Inbari &anor v Rankin

APPLICANTS Mr J Johnson, barrister LEGAL REPRESENTATIVES: RESPONDENTS Mr P Ludemann, solicitor Ballidu Legal

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 THE COMMISSIONERS: This is an application made pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The application seeks an order for the removal of a Liquidambar tree (Liquidambar styraciflua) (the tree) located on the boundary between the two properties in the Sydney suburb of Cremorne. The application also seeks an order for the reinstatement, after the tree is removed, of the dividing fence between the two properties. Although not expressly so put, the application would appear to also contemplate an order pursuant to s 13A of the Dividing Fences Act 1991 for the reinstatement of length of the fence that is not impacted by the tree - this approach confirmed and an offer was made by Mr. Johnson, barrister for Mr and Mrs Inbari, that Mr and Mrs Inbari were prepared to meet half the cost of reinstatement of that portion of the fence that was not affected by the tree.

2 Before considering any of the merits of the application, we note two matters. The first is that the orders set out in the application as being sought by Mr and Mrs Inbari do not involve any order for rectification works or compensation for the cost of rectification of paving on Mr and Mrs Inbari's property said to be damaged by roots of the tree. Indeed, during the course of submissions, Mr Johnson expressly confirmed that no such compensatory award or order was sought.

3 Second, we observed that the tree is located on the boundary and that no survey has been provided to us to demonstrate what proportion of the trunk, at the point where it enters the ground, is on each of the properties. This knowledge is essential to determine whether or not our jurisdiction is enlivened, as we are required, by s 4(3) of the Trees Act, to be satisfied that the tree is situated principally on Ms Rankin's property rather than on Mr and Mrs Inbari's property.

4 Despite this lack of certainty, the parties agreed, consistent with the objectives of the Civil Procedure Act 2005 for the just quick and cheap resolution of matters that were in dispute between the parties, that we should undertake a full hearing on the merits and, if we were not minded to dismiss the application, contingent directions were given to ensure that Mr and Mrs Inbari would provide a survey that would demonstrate whether or not our jurisdiction was enlivened and, in company with that direction, a further direction preserving the right of Ms Rankin to seek the opportunity to undertake a further survey if she were not satisfied with Mr and Mrs Inbari's survey.

5 The application is based on satisfaction of two of the tests in s 10(2) of the Trees Act. First, Mr and Mrs Inbari say that the tree has damaged their property by lifting the paving in the vicinity of their barbecue and outdoor entertaining area. Second, it is said that seed pods falling from the tree, during approximately a seventy day period in any year, constitutes a risk of injury to Mr Inbari (who has recently had his eightieth birthday and who is legally blind). We are satisfied as to his legal blindness, as a letter from his doctor attests to this condition.

6 Mr Dubiez, the arborist for Mr and Mrs Inbari, had excavated a section of the paved area in Mr and Mrs Inbari's barbecue area where there was, evidently from our inspection, lifting of the pavers. The lifting of the pavers occurred over and in the immediate vicinity of one major and a smaller, minor root of the tree. We are satisfied, as a consequence of our observation of the exposed roots, that the tree has caused damage to Mr and Mrs Inbari's property.

7 The seed pods of the tree are approximately 3 cm or so in diameter and, from our knowledge of this species of tree, can be produced prolifically. If a person were to step on such a seed pod, we accept that, particularly if the seed pod were to be on a hard paved surface, there is a risk of that person's ankle being turned and a fall resulting. Such a conclusion (that the seed pods are likely to cause injury), satisfying the test in s 10(2)(b) of the Trees Act, is not dependent on Mr Inbari's blindness but arises as a matter of general principle. The extent to which Mr Inbari's blindness might be relevant in the proceedings is discussed later.

8 As a consequence, we are satisfied, should the tree be located principally on Ms Rankin's property as required by s 4(3) of the Trees Act, two of the further necessary jurisdictional preconditions have been satisfied.

10 The tree is located in the vicinity of the junction between three properties - as it is located at the rear boundary of Mr and Mrs Inbari's property (towards the south-western corner) whilst it is located on the northern, side boundary of Ms Rankin's property (as the two properties have different street frontages).

11 The tree has undergone some pruning, in the past, that was not in conformity with the Australian Standard. However, we are satisfied, from our examination of the tree - including a close examination of several historical pruning wounds - that the tree is in generally good condition. An examination of its canopy reveals no obvious branch attachment defects. As a consequence, there is no reason to assume that the tree, which, on Mr and Mrs Inbari's arborist's evidence, is some 30 to 35 years old, should be considered any risk of partial or complete failure at any foreseeable time in the future.

12 On Ms Rankin's evidence, the tree provides shade and privacy to her dwelling and also provides a degree of habitat to local birds.

13 It is not necessary to calculate, with any precision, the extent to which the canopy of the tree is located over Mr and Mrs Inbari's property; over Ms Rankin's property; or over the third property, to the north-west. It is sufficient, for the purposes of these proceedings, to note that substantial portions of the canopy overhang each of these three properties. As earlier noted, we do not consider that there is any likelihood of any failure of the tree and, as a consequence, we are satisfied that, except with respect to the matters upon which Mr and Mrs Inbari found their application, there is no basis to consider interference with or removal of the tree - indeed, to the contrary, the tree provides a degree of amenity to Ms Rankin and makes a modest contribution to local birdlife.

15 As earlier noted, we are satisfied that a degree of lifting of the paving has been caused by the roots of the tree. Mr and Mrs Inbari had the paving laid, some 15 years or so ago, when the tree was some 15 to 20 years old. The tree would have been a substantial specimen at that time (although not grown to the extent now observable). The paving appears to have been laid, with a step in it in the vicinity of the exposed tree roots and a slope in another, nearby portion of it, to take account of the ground contours that may already, at the time of the installation of the paving, have been influenced by the presence of the roots of the tree.

16 The paving appears to have been laid on a small bed of sandy mortar or sand. Well away from any likely influence of the tree's roots, we observed there are other unevennesses in the paving that would constitute a trip hazard of an extent similar to that occurring as a consequence of the lifting of the pavers by the roots of the tree. A significant example of this was the point where the garden paving meets the rear entrance area of the house - here, on a slope up from west to east, a lip to the house of between ~ 20 mm to ~ 10 mm was obvious where the paving abutted the house.

17 As a consequence, we are left to consider a position where there is an otherwise healthy tree that makes a contribution to amenity and modest habitat values but has caused a minor trip hazard to become evident in an area that has been developed after the tree was well established in its vicinity.

18 A further complication arises from the fact that Mr and Mrs Inbari have expressly disavowed any intention to obtain an order to rectify the paving by reconstructing it in a fashion that would provide protection against current and reasonably foreseeable hazards without requiring removal of the tree or any of its roots.

19 Although Mr. Johnson submitted that the re-laying of the paving on some form of solid concrete slab might be disadvantageous to or effecting of the health of the tree, we are aware, from our own experience, that such construction technique is not the only available option for providing such protection to Mr and Mrs Inbari's property without requiring interference with or removal of the tree or its roots.

20 Had Mr and Mrs Inbari sought some order for rectification, there would have been a compelling case for making an order for rectification works with at least a significant portion of the cost (but perhaps not all the cost - a matter upon which we do not need to express an opinion) being borne by Ms Rankin. However, given that Mr and Mrs Inbari have expressly disavowed any order of that nature and there are otherwise no compelling structural reasons to order interference with or removal of tree, ordering removal of the tree would be entirely disproportionate to the damage caused. As a matter of discretion, solely on the basis of the minor and readily rectifiable damage to Mr and Mrs Inbari's paving, we are not minded to order removal of the tree.

21 Having said that, it is necessary to consider the element of the application based on risk of injury as, depending on our conclusion on that point, an accumulation of the two bases upon which the application is made, in aggregate, might warrant an order for removal of the tree.

22 We turn, therefore, to the issue of the risk of injury to Mr Inbari as a consequence of the deposition of seed pods on the ground.

23 In Barker v Kyriakides [2007] NSWLEC 292 at para 20, the Court adopted the tree dispute principle 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.

24 In this instance, Mr. Johnson submitted to us, as we understood him, that there are four factors that should cause us to set aside this principle in this instance. These factors are: o the blindness of Mr Inbari and, thus, the enhanced risk of injury to which he is exposed; o the inability of Mr and Mrs Inbari, because of age, to clean up the seed pods and what is said to be the excessive number of them; o Liquidambar trees are not native and are not protected in some council areas (although protected in the North Sydney Council area - the council area here relevant); and o a 70 day period each year during which the seed pods are deposited thus, effectively, sterilising the rear yard and entertaining area for use by Mr and Mrs Inbari because of the risk of injury from the seed pods.

25 Although we accept that Mr and Mrs Inbari may have difficulty in undertaking, personally, the required degree of maintenance to collect the seed pods, because of their advancing years, Mr and Mrs Inbari have been resident in the premises for some 30 years and can reasonably be assumed to be aware of the nature of the seed pod fall from the tree. As a consequence, we consider that it would not be unreasonable for Mr and Mrs Inbari to arrange for maintenance of their yard to be undertaken, on a regular basis, to collect seed pods that had fallen from the tree.

26 In addition, we note that the period of the year, being the autumn to winter months, when seed pods deposition is at its highest, are the times of the year when it is least likely that Mr and Mrs Inbari would be undertaking outdoor entertainment in their barbecue area.

27 Further, we observed during the site view that Mr and Mrs Inbari had an upper deck area at the rear of their house and there was no submission made to us that there would be complete removal of any private open space amenity if the tree were to remain. We further observed, and were asked by Mr. Ludemann, solicitor for Ms Rankin, to have regard to the fact that the barbecue and entertaining area was largely covered by a roof and that seed pods could fall in a limited area of it - being the area where the barbeque apparatus itself was normally located. Finally, we observed, when Mr Inbari came to the rear yard of Ms Rankin's premises when we were examining the tree from Ms Rankin's side of the fence, that Mr Inbari needed to be assisted by his son to walk across Ms Rankin's lawn because of the grassy surface, a grassy surface not dissimilar to that on Mr and Mrs Inbari's property and upon which a number of seed pods would fall (if not most seed pods falling on Mr and Mrs Inbari's property - given the spread of the tree's canopy and the comparative area of the lawn with that of the barbeque area). 28 We do not consider that the lack of protection in other council areas is of significant consequence nor is the fact that Liquidambar trees are not native - as earlier observed, the tree provides a degree of amenity to Ms Rankin and makes a modest contribution to local birdlife - positive attributes that weigh in its favour.

29 A combination of all of these circumstances causes us to conclude that, although we accept that there is a risk of injury to Mr Inbari because of his legal blindness, the circumstances are not so exceptional that we should set aside the broad principle enunciated in Barker.

30 As a consequence, solely on the basis of the risk of injury to Mr Inbari, we are not prepared to order interference with or removal of the tree.

31 We have also considered whether, taken in conjunction, the two bases upon which the application is put warrant, cumulatively, some order for removal of the three.

32 Given that we have concluded that, after consideration of the principle in Barker, there are no sufficiently exceptional circumstances in this case that would warrant the setting aside of that principle, we have concluded that, even taking the two bases for the application together, there is no reason why, as a matter of discretion, it would be appropriate for us to order removal of the tree.

33 Having concluded that there is no appropriate basis, as a matter of discretion, why we should order removal of the tree, there are two consequences that flow from that conclusion. The first, lesser, consequence is that there is no basis to make some concurrent order pursuant to the Dividing Fences Act 1991 concerning rectification of any element of the fence not affected by the tree. Second, it follows that the order of the Court is that the application is dismissed.

Tim Moore David Galwey Senior Commissioner Acting Commissioner of the Court

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