Green v Georganas & Anor

Mr N Georganas and Ms S Sheeran (Respondents in person) File Number(s): 20892 of 2011

Judgment 1This is an application under part 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr Joel Green of 23 Lake Shore Drive North Avoca, against Mr Georganas and Ms Sheeran of 21 Lake Shore Drive. The properties are within the Gosford local government area. 2Mr Green seeks orders for the pruning back to the property boundary of branches from his neighbours' tree, as he contends that falling branches pose a threat to him and to his family when using their rear garden. He says that if the pruning that he seeks is likely to significantly destabilise the tree then he seeks orders for the trees removal. 3Mr Green also seeks orders for the payment of compensation for damage to his roof mounted pool solar fixture, pool fence glass panel and steel roof hip that he says were damaged by falling dead wood from the respondents' tree. 4At the commencement of the hearing, Mr Green said that he would not allow the respondents to enter his property and that he would not enter their property, in order to conduct the hearing. The parties agreed that I would make my assessment of the tree and hear the evidence from both parties and inspect from both properties and that the applicants and the respondents would remain on their respective properties, but within sight and hearing contact. 5Mr Green constructed his house, pool and surrounds in mid 2010 on land that was previously vacant. The construction involved a relatively deep excavation on the southern rear side, where Mr Green constructed a 2 m high retaining wall about 1 m in from the dividing fence. The respondents' tree stands about 1 m in from the fence and adjacent to Mr Green's rear garden. 6Mr Green says that he discussed the tree with Mr Georganas at commencement of his building construction. He says Mr Georganas was amenable to the tree being removed. Mr Georganas disputes this. Mr Green says Mr Georganas later changed his mind and said he could prune the tree back to the boundary. Mr Green then called for quotes to do that work. 7Mr Green says that Ms Sheeran then refused to allow the work until he produced a letter from Gosford council stating that the work could be done and also that he provide details of the contractor's insurance. 8Mr Green engaged solicitor Philip Luca who wrote to the respondents on 14 March 2011, telling them that council would not write a letter as the tree was within 3 m of " an approved building " and therefore council approval is not required under the City of Gosford Tree Preservation Order (the TPO). 9In the course of the hearing, Mr Green argued that his retaining wall was the " approved structure " that was within 3 m of the tree. However, I note the solicitor's letter refers to the TPO as relating to trees within 3 m of " an approved building ". The retaining wall is not an approved building and therefore it is not a determinant in relation to the Gosford Council TPO. 10Mr Green says that although he could not get the council's written advice, he was told verbally that a letter was not required. The proposed pruning work did not subsequently proceed. 11The solicitor's letter of 14 March 2011 also stated " As you know there has already been some damage to my client's roof/gutter from falling tree limbs ." 12The respondents contend that the solicitor's allegation of damage was the first notification they have had of any damage to Mr Green's property allegedly caused by their tree. The respondents wrote in reply on 4 April 2011 denying that they had any prior knowledge of the alleged damage and denying that they had ever agreed to the removal of the tree. 13During March 2011, the respondents engaged a tree contractor to prune dead wood and a large live branch growing slightly above Mr Green's house roof. 14Mr Green acknowledges the pruning of the live branch but he disputes that any dead wood was pruned at that time. 15Mr Green alleges that dead branches from the respondents' tree have, at unspecified times, fallen and damaged his roof mounted solar fixture as well as denting his steel roof ridge cap. He also alleges that a dead branch fell, again at an unspecified time, chipping a glass panel of his swimming pool fence. He says this necessitated the reversal of the panel so that a sharp edge was no longer exposed and likely to cause injury. 16The respondents say that they had no knowledge of the alleged pool fence panel damage until the directions hearing. 17Mr Green says he invited Ms Sheeran to view a dead branch that had fallen " as a spear " and lodged vertically into his garden, narrowly missing himself and his children. He alleges Ms Sheeran would not accept that the dead branch was from her tree. 18In the course of the hearing, I put the proposition to Mr Green that the small dent and scratch in his steel ridge capping might be characterised as of a cosmetic nature and barely visible, except from the respondents' side garden, to which he agreed. 19The respondents say that Mr Green may himself have damaged his solar fixture when climbing on his roof, a possibility that Mr Green denies. However, Mr Green was unable to produce evidence of any specific instance of damage caused by dead branches falling from the respondents' tree. 20Mr Green's submission contains a substantial number of colour prints of photographs, showing dead branches in and on his lawn and on his roof. The photographs are not dated and some are of the same branch, but taken from different angles. Mr Green could not state when any of the photographs were taken. As a consequence I am not persuaded that these photographs prove, on balance, that the damage to Mr Green's roof, solar fixture and glass panel was caused by the respondents' tree.