Lunt v Owners Corporation of Strata Plan 15785

Land and Environment Court (NSW)|2008-07-01

The application 3 Mr Lunt's application seeks the removal of the four trees as falling branches from the trees have damaged the roof allowing water to enter the roof area causing electrical problems and in a recent extreme weather event, the roof area filled with water and ultimately the ceiling collapsed. The trees are located close to the common boundary and dangerously overhang the dwelling on his property. The falling branches also pose a risk of injury to people using the premises. The trees also shed leaves and continually block the guttering of the house.

4 Mr Lunt also claims $5,454 in compensation. This is based on an order from the Consumer, Trader and Tenancy Tribunal (CCCT) on 19 October 2007 for Mr Lunt to compensate a tenant of the premises $2750 for damage to "electrical equipment and general damages" caused by water entering the dwelling and damaging the tenants property. The remaining $2704 relates to costs associated with the clearing of tree roots from the sewer that runs near the common boundary, costs associated with repairs to the chimney, the removal of leaves from gutters and removal of tree branches and general rubbish from the site. The response to the application 5 Mr Howard Simons, a solicitor represented the Owners Corporation of Strata Plan 15785. The response provided statements from Mr Tony Clinton, the owner of Unit 3 and the secretary of the Owners Corporation, Mr Michael McGee of Unit 4, Ms Linda and Mr Ralph Helm of Unit 6 and Ms Natalie Apouchtine and Mr Peter Harlow of Unit 5. All opposed the removal of the trees.

6 An arborists report from Mr Peter Hannigan from The Tree Fellas Australia Pty Ltd, dated June 2008 was also provided. The report concluded that the trees were mature healthy specimens displaying good vigour. The hazard risk of the trees is deemed to be low, as the trees have been well maintained. The clearance between the lowest branches and the roof on the adjoining property is sufficient to ensure that contact does not occur. On a without prejudice basis, Mr Simons offered, on behalf of the Owners Corporation of Strata Plan 15785 to clear out on a regular basis any debris from any overhanging branches either on the gutter or the roof. 7 Mr Simons submitted that there was no evidence to support the applicant's claims. The dropping of leaves onto Mr Lunt's dwelling is not a reason for the trees to be removed. There is also no evidence of any immediate or foreseeable collapse of the roof that would require intervention by the Court. He also relies on Mr Hannigan's report on the condition of the trees and also that the trees provide historical, cultural, social, scientific, landscape and scenic value.

8 In terms of the claim for compensation, Mr Simons submits that the basis for the $2750 ordered by the CCCT is uncertain as it only refers to "damage to electrical equipment and general damages".

The assessment framework 9 Clause 10 provides: 10. Matters of which Court must be satisfied before making an order (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person . 10 Clause 9 provides the limits for the Court to make orders. The ability to require the payment of compensation for damage to property is found in cl 9(2)(i). 9. Jurisdiction to make orders (1) The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.

(2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may: . (i) require the payment of compensation for damage to property, or . 11 Clause 12 provides the following matters to be considered before determining an application: 12 Matters to be considered by Court Before determining an application made under this Part, the Court is to consider the following matters: (a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises, (b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, (c) whether the tree has any historical, cultural, social or scientific value, (d) any contribution of the tree to the local ecosystem and biodiversity, (e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned, (f) the intrinsic value of the tree to public amenity, (g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned, (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage, (i) if the applicant alleges that the tree concerned is likely to cause injury to any person: (i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury, (j) such other matters as the Court considers relevant in the circumstances of the case. Findings Damage - cl 12(h) 12 We are satisfied that the trees have not caused, (are) causing, or (are) likely in the near future to cause, damage to the applicant's property. Even though the trees overhang the adjoining dwelling, we accept the conclusions in the report of Mr Hannigan that the trees are healthy and in good condition. A ground inspection of the trees at the time of the hearing confirmed the observations of Mr Hannigan on the health of the trees and that any dead, diseased or dying limbs have been removed from the tree canopy leaving no cause for suspicion of imminent limb failure.

13 We acknowledge that the storm event in April or May that caused water to enter his property and causing damage to the property of Mr Lunt's tenant (and the consequent claim to the CCCT) was a severe storm event however there was no evidence to suggest that the water that entered the dwelling was a result of damage to the roof caused by the severe storm itself or by branches falling from the subject trees. In any event, it would be unreasonable to use an atypical storm event as the basis for assessing whether the trees should be removed when the unchallenged evidence was that the trees are in a healthy and sound condition. 14 From the adjoining property, we were able to view the roof of Mr Lunt's dwelling. Leaves were observed in the gutters and the roof valleys however we are satisfied that this falls within the general scope of "ordinary maintenance issues" as set out in Barker v Kyriakides [2007] NSWLEC 292 and as such would not be a reason to require the removal of trees. We note the offer of the respondent to clear out, on a regular basis. any debris from any overhanging branches either on the gutter or the roof. At the conclusion of the hearing, the parties continue to discuss an appropriate form of assistance in this area.

15 Clause 10(2)(a) of the Act requires a consideration of whether any property damage is "likely in the near future". For some guidance, we accept the reasoning in Yang v Scerri [2007] NSWLEC 592 and adopt 12 months for the purposes of cl 10(2)(a) for our conclusions on that the trees are not likely to cause damage in the near future. Injury - cl 12(i) 16 We are satisfied that the trees are not likely to cause injury to any person largely because of the conclusions in Mr Hannigan's report and our observations on-site (see par 12) that the trees are healthy and in good condition and that any dead, diseased or dying limbs have been removed from the tree canopy leaving no cause for suspicion of imminent limb failure. Compensation - cl 9(2)(1) 17 We reject the applicant's claims for compensation for a number of reasons. Firstly, the claim for $2750, being the equivalent amount awarded by the CCCT for damage to the property of tenant within the building, is contrary to the findings in Robson v Leischke [2008] NSWLEC 152 (at pars 162, 163 and 217) where it was found that damage must be to the applicants property and not the property of a tenant. It was not totally clear from the Orders available from the CCCT as to the breakdown of the damages however it was generally agreed that $2500 related to damage to the tenants electrical equipment. The remaining $250 was described as "a general damages" and in the absence of any specific details, we accept that it would likely relate to the tenant in some form, and as such is not applicable for compensation as part of these proceedings. 18 Secondly, the claim for $2704 is for costs associated with the clearing of tree roots from the sewer that runs near the common boundary, costs associated with repairs to the chimney, the removal of leaves from gutters and removal of tree branches and general rubbish from the site. Invoices for the work identified in this claim were provided with the applicants Court papers. In relation to the costs associated with clearing tree roots from the sewer; there was no evidence to suggest that the trees in question were responsible for the blockages. Mr Lunt was not on the premises at the time the blockages were cleared and could not identify the location of the blockages. Mr Lunt also indicated that he had not advised the adjoining owners of the previous blockages. We note that the knowledge of a problem associated with the tree is a relevant factor when considering the question of the time when damages might run from (see Robson v Leischke, par 49 to 51). Mr Clinton indicated that the sewer line on his property also adjoins the line of the subject trees but had experienced no blockage of the sewer. This raises the question of the possibility of existing damage to the sewer line on Mr Lunt's property. 19 The invoices for repairs to the chimney, the removal of leaves from gutters and removal of tree branches and general rubbish from the site are matters that relate to general maintenance rather than repairs for damage caused by the trees in question and as such the claim for compensation should be rejected. Orders 20 For the reasons in the proceeding paragraphs and the positive contribution the trees make to the local area (s 12(c), (d) (e) and (f) of the Act) the application for the removal of 4 trees and the claim for compensation are dismissed.

7 - __________ G T Brown Commissioner of the Court

Peter Thyer Acting 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.

CITATION : Lunt v Owners Corporation of Strata Plan 15785 [2008] NSWLEC 1276

Barker v Kyriakides [2007] NSWLEC 292 CASES CITED: Yang v Scerri [2007] NSWLEC 592 Robson v Leischke [2008] NSWLEC 152

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Judgment (9 paragraphs)

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Cases Cited (4)