Kiernicki v Couto

CASES CITED: Yang v Scerri [2007]NSWLEC 592 Nair v Edwards [2006] NSWSC 1310

APPLICANT Mr H. Kiernicki, litigant in person LEGAL REPRESENTATIVES:

RESPONDENT M. P. Couto, litigant in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT The extemporaneous decision was given on 10 December 2008. This written judgment has been edited and includes relevant observations and background information. 1 ACTING COMMISSIONER: This application was made by Mr Kiernicki, owner of 3 Emma Place, Ambarvale. The application concerns six trees that Mr Kiernicki claimed were situated on 5 Emma Place, Ambarvale, the adjoining property to the east owned by Ms Couto. The trees are growing close to the dividing fence, on Ms Couto's side of the fence. Adopting the tree numbering used in the TALC arboricultural report dated 8 July 2008, the trees in order from the rear of the property to the street are; 1. Radiata pine, 2. Cypress, 3. Cypress, 4. Eucalyptus, 5. Wild Olive, 6. Grevillea.

2 Ms Couto has also made an application to the Court. That application, Number 08/21144 concerns trees situated on 3 Emma Place, Ambarvale, and was heard concurrently.

3 Ms Couto has been living at her property since 1988. Mr Kiernicki has owned his property since 1994, has lived there in the past but currently has tenants in the property.

4 Ms Couto claims that an error was made in the original set out or surveying of the common boundary between 3 and 5 Emma Place, with the northern end of the boundary being wrongly positioned a few metres onto her property. I observed that the dividing fence line now cuts across a driveway leading to 3 Emma Place, so I accept there is some oddity in the history of the boundary. Ms Couto also claims that some of the trees on her side of the dividing fence were planted by previous owners of Mr Kiernicki's property, before the fence was re-aligned.

5 Ms Couto recently had the boundaries of her property surveyed and provided a copy of that survey by Apex Surveying dated 28 October 2008, at the hearing. The survey shows tree 2. the southern of the two Cypress trees is situated on the common boundary, with the trunk slightly and the canopy principally on Mr Kiernicki's property.

6 Mr Kiernicki made his application to rectify or prevent property damage. He seeks orders for removal of the Radiata Pine, Cypress trees and the Eucalyptus tree. He has not specified any orders that he seeks for the Wild Olive and the Grevillea. He is not seeking compensation.

7 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person?

8 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? Reports and attendance of expert 9 An arboricultural report by Tree and Landscape Consultants dated 8 July 2008 was included in the submissions for Mr Kiernicki.

10 An arboricultural report by Allied Tree Consulting dated 3 November 2008 was included in the submissions for Ms Couto, and the author Mr Varley was present and provided helpful advice at the hearing.

11 The two reports are similar in many observations and conclusions, but as Mr Varley correctly identified the species of Eucalyptus and the Cypress, I have given more weight to his report. Findings 12 The Radiata pine (Tree 1.) is located south of the rear alignment of Mr Kiernicki's house. This tree is about 15 m tall with DBH about 0.35 m. I find that this tree has not caused damage and is not likely to cause damage in the near future, therefore it does not meet the tests in s 10(2)(a) of the Act, and I dismiss this part of Mr Kiernicki's application. In Yang v Scerri [2007]NSWLEC 592, the Court set out, for future consideration, a rule of thumb as to what might constitute the near future for the purposes of s 10(2)(a) of the Act. In that case, twelve months was adopted as an appropriate period. I also note that twelve months is a more generous period of time than was discussed in Nair v Edwards [2006] NSWSC 1310 (a tree nuisance case in the Supreme Court) where Windeyer J held that an appropriate period of time for future damage might be as short as six months. I find no reason to depart from those timeframes in this case.

13 The first Cypress (Tree 2.) is located beside the rear of Mr Kiernicki's house. This tree has damaged the dividing fence and therefore meets the first two tests in s 10(2)(a) of the Act. The majority of the tree overhangs Mr Kiernicki's property. The survey by Apex Surveying dated 28 October 2008 shows that the trunk of this tree is situated on the common boundary, slightly more on Mr Kiernicki's property. I note however that until viewing this survey at the hearing, the parties considered the tree to be situated on Ms Couto's property, and are still in dispute over the tree as Ms Couto wishes the tree to remain, and Mr Kiernicki does not have a recent survey of his own with which to be satisfied of the location of the common boundary. I intend to exercise my powers under s 9 of the Act to make orders that I think fit to remedy, restrain or prevent damage to property regarding this tree. On that basis I intend to order removal of the tree by Mr Kiernicki at his cost. Such orders will avoid further damage to the fence, will allow the fence to be replaced, will avoid this tree being the subject of ongoing dispute about the boundary, and will avoid an application regarding removal of the tree returning to Campbelltown Council.

14 There is another Cypress located a few metres east on Ms Couto's side of the fence between Trees 1 and 2. There is no evidence that this tree has caused damage or is likely to cause damage in the near future, and the tree is not included in Mr Kiernicki's application. I mention the tree only to avoid confusion as it is listed in Mr Varley's report.

15 The second Cypress (Tree 3.) is located beside the front of Mr Kiernicki's house. This tree overhangs the roof of Mr Kiernicki's house, and even though he has installed gutter guard and cleaned the roof gutters at least twice a year, the leaves of this tree have blocked the gutter and caused flooding and damage of the eaves. Therefore this trees meets the first test in s 10(2)(a) of the Act. The canopy of the tree is largely over Mr Kiernicki's property. The tree is part of a wide garden which is planted with screening trees and shrubs on Ms Couto's property. This tree is little seen from Ms Couto's house and front yard due to other trees in the garden. I intend to order removal of this tree by Ms Couto at her cost.

16 The Eucalyptus scoparia (Tree 4.) is located about in line with the front alignment of Mr Kiernicki's house. The tree is about 16 m tall with canopy spread of about 10 m and DBH about 0.5 m. The tree appears to be in fair condition. Mr Varley considers that the tree is typical for the species, and that the large wound on the lower stem has ample callous development and does not have an impact on the structural integrity of the tree. A low retaining wall on Mr Kiernicki's side of the tree was replaced in 2003 but there is no evidence that any roots were cut or that the tree is unstable. Mr Varley states that the tree is not likely to damage the retaining wall in the next 20 years. As this tree has not caused damage, and is not likely to cause damage in the near future, it does not meet any of the tests in s 10(2)(a) of the Act and I dismiss this part of Mr Kiernicki's application.

17 The Wild Olive (Tree 5.) was located about in line with the front alignment of Mr Kiernicki's house, but that tree had been removed before the hearing. Therefore I dismiss that part of Mr Kiernicki's application.

18 The tree nearest the street is a Grevillea (Tree 6.) located a few metres north of the front alignment of Mr Kiernicki's house. This tree is about 9 m tall with a canopy spread of about 8 m. It overhangs Mr Kiernicki's property but has not caused any damage. The tree appears to be in good condition and stable in the ground. I find that the tree is not likely to cause damage to Mr Kiernicki's property in the near future. Therefore the tree does not meet any of the tests in s 10(2)(a) of the Act and I dismiss this part of Mr Kiernicki's application. At the hearing Mr Keirnicki agreed that the tree is not likely to cause damage in the near future. Orders 19 The application is upheld in part, and orders will be made as follows: a. Tree 2, the more southerly of the two Cypress trees on the common boundary line shall be removed by Mr Kiernicki at his cost, by 31 March 2009; b. Tree 3, the more northerly of the two Cypress trees on the common boundary line shall be removed by Ms Couto at her cost, by 31 March 2009; c. The tree removal work in a. and b. above shall be carried out by contractor(s) with suitable insurances. The work shall take place at reasonable times, on reasonable notice. Each owner shall grant access over their property to carry out the work and each owner may supervise activities on their property.

      Peter Thyer
      Acting Commissioner of the Court
      The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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