Karadinovski v Weston & anor [2014] NSWLEC 1036 | Case summary

Land and Environment Court (NSW)|2014-02-25|Before: Mr P

Judgment 1COMMISSIONER: The applicant contends that trees growing on the respondents' property in Oatley, have caused or may in the future cause, damage to his property. 2The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the annual pruning of the trees to the boundary line, the costs of cleaning the applicant's roof, and the costs associated with the making of the application. 3In regards to the legal and other costs incurred by the applicant, Commissioners do not have the power to order the payment of such costs. Claims for these costs must be made by way of a Notice of Motion, which is heard by a Judge or the Registrar of the Court. 4The damage the applicant contends has caused or may cause is described as:

Mouldy roof;
Gutters and downpipes blocked by leaves;
Blocked TV dish;
Potential to cause a fire in hot, dry and windy conditions; and
Mould on the house and concrete paths. 5The application concerns seven trees that are growing generally on the northern side of the respondents' property. The applicant's property is to the north. 6The trees are numbered from west to east, from the back garden to the front garden. Trees 1, 2 and 3 are mature Acer negundo (Box Elder). These trees are close to a secondary building at the rear of the applicant's property. Branches from Trees 1 and 3 are just touching the tile roof/guttering of this building. The building and its eaves are very close to the common boundary. 7Trees 4 and 5 are semi-mature/early mature Pyrus calleryana (Ornamental Pear). Tree 5 is closest to the south-western corner of the applicant's dwelling. 8Trees 6 and 7 are Ulmus parvifolia (Chinese Elm) planted on the southern side of the respondents' driveway that runs beside the common side boundary. Tree 6 is the largest tree in contention. According to the respondents, this was an established tree when they purchased their property about 40 years ago. The canopy of Tree 6 extends some metres over the southern portion of the applicant's roof. 9Tree 7 is planted near the front boundary line some 5 metres from the applicant's property. The canopy is about 3.5m away from the south-eastern corner of the applicant's dwelling and only 2 small branchlets appear to overhang the fence. 10In 2010, the applicant obtained approval from Hurstville City Council for minor pruning of small branches of one Chinese Elm, presumably Tree 6, and two Box Elders, probably Trees 1 and 3. In August 2013, the applicant obtained permission to prune overhanging branches of all seven trees back to the boundary line. As is their right to do so, it appears the respondents did not grant permission for the trees to be accessed from their property. 11The respondents' position is that the applicant has not substantiated his concerns. The respondents note the findings of the applicant's arborist (see [28]) and agree that pruning to the boundary line is excessive and not justified. 12In applications under Part 2, the key jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is satisfied that any of the trees the subject of the application, have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are likely to cause injury to any person. Potential injury is not part of the application. Section 10(2) must be applied to each tree. 13As the applicant is concerned about future damage, the guidance decision in in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is generally a period of 12 months from the date of the hearing. 14If any part of s 10(2) is met for any of the trees, the Court's power to make orders under s 9 of the Act is engaged. In determining what, if any, orders should be made the Court must consider a number of discretionary matters under s 12. Section 9 enables the Court to make any orders it thinks fit in order to remedy, restrain or prevent damage to an applicant's property as a consequence of trees growing on adjoining land.

Mould 15The main issue raised by the applicant is that overhanging branches and the leaves that fall from the trees, in particular Tree 6, have caused damage to his property by encouraging the growth of lichen and mould on the roof tiles, the growth of mould on the southern walls of the house, and the blocking of downpipes and gutters. This concern generated a quote of $3,300 from a roof maintenance company for "roof repairs" comprising spraying of lichen with a chlorine solution, high pressure cleaning, and cleaning the gutters. In order to prevent further issues with leaf drop, the applicant proposes pruning the trees to the fence line. 16When asked, neither the applicant, nor his legal representative, were able to indicate any physical damage as a consequence of the leaves. There was no evidence adduced as to any actual damage arising from the alleged blocked gutters and downpipes. The applicant stated that the last time he cleaned the roof was four years ago. Gutter guard is installed and some fine sticks were seen poking through the mesh. The applicant reiterated his claim that the mould on the roof constituted 'damage'. 17While it will be inevitable that leaves and other material will fall onto the applicant's dwelling from Tree 6, I am not satisfied to the extent required by s 10(2) that any damage has occurred. While in the eyes of some, mould or lichen growing on roof tiles may be unsightly, unless there is evidence of actual physical damage as a consequence of the tree, and not by a secondary organism, the Court has no jurisdiction to make any orders for any intervention with a tree on that basis. I note that the applicant has not cleaned the roof for four years and the part of the roof most affected faces south. 18In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280, Preston CJ at paras 168 to 173 discusses 'damage' in general. In this discussion, his Honour specifically noted (at para 171) that: 171 However, 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 Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's 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. 19Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states 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. 20There 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 to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [11]-[14], the principle was extended to include the cleaning of mould and slime. 21Similar findings are made in regards to the mould observed on the lower portion of south-facing wall of the applicant's dwelling. The path between the dividing fence and the applicant's dwelling is no more than one metre wide. The mould was growing above the path below the damp proof course; there was also mould growing on the bottom part of the timber fence.

TV dish 22In regards to the TV dish, this is located on the southern side of the roof beneath overhanging branches of Tree 6. The applicant stated that no physical damage had occurred to the dish, the "blocking" refers to interference with reception. He stated that the dish was located in that particular spot because it provided the best reception. 23In Robson at [166] His Honour considers that [Part 2] of the Act applies to 'physical and tangible property' and at [173] would not cover interferences such as obstructions of views or sunlight. In my opinion, interference with television reception would be in the same category. While Part 2A was included in the Act in 2010 to include specific provisions for applications regarding severe obstructions of sunlight and views, the Act makes no provision for obstruction of television signals. As a result, the Court has no jurisdiction to make any orders for any interference with the tree on this basis. 24However, if I am wrong in this jurisdictional question, as a matter of discretion, I will not make any orders for any pruning of the tree on this basis. Although the particular circumstances differ, the Tree Dispute Principle published in Black v Johnson (No 2) [2007] NSWLEC 513 has some relevance. This principle considers the prior existence of a tree and whether there was an opportunity to site a structure, subsequently damaged by the tree, elsewhere. I note that the applicant rebuilt his dwelling in 2003 when the tree was well established. The dwelling has a very large roof area, which on the face of it, would seem capable of accommodating the dish somewhere other than under a tree.

Fire 25The applicant is concerned that fallen debris may pose a fire risk. In order to engage the Court's jurisdiction, there must be a nexus between the tree and the damage - that is, the damage must be "as a consequence of the tree". Trees do not start fires. The risk of fire damage as a consequence of the flammable nature of trees is discussed in Freeman v Dillon [2012] NSWLEC 1057 at [86]. This follows from a broader discussion of matters such as extraordinary natural events by Preston CJ in Robson at 209]-[210]. 26Therefore, no orders can be made for any intervention with any of the trees on this basis.

Other potential damage 27At the hearing the applicant raised the issue of branches potentially causing damage to his roof or gutters. In preparing his application, in December 2013, the applicant engaged an arborist to assess the trees and make recommendations for their management. 28The arborist notes the good health and vigour of all trees and the amenity they provide. The arborist specifies the pruning he recommends for each tree, essentially the removal of low and extending branches to reduce or avoid contact with the roof of both the applicant's dwelling and secondary building at the rear of his property. There is no recommendation for pruning to the fence line. 29Based on the observations made at the hearing, and with the arboricultural expertise I bring to the Court, I make the following findings. 30As stated above, branches from Tree 1 are in contact with the roof of the secondary building at the rear of the applicant's property and Tree 3 is close. The branches of Tree 1 are also close to an aerial. 31In my view, there is a potential for damage in the near future, sufficient to satisfy s 10(2) and engage the Court's jurisdiction to make orders. 32 Although the branches are small, it is prudent to order the pruning of branches of Tree 1 and, if necessary Tree 3, sufficient to establish a vertical clearance of a maximum of 1.5 m above the roofline and 1m from the aerial. This work is to be undertaken by an arborist engaged and paid for by the respondents 33The branches from Trees 4 and 5 are unlikely to cause any damage to the applicant's property in the near future and no orders will be made requiring the respondents to undertake any pruning of these trees. 34There are a number of branches from Tree 6 close to the applicant's roof. It is possible that damage to tiles could occur in the near future. The respondents are to engage and pay for an arborist to prune overhanging branches to provide a vertical clearance of 1.5m above the applicant's roof. Given the significant distance of any part of the canopy of Tree 7 from the applicant's dwelling, no pruning is required. 35Pruning to the fence line as requested by the applicant cannot be supported on jurisdictional or arboricultural grounds. 36Given the clearances and the small diameter of the overhanging branches, no orders will be made for ongoing pruning at the respondents' expense. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, if the circumstances change it is possible for a fresh application to be made. 37Should any clarification of the relative roles of the Court and the council in the making of tree-related orders be required, the parties are directed to Ghazal v Vella (No. 2) [2011] NSWLEC 1340.

Orders 38Therefore as a consequence of the foregoing, the Orders of the Court are: (1)The application is upheld in part. (2)Within 60 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to undertake the pruning work described in paragraphs [30] and [32] of this judgment. (3)The work in (2) is to be carried out in accordance with the general provisions of AS4373: 2007 Pruning of Amenity Trees and the specific provisions of clause 7.3.2 Reduction Pruning. (4)The work in (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (5)The applicant is to provide all necessary access for the purpose of quoting and for the safe and efficient carrying out of the work on reasonable notice.

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: 05 March 2014

Karadinovski v Weston & anor

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