Hyder v Sivanandan & anor

Land and Environment Court (NSW)|2014-04-16|Before: Craig J

Judgment 1COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by the owner of a property in Acacia Gardens against the owners of two trees growing on an adjoining property. 2The applicant alleges that two Bottlebrush trees (Callistemon sp) have damaged the timber, dividing fence between the parties' properties. He also contends that leaves and branches from the trees have blocked gutters and a downpipe on his property causing consequential overflow and a leak into his dwelling. The applicant is also concerned that the trees' roots may invade storm water and sewer pipes in an easement at the rear of his property and close to the trees. 3The applicant states that the trees have grown to such an extent that they block his views of the Blue Mountains and obstruct sunlight to the rear of his house and have killed his lawn. As the applicant has not made an application under s 14B part 2A of the Trees Act, the Court cannot consider the view and sunlight issues however, damage to the lawn will be considered. 4The applicant is seeking compensation of $2915 to include the following works:

$950 for the cleaning and fungicide treatment of the roof tiles
$1243 for removal of old fence and replacement of 13m with 1.8m colourbond metal fencing;
$500 excess for an insurance claim for repairs to a ceiling and cornice said to have been caused by leakage due to blocked gutters; and
The application filing fee of $220. 5With respect to the last element of the claim, Commissioners do not have the jurisdiction to award such costs. If the applicant wishes to pursue this, he must file a Notice of Motion, which will then be heard by a Registrar or Judge of the Court. 6I note that the applicant has not sought formal orders for the removal of the trees, although tree removal is mentioned in answer to question 16 in the Part 2 claim form. 7In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This section states that the Court must not make any orders under this Part unless it is satisfied that any of the trees about which an application is made, has caused, is causing, or could in the near future cause damage to the applicant's property or could cause injury to any person. As injury is not pressed, s 10(2)(b) is not relevant. 8The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...".

The fence 9When the applicant built his dwelling in 1995, the fence was in existence. Another neighbour who attended the hearing confirmed that the fence was indeed over 20 years old. 10Over two thirds of the length of the common portion of the fence has completely collapsed onto the applicant's property. The parties stated that it has been in serious disrepair since 2008 however after heavy rains a year or so ago, despite having additional supports, the fence collapsed. The remaining portion is leaning towards the respondents' property and is being supported by Tree 2. A dead branch from Tree 2 is hanging over and resting on the fence but does not appear to have caused any damage. 11The applicant contends that the roots and or branches of the trees may have caused, or at least contributed to, the damage; however, no evidence was adduced to support this contention. 12It was clear from an inspection of the fence that the bottoms of the palings are decayed and that the posts have either broken off or were not installed to an appropriate depth to provide long-term support. 13The condition of the fence is consistent with it being an old timber fence that was poorly installed. The fence in question is in similar condition to other fences on the respondents' property that are likely the same age; the other fences have also required supplementary support. Correspondence in the parties' evidence indicates that the fence has been in dispute since 2008, however, according to the respondents, the trees were not previously identified by the applicant as causing a problem. 14On the evidence before me, I am not satisfied that either of the trees has caused the damage to the fence. However, if I am wrong in this and the trees have been a contributory cause, perhaps through lower branches applying pressure on the fence, the Court's jurisdiction to make orders would be engaged, as a matter of discretion I would not make any orders for any intervention with the trees on this basis. In my view, the contribution of the trees is minor to negligible, as stated above the main causes are age, materials and installation of the fence. 15I note that the applicant did not elect to engage the Court's jurisdiction under s 13A of the Dividing Fences Act 1991. Therefore even if I had found the trees to be a contributory factor, thus satisfying s 10(2)(a) of the Trees Act and subsequently s 13A of the Fences Act, that avenue of resolving the long-running fence dispute is not available.

Leaves/litter - blocking of gutters - water damage 16The applicant states that in 2011 water leaked into his dwelling and caused damage to the living room ceiling. The repair of the damage necessitated payment of $500 to cover the excess of the applicant's insurance policy. 17The applicant contends that it was the build up of leaves from the respondents' trees that caused the overflow and subsequent damage. 18The blockage is said to have occurred in the north-western corner of the covered patio located between the northern and southern elements of the applicant's dwelling. The southern, rear section is single-storey with a pitched, tiled roof the northern section is two-storey, also with a pitched, tiled roof. These sections drain in part to box gutters that surround three sides of the covered patio. 19The applicant was unable to produce any evidence, such as photographs, insurance assessor's report etc, to support his claim that the blockage was a consequence of leaves from the respondents' trees. A hand written note on a "Client acceptance of scope of works" simply states: This water leak is due to gutters being blocked..." There is no indication of who wrote this. 20While it is hypothetically possible that leaves from the respondents' trees caused the blockage and subsequent damage, there is simply no evidence of the nexus between the trees and the damage. There are other trees elsewhere and the blockage occurred some distance from the trees, and not in the guttering immediately adjoining the trees. 21Even if I were to put the applicant's case at it highest and agree they may have contributed, consistent with the Court's application of the Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292, no orders would be made for any intervention with the trees on this basis, and certainly not tree removal. 22The principle states: 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. 23There 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 that there are such exceptional circumstances that warrant a departure from this consistent application. 24In Hendry & anor v Olsson & anor [2010] NSWLEC 1302, the principle was extended to cover mould and slime etc. I also find there is no evidence to justify the quote of $950 to clean the entirety of the applicant's roof. 25In addition, had the jurisdiction been engaged, no orders would be made for any contribution by the respondents to the $500 excess. The applicant stated that he did not notify the respondents at the time the damage occurred thus denying them the opportunity to inspect the damage and taken any action. The first the respondents knew of this damage was when they received the application under the Trees Act.

Potential damage to the sewer 26The guidance decision in Yang v Scerri [2007] NSWLEC considers that 'the near future' is a period of 12 months from the date of the hearing. In Robson v Leischke [2008] NSWLEC152 at [200] Preston CJ notes that the 'near future' implies there is "a real appreciable probability" of substantial damage. 27The applicant's sewer pipe joins the Water Board's main near the south-western corner of his property and close to other trees growing on another adjoining property; it is some distance from T2. To date there have been no problems with the applicant's sewer. The applicant states that he was advised by arborists that the roots of Bottlebrush could be a problem however the applicant was unable to produce any report from any arborist or anything else to substantiate his fears. 28Again, while there is a hypothetical possibility this may happen, there is no evidence to indicate this is imminent.

Damage to the lawn 29The applicant filed an amended application that does not include a claim for damages about the lawn however it is raised in the initial application and I will address it. As stated above Part 2 does not apply to sunlight and Part 2A does not apply to sunlight to gardens. However, the applicant contends that the lawn has been killed/ damaged as a consequence of shading by the tree. To the extent that this may be considered as actual damage as a consequence of the respondents' trees I will give it some consideration. 30The area in question is a strip of land about 1.5m wide between the rear of the applicant's dwelling and the retaining wall adjoining the drainage easement. The applicant contends that the lawn extended along this section but it died because of excessive shading and it was replaced with gravel. 31The applicant did not provide any evidence of the presence or condition of the lawn from the time the respondents purchased their property. He did not provide any evidence of the shade tolerance of the species or any other relevant evidence. 32While it is possible that the trees may shade this section of the applicant's property for part of the day, given its southern aspect and proximity to the applicant's dwelling, the most likely cause of the lawn's demise has been shading by the applicant's dwelling. 33Therefore I am not satisfied to the extent required that the trees have caused any damage to the lawn.

Conclusions 34While s 10(2) may be engaged with respect to the trees possibly contributing to the damage to the fence, and thus engaging the Court's jurisdiction to make orders, as a matter of discretion no orders will be made for any intervention with the respondents' trees, and certainly not removal. Similarly there are no grounds for awarding any compensation sought by the applicant. 35Nothing in this judgment prevents the parties from replacing the fence in accordance with the usual provisions of the Dividing Fences Act 1991. 36Therefore, in conclusion, the Orders of the Court are: (1)The application is dismissed.

Judy Fakes Commissioner of the Court 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: 16 April 2014

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