Duxbury v Hewitt

Duxbury v Hewitt - [2016] NSWLEC 1291 - NSWLEC 2016 case summary — Zoe

[6]

The gate

In the application claim form the applicant states: Gate track is being shifted under pressure from tree roots causing the gate to open with difficulty and not to function as smoothly as initially. The tree's pods (approximately 4.5cm-5.5cm circumference) continuously fall into the gate track and damage the gate motor as they prevent the gate from opening. On site the applicant stated that the fruit from the tree collects in the rails and, as the gate slides along, the extra friction causes the motor to strain.
Given that a replacement motor and set of rails is sought, I had assumed that they had been damaged and were dysfunctional. During the hearing I asked the applicant to operate the gate. The gate opened and closed without any problems. I was not shown any displacement of the rails. It appears that the applicant is concerned about future damage.
I am not satisfied on the evidence before me that the tree has caused damage to any part of the gate including the motor and the rails; neither am I satisfied that future damage is likely to be caused in the usual time frame applied to these matters. However, if I am wrong in this I note part of the Tree Dispute Principle published in Black v Johnson (No 2) [2007] NSWLEC 513 at [15] which considers the making of orders when the tree was there first and a structure came later. That principal identifies a number of matters to be considered. It states in part: 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.
While it was reasonable for the applicant to place a gate at the end of the driveway, in this case the choice of type of gate might be questioned given the characteristic of the tree to drop large round fruit.
Also relevant is the discussion of the Court's other long held Tree Dispute Principle discussed in [38] of this judgment.
No orders will be made for any intervention with the tree, or for any replacement of parts, on the basis of the gate. As the applicant is now aware of the possible problems arising from fruit caught in the rails, it would not be unreasonable for him to take reasonable action to prevent damage by regularly clearing the rails. Should further action be contemplated, the Court has taken into account the failure of applicants to maintain their own property (see Zhang & anor v Long & anor [2007] NSWLEC 632 at [94] to [104]).

[7]

The sewer shaft

The applicant confirmed that the sewer is functional but the problem is that the collar and cover are not level. Without the benefit of a spirit level I observed a relatively minor tilt away from the tree and not the "very sharp angle" described by the applicant in the claim form. I observed the plastic cap and the concrete collar to be in good order.
The applicant relies on the notes made by the plumber on the invoice for the inspection carried on 6 April 2016. The note states [as written and in full]: Attended property as inspection opening to properties sewer main was on a sharp angle and owner was concerned a very large tree roots had snapped pipe. The Sewer main shaft bolted trap screw with concrete surround was on an angle and the glue joint had been popped off by the tree roots. The CCTV camera inspection revealed a repair had been done on the piping in the past and the sewer main riser had some deformation to it, usually caused by tree roots pushing pressure on the piping. Around the sewer shaft is the concrete driveway which already has extensive cracking and uplift. If the tree roots entire the sewer system this driveway will need to be cutup to dig up the sewer. I also noticed the neighbours water meter has been eaten by the trees trunk and now is embedded within it. Under my professional opinion this tree at the corner of the neighbouring property has and will continue to cause damage to Mr Duxbury's sewer piping and needs to be removed.
The plumber provided a separate quote for the works.
On my reading of the plumber's notes, it does not appear as though any roots were actually seen; rather, an assumption is made that the roots have caused some deformation of the riser. No evidence was provided of any of the CCTV footage.
On this basis I am not satisfied to the extent required by s 10(2) that the tree has caused the alleged problem with the sewer shaft; nor is there any evidence that any damage is likely to be caused in the near future. Therefore this element of the application is dismissed.

[8]

Guttering

The applicant alleges that the guttering "is damaged and weighed down by the heavy pods and leaves from the tree and needs to be cleared in a thorough, huge job once every month".
I was not shown any damage to the guttering; the concern is principally about blocking and possible future water damage.
I observed only a small portion of the canopy in the vicinity of the end of the applicant's roof; the majority of the roof and gutter is not overhung by the tree.
While I am not satisfied that any damage has occurred to the guttering as a consequence of the leaves or fruit, or is likely in the near future to occur, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter.
In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paragraphs [168] to [173] discusses 'damage' in general. In this discussion, his Honour specifically noted (at paragraph [171]) that: 171 However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7.
Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that: 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.
There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter.

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Judgment (15 paragraphs)

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Cases Cited (10)