McDonnell v Harrison

EX TEMPORE Judgment 1The constrained urban settlement pattern of inner Sydney means that there are often tensions between neighbours when substantial trees are grown on a property. 2In this instance, we have an application concerning a two leader substantially tall, some 10 - 12 m high Jacaranda, located close to the boundary between the applicant's property and the neighbours to the east. We are also dealing with an application concerning a more modestly dimensioned Lillypilly, some 3 m tall and a pair of palms that are about 4.5 or 5 m tall. 3All of these trees are growing close to the boundary between the two properties. 4Mrs McDonnell is concerned that the trees have impacted on her property in various fashions and has made an application, pursuant to the Trees (Disputes Between Neighbours Act) 2006 (the Act), seeking both orders for removal of each of the trees and orders for compensation for past damage caused by some of them. 5The Act requires that we consider for each of the trees whether it has caused, is causing, or is likely in the near future to cause, damage to the McDonnell's property and whether it is a risk of injury to any person. 6It is convenient for the purposes of this analysis, as we are required to do, to deal with each of the trees in turn. 7Part of the complaint for three of the trees, that is, one of the palms, the Jacaranda and the Lillypilly, is their deposition of fruit, twigs, leaves and other detritus on the McDonnell's property, making it necessary for maintenance to be undertaken to that property and for shading caused by the Jacaranda, leading to what is described to us as a build-up of mould or moss or some other green growth on the pavers immediately adjacent to the fence. 8It is convenient to deal first with the question of the deposition of material. In the case of Barker v Kyriakides [2007] NSWLEC 292, the Court published a True Dispute Principle that set out the broad proposition that in ordinary circumstances, for those who have the benefits of trees in an urban environment, having both the aesthetic and environmental benefit of those trees, there is a requirement, and as an offset for that benefit, to accept the responsibility to undertake ordinary reasonable maintenance of their properties. 9Although the Jacaranda has deposited a considerable amount of leaf litter and the like, and we accept it is likely that one of the palms will have deposited some fruit as would the Lillypilly, consistent with the principal in Barker v Kyriakides, there is no exceptional circumstance with respect to each of these three trees that would cause us to make any order for intervening with, let alone ordering the removal of, any one of those trees on the basis of the deposition of that detritus. 10With respect to the fourth tree, that is the second of the palm trees, it is growing away from the fence between the properties, it is not depositing fruit on the neighbour's property, it is to the south of the neighbour's property and there is no basis whatsoever upon which we could order any intervention with, let alone removal of, that tree. 11We now turn to the question of damage to the McDonnell's property. Setting aside questions of compensation, it has been put to us that the Jacaranda (and its roots): has led to rotting of a deck that was in the vicinity of the boundary between the properties; has caused distortion of the deck, necessitating its demolition; necessitated the paving at the rear of the property to be re-laid as a consequence of the roots that have gone from the Jacaranda towards the McDonnell's house; and has distorted the fence. Likewise to a lesser extent, the first of the palms has similarly distorted the fence. As we understand the claim with respect to the Lillypilly, it is not that it has distorted the fence, but that it may well do so. 12With respect to the Lillypilly, the position that we have adopted consistently in the past, set out in a tree dispute guidance decision called Yang v Scerri [2007] NSWLEC 592, is that the likelihood of future damage has to be damage within about 12 months from the date of our hearing. We have no evidence that would enable us to conclude that the Lillypilly is likely to cause damage to the McDonnell's property during that period of time. As a consequence, there is no basis either on damage or likely future damage that would cause us to order any intervention with, let alone removal of, the Lillypilly tree and the application with respect to that tree is therefore dismissed. 13With respect to the Jacaranda there was a significant intervention with the removal of the original third leader in about 2006 and there has been pruning of significant root growth that extended onto the McDonnell's property at the time the paving was relaid. The severed end of a major root, some 2 inches or so into the McDonnell's property is evidence of that root pruning. 14The paving that is in the vicinity of the tree has been re-laid by the McDonnells and we were able to observe a number of undulations in it. However we also observe that there are two specific matters we should note about those undulations. The first is that in the proximity to the tree, the undulations occur in several instances at right angles to the direction that any roots that might remain would be growing from the tree, and secondly that there are similar undulations to those that are in the vicinity of the tree at some considerable distance away from the tree at a point where we have no evidence that there either was, or is now, any root growth from the tree. 15As a consequence of that, we are unable to conclude that there is any proper evidentiary basis for determining that the undulations of the paving have been caused by the roots from the tree. Therefore, in the absence of such evidence, there is no basis upon which we could conclude that any order should be made with respect to the paving, either of a compensatory nature or warranting intervention with the tree. 16There is no doubt that the Jacaranda has caused a lifting and a distorting of the fence. It is, however, a purely aesthetic impact rather than one that acts on any functionality of the fence. The present position is that we are satisfied as a matter of law that the Jacaranda has damaged the fence, thus meeting the statutory test invoking our jurisdiction. However as a matter of discretion, having regard to the aesthetic and environmental benefits that are provided by the Jacaranda tree, compared to the aesthetic impact of the tree on the fence, we are not satisfied that we should order any intervention with, let alone removal of, the Jacaranda. 17That is not to say that if circumstances changed significantly in the future, a further application could not be made by the McDonnells in light of those changed circumstances, consistent with the decision of the Court in Hinde v Anderson & anor [2009] NSWLEC 1148. We observed in drawing attention to the fact that future applications are possible, that the nature of the evidence that would have to be disclosed is also discussed in Zangari v Miller (No 2) [2010] NSWLEC 1093. That is, that the evidence would have to be new evidence disclosing new damage or risk that had arisen since this decision was given. 18A similar position arises with respect to the second of the palm trees that has caused in the past a mild distortion of the fence. As far as we can see, it has not made any functional impact on the fence and therefore it does not provide any basis, balancing the aesthetic benefits that come from that tree, to order any intervention with, or removal of, that tree. 19As a consequence, we propose to dismiss the application to the extent that it seeks the removal of any of the trees. 20We turn now to the question of compensation. The application has been amended so as to abandon a number of the aspects of compensation that were originally claimed. 21There are three matters that are remaining for our consideration. In this regard the first is a claim for reimbursement of the application fee; that is a matter of costs, which does not fall within the jurisdiction of Commissioners of the Court to deal with and we are therefore unable to make an order in that regard even if we were minded to do so. We have dealt the question of the paving and the like and we are unable to be satisfied that any work is required to the paving on the basis of the past growth of the roots of the tree or the present state of that paving. That simply leaves the question of the inspection fees from a Mr Plum who was engaged by the applicant to undertake an inspection of the tree at a cost of $100. We consider that was a reasonable cost incurred in understanding the matters that have been dealt with in the application and we propose to order that the respondents reimburse the applicant for the sum of $100 for those purposes to be paid within 14 days of today's date. 22As a consequence of that, the orders of the Court are: (1)The application to remove a Jacaranda, a Lillypilly and two Bangalow Palms is refused. (2)The respondents are ordered to pay the applicant the sum of $100 within 14 days as reimbursement of the inspection fees for the tree. Tim Moore Senior Commissioner of the Court 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: 18 October 2012