McAuliffe v Horvath

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

APPLICANTS Mr Perkins, solicitor Mr Bartel, solicitor LEGAL REPRESENTATIVES: Skinner and Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Morningside Place Albury against the owner of seven trees growing in an adjoining property.

2 The applicants are seeking the removal of the trees as they contend that the trees have caused damage to their property and could cause injury to any person.

3 The damage said to be caused by the trees is the pushing over of a low metal fence at the front of the applicants' property by three trees, the displacement of a timber fence by two trees and the blocking of gutters by leaves from two trees.

4 The risk of injury is the potential injury to anyone who may be in their back garden should branches from a eucalypt fail.

5 The trees are growing along the southern boundary fence of the respondent's property and are wholly or substantially located on that property.

6 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees has caused, is causing, or is likely in the near future to cause damage to the applicant's property or is likely to cause injury to any person. These tests must be applied to each tree subject to this application.

7 As some of the applicants' concerns relate to future damage, the Court has frequently cited the guidance decision in Yang v Scerri [2007] NSWLEC 592 that, as a rule of thumb, the 'near future' is considered to be a period of 12 months from the date of the determination

8 Each of the trees subject to this application is considered in turn from west to east along the boundary fences.

9 Tree 1 is a mature Eucalyptus sp (possibly E. camaldulensis - River Red Gum) growing in the rear south-western corner of the respondent's property about 3 m from the applicants' property.

10 The tree is in average health and consists of 3 main trunks. The attachment of the trunks appears sound. The trunk closest to the applicants' property was lopped some 3 years ago. Whilst some epicormic shoots arise from this point they appear to be reasonably well attached.

11 The applicants are concerned that branches from this tree may fall onto their property, especially during windy conditions, and cause injury to anyone who may be in the garden at the time.

12 The applicants have owned their property for 12 years and have lived there for the past six and a half years. I asked the applicants how many branches had fallen from this tree since they have lived in the house. They stated that branches had fallen from a eucalypt that had been recently removed but that no branches had fallen from the tree subject to the application. This tree has caused no damage to the applicants' property.

13 There was no evidence to suggest to me that this tree is likely in the near future to cause damage to the applicants' property nor is it likely to cause injury to any person. Therefore as none of the tests under s 10(2) are satisfied, the Court has no jurisdiction to make an order with respect to this tree. Therefore this element of the application is dismissed.

14 Tree 2 is a Liquidambar styraciflua (Liquidambar) growing some 400 mm from the timber fence that separates the two properties. The respondent had a portion of the canopy closest to the applicants' property pruned about 12 months ago.

15 The applicants contend that the roots of this tree are pushing the fence over. According to the respondent who has lived in her property for over 40 years, the fence is about 14 years old. The fence was tied back to several trees in the respondent's property so I was unable to determine the extent of the lean. There was no material damage to the fence adjacent to this tree.

16 It was clear at the on-site hearing that no part of the trunk was in contact with the fence and no evidence was provided to show that the roots were causing the alleged problem.

17 A section of fence to the west of this tree appeared to be more displaced; according to the applicants this was in close proximity to the tree that was removed.

18 As there is no proof that this tree has caused, is causing, or is likely in the near future to cause, damage to property and it is not likely to cause injury to any person, the application with respect to this tree is dismissed.

19 Tree 3 is an Ulmus sp. (Elm). This tree has a bifurcated trunk and the base of the tree is growing against the base of the timber fence. Some root buttresses protrude beneath the fence on the applicants' side. About 5 panels/palings have been displaced but not broken.

20 The respondent accepts that this has occurred and acknowledged that the fence should be repaired.

21 The other problems the applicants say arise from this tree are the dropping of leaves into their guttering and past and future damage associated with the roots of the tree.

22 With respect to the leaves, the respondent had the majority of the trunk closest to the applicants' property removed some 12 months ago. There is very little regrowth arising from the cut sections. Whilst some of the canopy overhangs the applicants' roof, in Robson v Leischke [2008] NSWLEC 152 at 56, Preston CJ states that mere encroachment is not damage, and in 169 that damage must be proved.

23 It is clear that encroachment of the base of the tree has caused damage to the fence, however, encroachment into the air space cannot be said to be damage.

24 The Court has consistently applied the tree dispute principle published in Barker v Kyriakides [2007] NSWLEC 292. In this principle it is considered 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'.

25 It further states that 'The dropping of leaves, flowers, fruits, seeds or small elements of dead wood, by urban trees, will not ordinarily provide the basis for ordering removal of or intervention with a tree'. In this matter there are no exceptional circumstances that would lead me to depart from the principle in Barker v Kyriakides and no order will be made with respect to the falling of leaves and other debris from this tree.

26 With respect to the roots of the Elm, I was shown a section of suckering elm root in a cavity beneath the house. However, the applicants were unable to show me any damage being caused by this root. The root has been obvious for about 2 years. I saw no cracking of any nearby brickwork.

27 The applicants replaced their sewer pipes some 2 years ago as they said the pipes were broken and blocked with roots. The assumption is that the roots were from the Elm however I observed many other plants in both the applicants' and the respondent's gardens. On the unproven assumption that the roots were from the Elm, the applicants did not notify the respondent at the time the sewer blockage occurred thus denying the respondent to take any action if the roots had been confirmed as originating from the Elm.

28 There has been no damage to or blockage of the sewer since the pipes were replaced and partially suspended.

29 Therefore, the only test under s 10(2) that is satisfied for this tree is that the base of the tree is causing damage to a section of the timber fence. Therefore the jurisdiction is enlivened and the Court may make an order with respect to this tree.

30 Section 9 of the Act empowers the Court to make any order is sees fit to remedy, restrain or prevent damage to property (and or injury to any person) caused by a tree subject to an application.

31 The Court is not obliged to say simply yes or no to the orders sought by an applicant. In this matter, the applicants seek the removal of the tree. In my view this is disproportionate to the damage being caused by the tree.

32 The fence is still functional and the damage, that is the displacement of several palings, is more aesthetic. However, an order will be made for the repair of the fence.

33 Tree 4 is an Arbutus unedo (Irish Strawberry Tree). The applicants contend that leaves from this tree block their gutters.

34 At the on-site hearing it was clear that no part of this relatively small tree overhangs the applicants' property. As none of the tests under s 10(2) are satisfied, the application to remove this tree is dismissed. However, if I am wrong on the jurisdictional tests, as a matter of discretion and based on the tree dispute principle in Barker v Kyriakides, no order will be made for any intervention with this tree.

35 Trees 5, 6 and 7 are, in order, a Nerium oleander (Oleander) and two Tristaniopsis laurina (Water Gum). The applicants contend that the roots of these trees are pushing over a low metal and wire fence that divides the front gardens of the two properties.

36 The respondent stated that she thought the fence is over 40 years old. It is about 700 mm high, and according to the applicants the posts are concreted into the ground. The method of support or attachment at the western end was unclear to me. As with the timber fence, this fence was tied back to trees on the respondent's property and I was unable to assess the extent of the lean.

37 It was observed that no above ground part of any of the three plants was touching the fence. The applicants allege that it is the roots of the trees that are pushing over the fence however they were unable to demonstrate any evidence of this.

38 Therefore as none of the tests under s 10(2) are satisfied with respect of these three trees, these elements of the application are dismissed.

39 In conclusion as a result of the forgoing, the Orders of the Court are: 1. The application to remove the trees is dismissed. 2. The respondent is to engage and pay for a fencing contractor to repair the five damaged/ displaced palings of the fence immediately adjacent to the Elm. The repairs are to accommodate the future growth of the tree. No parts of the tree's trunk or roots are to be severed. 3. The works are to be completed within 60 days of the date of these orders. 4. The applicants are to provide all reasonable access for the obtaining of quotes and the carrying out of the works. 5. The respondent is to give the applicants at least 2 working days notice of any requirement for access.

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.