Bailey v Gould

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1Two Jacaranda trees ( Jacaranda mimosifolia ) grow in the rear of a property at Newtown. One of them is some 3 m or so tall and the other is some 10 or 11 m tall. The younger of the trees is clearly a self-sown offspring of the larger and the larger tree is, on the evidence from the tree owner, at least 25 years old. 2There are a number of matters that we need to deal with in these proceedings. At the outset we observed one curious matter about the larger of the two trees. At approximately fence height, on the far side of the tree away from the applicant's side of the fence, is a perfectly round hole some 4 cm or so deep and ~ 1 cm in diameter. This hole is similar to other perfectly round holes that have been drawn to our attention in a number of other cases in the past - they are inconsistent with any known form of borer that might inhabit this tree and entirely inconsistent with any other minor borer activity that it might have taken place in the past in the tree. We, however, draw no conclusions concerning the causation of that hole. 3We also observe that there are concerns expressed by the applicant concerning termites that might have inhabited the tree and birds that might, in her submission, have fed on the fruits of the tree and defecated on her property. We observe, consistent with the decision of the Court in Dooley & anor v Nevell [2007] NSWLEC 715, that these are not matters caused by the tree and are therefore entirely outside the jurisdiction of the Court under the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). 4We now turn to deal with matters that are relevant to our consideration of the tests under s 10(2) of the Trees Act. These are the questions of whether the tree or trees have caused; are causing; or are likely in the new future to cause damage to the applicant's property; or whether they are a likely cause of injury to any person. 5With respect to the first of the two trees - that is the smaller, self-sown one which barely rises beyond the top of the fence - although the applicant suggests that at some stage in the future it might reach the power lines some 4 m or so above it and interfere with them, this is, in our view, entirely fanciful in the present circumstances. 6There is no damage that has been caused by this tree; there is no damage currently being caused by it and, in our view, there is no likelihood of that tree causing damage in the next 12 months that being a test that has been adopted in the past by the Court consistent with the guidance given in Yang v Scerri [2007] NSWLEC 592. As a consequence there is no jurisdictional basis whatsoever under s 10(2) of the Trees Act to contemplate interference with, let alone removal of, the smaller of the two Jacaranda trees. 7We now turn to the larger of the two Jacaranda trees. 8There are a number of matters put by the applicant satisfying tests under s 10(2) of the Trees Act with respect to this tree. Some of them that can be disposed of comparatively easily. The first was raised with respect to the possibility of future damage by tree roots to the concrete slab of the applicant's carport. We observe that the tree has been there for over 25 years; there is no present or past damage caused by the tree roots and there is no basis upon which we could conclude that it is likely that the roots would cause damage in the next 12 months or so. There is, therefore, no jurisdiction on the basis of the tree roots for the Court to consider interference with or the removal of the tree. 9With respect to leaves, fruits, fronds and flowers of the tree that are deposited on the roof of the carport and on the roof of the applicant's tool shed, there is no instance of past or present damage to which the applicant can point to. There is no likelihood of future damage being caused by them that is observable to us. To the extent that there is a necessity to climb onto her rooves, for the purposes of cleaning them, any risk of injury that may arise from that will not arise from the tree, but will only arise if there are unsafe work practices by any person so doing. 10However, there are three matters that are potentially capable of founding a finding under s 10(2)(a) that there has been damage to the applicants' property in the past - thus warranting us considering intervention with the tree. 11The first is the question of damage to her clothing and linen, occasioned by what she describes as sap, and shown in a number of photographs. We observe that a number of the photos only show stains that are consistent with bird excrement and that is not a matter that falls within our jurisdiction. There is at least one photograph (and possibly a second) that are consistent with the damage caused to linen hung on her clothesline arising from flowers from the Jacaranda tree. The first of those two photographs is reproduced below: 12Each of those photographs shows staining that is linear in nature and the staining shown above entirely consistent only with a flower of the Jacaranda being folded into and subsequently crushed in the linen. Ms Bailey was unable to provide any explanation for the nature of the staining and particularly the photograph that shows crushed detritus from a Jacaranda flower and this purely linear folded stain. It is a matter of some curiosity and is not amenable to any ready explanation short of the fact that the linen has been folded up on that flower and crushed. We draw no conclusion as to whether that was something that took place deliberately or inadvertently. However, it cannot support any finding about damage being caused by the tree. 13The second matter concerns the fence between the two properties. It was Ms Bailey's evidence that it had been displaced at some time in the past - she says by a branch that, we accept, has fallen against it. The fence is inadequately fastened at its eastern end and is capable of being displaced by a finger touch (as was demonstrated during our inspection of the tree owner's property). To the extent that this displacement of the fence may have constituted damage in the past, the damage is minor and indeed is so de minimis as not to warrant our intervention. We further observe that, if the fence were adequately fastened to the adjacent brick pillar, such damage might not have occurred. That is a relevant matter for our determination not to interfere with the larger tree. 14The third matter of damage that is claimed is the question of the displacement of a sewer vent pipe in the south-eastern corner of the applicant's property. We observe, first, that the only thing that retains the pipe to the fence pier is two nails driven into the mortar course of the brick wall - one on each side of the pipe. There is no proper and appropriate attachment of that pipe to that wall. If there had been a proper and appropriate attachment of the pipe to the wall by the applicant, it might not have been pushed over by the falling of a branch from the respondent's tree. 15However taking that at its highest (as representing damage) and enlivening the Court's jurisdiction, that damage is in itself is so minor and inconsequential as not to warrant the making of any order for the interference with or removal of the tree. 16The final matter that is raised by the applicant is the likely risk of injury because of the larger tree growing into the power lines. The difference between the uppermost point of the tree and the closest element of the adjacent powerlines in the public domain is about 3 m. We are satisfied that there is no present likely risk of injury to any person whatsoever as a consequence of that distance between the tree and the powerlines. There is, therefore, no jurisdiction arising under s 10(2)(b) of the Trees Act. 17If we are wrong in our various findings as earlier set out, we observe that, with respect to the dropping of the leaves, fruits, twigs and the like, there is a necessity for actual damage to be proved as discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 and none has been shown. 18Even if we are wrong on this point, we adopt as appropriate the tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292 that says for those persons who live in urban areas and have the environmental and aesthetic benefit of trees there is a responsibility to undertake ordinary routine maintenance and clean up of the fruits, nuts, leaves, berries and other minor detritus from such trees as the price of living in that pleasant environment. 19As a consequence of all the foregoing, the application is dismissed. Tim Moore Senior Commissioner Phil Hewett Acting Commissioner of the Court