Gieth v Athamawa

Land and Environment Court (NSW)|2023-01-17|Before: Centre J

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

COMMISSIONER:

The applicant, Ms Sanaa Gieth, owns a property in Kellyville, while Dr Mohamed Athamawa, the respondent, owns the neighbouring property, to the south-west of the applicant's land. Between the properties is a public laneway, about 4 metres (m) wide. Both properties' side boundaries facing the laneway run from south-east at the front to north-west at the rear. The applicant occupies her property, while the respondent's dwelling is leased to tenants.
The tree at issue is a mid-mature Platanus x hybrida (London Plane) (the tree) about 15 m tall with a canopy spread of about 12 m, which is planted about 600mm from Dr Athamawa's side boundary facing the laneway, and about 3 m from his rear boundary. The north-western end of the laneway exits onto a major road, with a large intersection nearby. There is a separation of almost 5 m between the tree and Ms Gieth's side boundary.

The on-site hearing

Ms Gieth attended the on-site hearing and was assisted with translation by her daughter. The respondent failed to appear, so I contacted the respondent's property agent, Ms Erceg of Gilmour Property Agents, Baulkham Hills, and was advised that neither she nor Dr Athamawa would be attending. Ms Erceg said that Dr Athamawa would abide by whatever orders of the Court were made as a consequence of the hearing.

Jurisdictional requirements

With respect to s 7, 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 this Act applies that is situated on adjoining land.
The Land and Environment Court (LEC) has applied the decision of the Court of Appeal in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, in which the Court of Appeal held that adjoining does not mean immediately linked to or contiguous with. Trees that are separated by a public walkway from the applicant's property have been held to be "on adjoining land" (Murray v Shoebridge [2007] NSWLEC 785).
Therefore, though these two properties are separated by a public laneway, I am nonetheless satisfied that for the purpose of this application, the tree is "situated on adjoining land".
The applicant has satisfied the requirement under s 8 of the Trees Act; to serve notice to the respondent more than 21 days prior to the proceedings.
Ms Gieth has also satisfied s 10(1)(a) of the Trees Act; to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, by attempting to communicate and negotiate with the respondent via his agent, and through attempts to mediate with assistance of a director of a Community Justice Centre. The respondent did not respond to either of these attempts by the applicant.

Has any damage occurred?

The next major test that is posed, by s 10(2) of the Trees Act, is that the Court must be 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.
The tree's canopy encroached entirely over the public laneway, and overhung the applicant's boundary by about 2 m. I understood that the extent of foliage overhanging the applicant's yard had been pruned back on one previous occasion, but that this was not a satisfactory solution for Ms Gieth, particularly because the overhang had recurred due to the tree's relatively rapid growth rate.
At [55]-[56] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ provides commentary on the issue of encroachment under common law, where he says: "55 Nuisances of the first kind, causing an encroachment, are exemplified by branches or roots of a tree growing on the defendant's land, encroaching into the air above or the soil below the neighbour's land: Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-07], p 1165." "56 Mere encroachment into the neighbour's land is insufficient to complete a cause of action for nuisance; special damage must be suffered by the neighbour as a result of the encroachment to obtain the remedies of damages or injunction: Asman v MacLurcan (1985) 3 BPR 9592 at 9594."
While action in nuisance is not available under the Trees Act, the essence of this common law approach is consistent with the Trees Act, where no remedy is available for branches encroaching over the applicant's land unless the branches were also causing damage, or genuine risk of injury.
Even though leaves and small sticks from the trees were dropping and blowing onto the applicant's lawns and external surfaces, under the Trees Act, this alone does not constitute damage.
The Court's position is described at [171] of Robson, where his Honour says: "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 Act. "Hence leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours 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."
At question 31 of the application, Ms Gieth noted that "[the] cleaning of leaves and branches that fall into our backyard is very hard and time consuming due to the amount of leaves and branches in our backyard."
The issue of maintenance required to deal with such refuse is addressed in Barker v Kyriakides [2007] NSWLEC 292 (Barker), which, at par 20, establishes the Tree Dispute Principle: "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 will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree."
The applicant provided many photographs of leaves and twigs that had fallen or blown from the tree, and I have no doubt that the quantity of such refuse will increase as and when the tree sheds its leaves in autumn. Nonetheless, the maintenance burden for removal of this material, should it be required, is entirely accounted for by the Tree dispute principle established in Barker.

Is there a genuine risk of injury?

At question 9 of the application, requiring a detailed description of the likelihood of injury to people, Ms Gieth noted that: "The likelihood of injury is quite high due to myself and family members slipping and injuring ourselves. I have hurt my back and knee and my daughter has slipped on her back in the past and required physiotherapy. We were also made aware that members of the public as they walk through the alley way have slipped due to tree leaves and branches."
The applicant provided no evidence to substantiate these injuries but requested leave of the Court to provide medical certificates subsequent to the hearing.
I refused this request, because regardless of injury that may have occurred, I was not satisfied that the circumstances of this case allow for a genuine risk of injury. Clearing of the leaves and twigs from the lawn and house surrounds, which were evident on site and in photographs provided with the application, is consistent with the expectation of reasonable maintenance established by the Tree dispute principle in Barker. I was not persuaded that such maintenance work involved anything higher than a low and acceptable risk.
It is common and normal for lawns, gardens and house surrounds throughout urban areas to contain much higher levels of leaves, twigs, flowers and fruit than found here, even in autumn, and it is a normal expectation that people may walk across such surfaces without consequence. If the lawn and leaves were wet, they may be more slippery than normal but, again, it is a reasonable expectation that people would take more care in such situations. At question 12 of the application, detailing any steps taken to prevent any such injury, Ms Gieth notes, "…when I or family members go outside we try to make sure we walk more carefully".
In the last three years, where Sydney has experienced higher than average rainfall, and slippery moss and algae has grown readily on many shaded surfaces, a similar expectation to take due care is reasonable. Even if people walk in a park or in the bush, where there may be features such as undulating land, broken glass or raised rocks, the onus remains on a reasonable person to modify their behaviour to account for such minor additional hazards, should it be necessary. It would be absurd for such responsibility to rest anywhere other than with the individual person, especially when action required to mitigate such risks is simple to undertake.
As to members of the public slipping on leaves and sticks from the tree in the laneway separating the properties, this is not the applicant's responsibility, nor her problem. Should maintenance be required to mitigate what is already a low risk, responsibility for the laneway sits with Hills Shire Council.
Consequently, no evidence gleaned on site, in the application, or by way of a formal risk assessment has been provided that could satisfy the Court that a genuine risk of injury any greater than low exists in this situation. A low risk is considered to be acceptable, so s 10(2)(b) of the Trees Act is not engaged.

Conclusion

As s 10(2) of the Trees Act is not satisfied, I have no jurisdiction under s 7 of Pt 2 of the Trees Act to make any orders with respect to the tree. As a result, there is also no requirement to consider the discretionary matters in s 12 of the Trees Act.
Nonetheless, the tree provides significant local amenity, softening the impact of the nearby major thoroughfare in a region generally lacking large trees.
The tree's canopy has the potential to grow much broader. Though no orders can be made by the Court, it would nonetheless be reasonable for the respondent to reduce the likely increasing extent of canopy overhanging the applicant's property from time to time. It is a particularly resilient species and is not likely to suffer stress from the minor and relatively inexpensive pruning required to achieve this.

Orders

The Court orders that: 1. The application is refused.

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: 20 March 2023

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