an applicant by such things as leaves and flowers blown onto their property from their neighbour's land is not "damage to property on land' within s7 of this Act unless they also cause damage to property on the neighbour's land.

11 In Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This applies in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. 18 Therefore as none of the tests under s 10(2) are satisfied with respect to this tree, the Court has no jurisdiction to make an order for any intervention with this tree and therefore this element of the application is dismissed. 19 With respect to the Grey Gum, the tree dispute principle in Barker applies to shedding of leaves and bark from the Grey Gum and no order will be made with respect to this element of the application. 20 However, we find that the portion of the Grey Gum that overhangs the applicant's property does contain dead wood of a size that, when it fails, could cause injury. Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order with respect to this tree. 21 In making an order, the Court must consider a number of matters under s 12 of the Act. The relevant clauses in this case are: (a) the tree is substantially located on the respondents' property (d) As the tree is highly likely to be a remnant of the original vegetation, it will contribute to the local ecosystem and to biodiversity. (e) The tree contributes to the scenic value of the land on which it is situated. (f) The canopy of this tree can be seen from the surrounding streets and forms a visual link with a nearby reserve. Therefore the tree has some intrinsic value to public amenity. (h)(ii) Any steps taken by the applicant or the respondents. On 26 July 2010, the respondents applied to Fairfield City Council under the council's Tree Preservation Order to remove both trees. The reason given by them on the application form (part of exhibit 1) was "neighbour complaints". The trees were inspected by a council officer on 27 July and permission was given for the removal of dead wood from the Grey Gum and the pruning of the Pepper Tree to clear a shed on a neighbouring property (not the applicant's), some minor raising of the crown and removal of dead wood. The respondents themselves pruned the Pepper Tree about 1 month ago. It appears that the Grey Gum was not pruned.

22 Returning to s 10(2) and balancing the considerations in s12, we consider that an order requiring the removal of dead wood from the Grey Gum is appropriate in the circumstances. Given the structural soundness of the tree, its health and its ecological importance, we see no justifiable reason to order any pruning beyond the removal of dead wood.

23 The Orders of the Court are: 1. The application is upheld in part. 2. The application to prune overhanging branches of the Pepper Tree is dismissed. 3. The respondents are to engage and pay for an AQF level 3 arborist to remove deadwood down to 30mm in diameter from the Grey Gum. This is to be limited to the portion of the tree that overhangs the applicant's property to a distance of 2m within the respondents' property (measured from the dividing fence). 4. This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. 5. If required by the arborist, the applicant is to provide all reasonable access for this work to be carried out in a safe and efficient manner. 6. The works are to be completed within 60 days of the date of these orders. 7. The applicant is to be given at least 2 working days notice of the commencement of the works.

J Fakes Commissioner of the Court

P Hewett Acting Commissioner of the Court

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