Elson v Novek

Land and Environment Court (NSW)|2015-10-23

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a mature Celtis australis (Celtis or European Nettle Tree) tree located on the respondent's property at Narellan.
The tree is located within a couple of metres of the common boundary fence with the applicant's property and a portion of the canopy overhangs a courtyard that is the primary outdoor open space area for the applicant.
The applicant is seeking orders for the removal of the Celtis tree, reimbursement of the costs associated with the maintenance of the dwelling and surrounds and replacement of the common boundary fence with apportioned costs.
The provisions of section 10(2) of the Trees Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application. These tests are: Has the tree caused damage to the applicant's property? Is the tree now causing damage to the applicant's property? Is the tree likely in the near future to cause damage to the applicant's property? Is the tree likely to cause injury to a person? Only if one or more of the tests is satisfied can I move on to consider what orders, if any, I should make in respect to each of the trees.

Property Damage

The applicant contends that the tree has caused damage to her property resulting in expenses for works such as cleaning and painting.
The applicant is primarily concerned with the impacts of the 'sooty mould' that she contends has at times grown on her roof, facia, shade sail, plants and furniture in her courtyard.
The source of the 'sooty mould' was discussed at the hearing and it was agreed by both parties that the 'sooty mould' is growing on a clear sticky substance generally referred to as 'honey dew'. It was also agreed that the 'honey dew' is in this case likely to be exuded by an insect called the Hackberry Woolly Aphid. The applicant suggested that Hackberry Woolly Aphids had been sighted on the tree in the previous warmer seasons.
There were no aphids sighted on the tree at the time of the hearing. The lack of aphids is likely to be due to the tree only recently growing new spring foliage (this tree is deciduous) and the aphids generally appearing later in the growing season.
At the time of the hearing there was no evidence of substantial 'sooty mould' however the applicant included some dried and pressed Celtis leaves (I understand from the previous growing season) with her application that are covered in 'sooty mould'. As previously mentioned the applicant also contended that the dark discoloration of the shade sail located under the canopy of the tree was caused by the 'sooty mould'. It was not clear if the dark staining on the shade sail was as a result of 'sooty mould' associated with aphids or some other cause or as a result of several causes.
The applicant has included in her application several invoices and quotations for a variety of works associated with the cleaning of mould and the remediation of structures (i.e. sanding and painting).
In accordance with section 7 of The Act an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which The Act applies.
The Court requires that the tree itself must be the cause of the damage. I take guidance from Robson v Leischke [2008] NSWLEC 152 where CJ Preston noted [at 189] that the cause of the damage must be the tree itself and that the mere fact that the tree may provide habitat to animals or insects which cause damage does not mean such damage is "as a consequence" of the tree. Similar findings are found in Dooley v Newell [2007] NSWLEC, Clune v Falconer [2008] NSWLEC 1458 in respect to mosquitoes and termites and Moase v McMahon [2010] NSWLEC 1123 with respect to bats.
Therefore in relation to the seeking of orders to remove the tree and for the payment of compensation, for money spent on the remediation of the property as a result of the 'sooty mould' associated with the aphids habitating in the tree, the Court has no jurisdiction. As a result of the foregoing the application in this regard is dismissed.
The applicant also contends that a ridge cap on the roof apex was damaged some time ago by a branch that had fallen from the tree. The location where the capping tile had been replaced was noted at the hearing.
Currently the edge of the tree canopy is approximately 5 metres from the ridge of the applicant's roof and approximately 2 metres from the guttering. The applicant stated that at the time of the damage 15 months ago there was a branch that was overhanging the roof. I could not see evidence in the canopy of where a branch of the diameter and location, that would have been likely to crack a roof tile had it fallen, had been removed. The applicant had no images of the failed branch on the roof.
The respondent contends that at no time was there a branch that was overhanging the roofline to the extent of the ridge capping.
In Smith and Hannaford v Zhang and Zhau [2011] NSWLEC 29 at paragraphs 61 and 62 Craig J explained the need for a causal nexus between the damage and the tree. His honour said that "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes Between Neighbours) Act ".
As there was nothing sighted nor evidenced that convinces me, to the extent required by section 10(2) of the Act, that it was a fallen branch from the tree that caused the tile to crack, this part of the application is dismissed.

Debris and Leaves

The applicant contended that the gutters on her dwelling and the shade sail over the courtyard have been impacted by the large quantities of leaves that fall from the tree each Autumn.
The applicant discussed the requirement for her to have the gutters cleaned out and also pointed to the 'sagging' in the shade sail that she contends touches the table underneath it when filled with water after rain. The applicant suggested that it is the combination of sooty mould and leaves on the surface of the sail that prevents water from passing through the fabric and therefore pooling and weighing down the sail. The issue of the 'sooty mould' is discussed at paragraphs 9 -12.
In relation to the deposition of leaves I am guided by the Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 that says: "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 their 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."
Relevant in this matter the Principle at paragraph [21] was extended to include the cleaning of mould and slime in Hendry & anor v Olsson & anor [2010] NSWLEC 1302 paragraphs [11] to [14].

Injury

The application was also made in regard to the tree potentially causing injury to a person.
The applicant stated that she was concerned that a limb might fall from the canopy and cause injury to a person. The applicant was not able to point out any branch in particular that was causing her concern.
With the expertise that I bring to the Court I note that there was nothing sighted nor evidenced that indicated that any of the branches are likely to fail in the near future and cause an injury to a person.
It is noted that Mr Soldo, Camden Council Tree Officer, indicated that should an application be made to the Council for the pruning of some of the overhanging canopy it is likely that this would be permitted.
The respondent indicated a willingness to make an application to the Council for the pruning of the tree.

The Fence

An application was also made in relation to the replacement of the timber boundary fence between the applicant's and respondent's properties. The fence appears to be of considerable age and several of the posts along the length are out of vertical alignment. Close to the tree one of the palings has dislodged.
Ms Martin, Strata Manger for the Owners Corporation, informed the Court that the fence is common property owned and managed by the Strata.
As the Strata is not a party to the application the Court is not able to consider the matter of the replacement of all or part of the fence.
As a result of the foregoing the Orders of the Court are as follows: 1. The application is dismissed. L Durland Acting Commissioner of the Court 20567 of 2015 Durland (O) (15.6 KB, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2015

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