Awad v Hardie [2010] NSWLEC 1258 | Case summary

JUDGMENT 1 This application pursuant to the trees disputes between neighbours act 2006 has an unfortunate history. There have been two previous attendances at the site - on 11 June when the survey information that had been presented by the applicant was shown to be in competently prepared; and, on the second occasion on 23 July, when a further survey that had been prepared by the same surveyor was also shown not to have been prepared in accordance with the directions earlier given by the Court. 2 An interim decision was given on that occasion (see Awad v Hardie [2010] NSWLEC 1213) dealing with the requirements survey information for trees on the boundary in order to establish where the tree is principally located for the purposes of dealing with the jurisdictional question under s 43 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). After the second hearing, the surveyor who had undertaken the earlier two inadequate surveys conducted a further survey that now establishes that 35% of the trunk of the tree at the point where it enters the ground is located on the applicant's property and 65% of the trunk of the tree at the point where it enters the ground is located on the respondent's property. Copies of the three surveys, from earliest to latest, are reproduced below:

3 The final of these three surveys established we have jurisdiction to move on and consider the other necessarily pre-requisite jurisdictional questions that arise under s 10(2) of the Act. Those are matters of whether - first; the tree has caused; second, the tree is causing; or, third, the tree is likely in the near future to cause damage to the applicant's property; and, finally, whether it is a likelihood of injury to any person. Unless one of those facts is established, the Court has no jurisdiction to make any orders with respect to the tree. 4 In this case, the applicant presses that all four of the jurisdictional tests under s 10(2) are satisfied. First she says that the tree has caused damage to her property. In this regard she relies on two matters. First, the statement contained in a report by Sheriton Homes Pty Limited dated 18 January 2010 that the evident internal cracking of the cornice and gyprock ceiling of the kitchen and upstairs bedroom adjoining the concrete pathway in the affected eastern wall have been caused by the tree and, second, that a preliminary excavation of the affected area indicates the root system of the tree has penetrated and is indeed lifting the concrete path adjoining the residence on 14 Park Street. 5 We have inspected the property and we have seen the internal cracking. We have also inspected the concrete pathway said to have been lifted by roots of the tree. We make the following observations concerning these matters. First,there is minor cracking in the south-eastern corner of the cornice of the kitchen and the bedroom above but set slightly back from that kitchen and there is also cracking to the cornice in the north-eastern corner of one of those rooms. Second, there is no cracking, whatsoever, evident in the external face brickwork of the building. 6 With respect to what is described as being lifting of the concrete path, we have examined each of the expansion joints in the concrete path together with the two elements of piping that pass through those concrete slabs. There is no evidence of pinching of the expansion joints of the concrete slab or of any of the piping that passes through any of those slabs. On the basis of our inspection, we cannot be satisfied that the trees have caused the internal damage to the house and we are not satisfied - despite the statement of Sheriton Homes - that there is in fact any external damage to the pathway. 7 During the of course of the final phase of today's hearing, Ms Awad indicated, in response to a question, that the gutters in the vicinity of the downpipe in the south-eastern corner of the property have blocked and have spilt back out of the guttering. 8 If we are wrong and the internal damage has been occasioned by the blocking of the gutters by leaves and other detritus from the tree and that that has led to the internal cracking as a consequence of water impact on the internal framing of the property, that will satisfy the jurisdictional tests but, as a matter of discretion, causes us to consider whether or not ordinary prudent maintenance of the gutters the property would have prevented that occurring. 9 The Court has published a tree dispute principle in the case of Barker v Kyriakides [2007] NSWLEC 292 that says, that in the ordinary course of events, those who have the benefits, both environmental and aesthetic, of trees in urban areas,bear the responsibility to undertake ordinary reasonable maintenance of gutters, paths, gardens and the like and that the ordinary deposition of nuts and berries, fruit, leaves, twigs and other minor detritus from trees - even if causing damage - will not, as a matter of discretion, cause the Court to intervene and order intervention with or the removal of any tree. 10 As a consequence, we are satisfied that, if damage has in fact been occasioned because of the gutter blocking, it is not a matter upon which we should intervene to make any order with respect to the tree. That disposes of the first two tests under s 10(2)(a) of the Act. 11 The third test is whether it is likely that the tree will cause damage in the near future to the property. The roots that are said to be the risk have not been exposed. Given what we consider to be the significant deficiencies in the Sheriton Homes letter of 18 January (on our factual observation of the property), we are not satisfied that the assertion that there is likely to be the damage in the future can possibly be founded on that letter (as it asserts that there is currently significant structural damage to the residence being caused by the tree - structural damage of which we have seen no evidence during the course of our inspection of the site. 12 The Court has considered, in the case of Yang v Scerri [2007] NSWLEC 592, what might be a reasonable period of time to be likely in the near future for the purposes of the third of the tests under s 10(2)(a) and that is about twelve months from the date of the matter being dealt with by the Court. We are not satisfied - as there is no visual evidence of any damage of any significance whatsoever to the structure that can be attributed to the tree - that we can conclude that it is likely to damage the house in the next twelve months or so. 13 We turn now to the question of the deposition of the berries and the like from the tree. We take the applicant's case at the highest and therefore accept, for the purposes of this decision, that those berries are noxious and may be a risk of injury to young children. However, we return, as a matter of discretion, to the matters dealt with by the Court in Barker v Kyriakides.Applying that tree dispute principle here (even accepting, for the purposes of this discussion, that the tree is a risk of injury to any person as a result of fruit poisoning), as a matter of discretion, that should be dealt with by ordinary maintenance of the property. As a consequence, even accepting the applicant's case at the highest on that point, we would not be minded to order any intervention with or removal of the tree. 14 With respect to the fence, we observe that the fence had been constructed of Colorbond at the time of construction at the applicant's house. It has been constructed in a fashion designed to accommodate the tree. It does not appear to have been soundly constructed but it has proved adequate for the purpose of providing a divider between the properties. The fence is necessarily subject to the applicant's reinstatement of those portions of the fence that had been removed for the purposes of the survey. However, we see no reason to make any order, as a matter of discretion, even if we were to hold that there has been damage to the fence occasioned by the tree rather than the incompetence of its original construction. The consequence of all that is that we do not propose to make any substantive orders in these proceedings and we dismiss the application. 15 However, we observe, in conclusion, that, in the case of Hinde v Anderson and anor [2009] NSWLEC 1148, the Court dealt with the question as to what might provide a basis of some future application if circumstances concerning the tree were to change and a proper basis for a further application based on that change has been demonstrated to the Court. The circumstances of the principles discussed in Hinde v Anderson also apply in these circumstances. Tim Moore David Galwey Senior Commissioner Acting Commissioner of the Court

Awad v Hardie

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Judgment (12 paragraphs)

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