Nakkash v Jones

Land and Environment Court (NSW)|2020-07-23

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr and Mrs Nakkash of Summer Hill, relating to a Ficus lyrata (Fiddle Leaf Fig) (the tree) located in the adjacent neighbouring property.

Background

The respondents, Mr Jones & Ms Savage, occupied their property 32 years ago, and planted the tree about 20 years ago, about 700mm from their back yard rear boundary, which is Mr and Mrs Nakkash's northern side boundary. This boundary runs approximately east - west, and is currently delineated by a timber paling fence, about 1.8 metres in height.
The tree is now mature, notwithstanding it may not have reached its maximum potential height. It stands approximately nine metres tall with a largely symmetrical canopy spread of about ten metres from east - west, and about eight metres across its north-south axis. The tree's branches extend over parts of Mr and Mrs Nakkash's rear yard by two to three metres, and would probably extend by about four metres, had it not been pruned on occasions in the past. In its natural environment in West Africa, the usual maximum height of this species is about 12 - 13 metres.

The onsite hearing

The hearing commenced in the respondents' rear yard with an inspection of the tree, and adjacent vegetation in their densely planted garden. This was followed by an inspection of the applicants' rear yard, and specifically, the areas of perceived risk with respect to falling figs. Both the applicants and the respondents attended the hearing.

The applicant's case

Mr and Mrs Nakkash, who have occupied their home for about 16 years, seek orders granting tree removal, to prevent injury to a member of their family, or any other person. Their family comprises two adults and two children (aged 11 and 15).
The source of the alleged risk of injury is the falling fruit. The applicants submit that the tree bears "thousands of these figs" during its main fruiting period from late July to November, and that many of them fall over their property. They also note fruit fall during the tree's secondary fruiting period, in March.
Mr and Mrs Nakkash claim that this risk of injury is highly likely, and that injury has already occurred. They note that this injury may result from being hit by the falling figs, by slipping on a fresh fig, or by tripping on a dried, hardened, shrunken fig.

The respondents' case

Mr Jones & Ms Savage resist the applicants' claim for removal, on the basis that the falling fruit do not present a genuine risk of injury, because of the negative impact on their privacy, and on shading and cooling provided by the tree, and on other vegetation in their garden, from which they derive great pleasure. They also noted that the tree provided screening from unattractive sheds and buildings in neighbouring properties, along with other environmental services such as habitat for local fauna. They concur with the applicants with respect to the period of fruiting, and add that fruiting density normally peaks in September and October.
The respondents offered an alternative solution of pruning some of the overhanging branches by an arborist, subject to permission from Inner West Council (Council), along with adherence to AS4373 Pruning of Amenity Trees. They also offered to pay for these works, and for the cost of the Council application fee.

Jurisdictional requirements

With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
The Court is obliged to consider a number of matters pursuant to s 10 of the Act.
As required by s 10(1)(a), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated. Mr and Mrs Nakkash provided evidence of ongoing written and verbal negotiations with the respondents, and of attending mediation organised through the Community Justice network.
The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned; 1. has caused, is causing or is likely, in the near future, to cause damage to the applicant's property, or 2. is likely to cause injury to any person.

Risk of Injury

Using the guidance decision published in Yang v Scerri [2007] NSWLEC 592 (Yang ) with respect to injury, the Court considers the risk posed by a tree based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.
My tree inspection revealed very few developing fruit, which Mr and Mrs Nakkash considered atypical, given that the hearing was held at the beginning of the main fruiting season. This may be the case as it is not uncommon for fruiting of trees to be variable from season to season, in terms of density and timing, in response to prevailing weather and other environmental conditions.
Mr Jones and Ms Savage did not dispute this claim that the tree normally fruited profusely, but Ms Savage did note that in all the years they had occupied the property, and used the rear garden often and extensively, neither she nor Mr Jones had been hit by a falling fig, let alone been injured.
The area under the tree canopy in the applicants' property, which would be the primary target of the falling fruit, is a relatively small part of the yard, and it is clear of the direct route from the dwelling's rear access to sheds at the rear. Though the canopy is shown as an approximate circle in the plan within the application, the overhang has in fact been pruned back markedly towards the boundary, such that it overhangs by less than three metres at the maximum. Therefore, the occupation rate of this zone would likely be low, especially during winter and early spring, when much of the fruiting occurs.
Mr and Mrs Nakkash also claim that "on breezy or windy days, due to the tree's sway, height and proximity to our common property boundary, the figs are propelled well into our rear yard", and they have indicated two spots on the plan, in close proximity to the rear stairs of their dwelling as R2 and R3, to reflect where figs were located, after having been "thrown" from the tree during windy conditions. As these points are located about ten metres from the closest part of the canopy, I would suggest that it would be most likely that the fruit had bounced over to here, and extremely unlikely and rare for the figs to land here directly from the tree.
As the tree is only about nine metres tall, and does not emerge conspicuously above the level of trees nearby or surrounding houses, such an event would only be likely during strong wind and storm conditions, when the occupation rate of areas outside the house is normally significantly less than during calm weather.
A substantiating element of the applicants' claim is based on a comparison between the figs and golf balls, which they show to be of a similar size when fresh. Using photographs of the two floating in separate glasses of water, the respondents display that the fig is far less dense than a golf ball. I suggest that the maximum fall distance onto a person below, being about 7.5 metres, would appear insufficient for the development of sufficient velocity to cause injury of any significance, even if the fruit was as hard and dense as a golf ball.
The applicants refer to numerous occasions, over several years, where members of their family have sustained mild injuries from being hit by a falling fig on their back, shoulder or sides, by slipping on a fresh fig, or by tripping on a dried, hardened, shrunken fig. An anecdote, involving a back injury from tripping on a fig in November 2019, is referenced, but no medical evidence has been provided to support this or any other claims of injury.
There is no genuine evidence provided which supports the applicant's fear and apprehension. No tree risk assessment was provided to support this claim, and the level of risk from falling fruit is considered low and acceptable. While it is not entirely unlikely that one would be hit by a falling fig, and that the figs may perhaps "hurt and startle when they hit", the likelihood of consequential injury of any significance is extremely remote. This element of the claim is thus dismissed.

Dropping debris

With respect to injury caused by slipping on a fresh fig, or by tripping on a dried, hardened fig, any related risk can be mitigated by regular garden maintenance.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, Preston CJ states that "the mere fact that a tree is situated on a person's land is insufficient reason by itself to justify making that person an insurer of other persons for any harm the tree may have caused to them or their property." At [56], he states that mere encroachment is not damage, and at [171] he said, "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."
A significant number of 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 (Barker) 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, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree."
To further substantiate their position, Ms Savage also referred to cases considered by the Court, related to risk of injury resulting from cones falling from Araucaria bidwillii (Bunya Pine). These cones are often approximately the size of an adult human head, with weight between five and ten kilograms, and the fall distance from these tall trees often exceeds 20 metres. Even in these circumstances, the Court normally orders options such of removal of immature fruit over 100mm, rather than tree removal (see Adamski v Betty [2007] NSWLEC 200).
This Tree Dispute Principle in Barker clearly applies here. This damage is considered minor, and the required maintenance is reasonable, and therefore this element is also dismissed.
As an alternative to removal, Mr and Mrs Nakkash have repeatedly suggested trialling the reduction in the height of the tree by more than half, plus heavy pruning of the canopy spread, particularly the sector which is extending over, and adjacent to their property.
The respondents have rejected this suggestion because pruning of this type and extent would constitute "poor tree management and would contravene the Australian Standard, 'Pruning of Amenity Trees'".
I concur with the respondents' position, as the suggested pruning would put this very healthy tree under heavy stress, likely reduce the life expectancy of the tree, almost certainly result in rapid development of poorly attached vertical, epicormic growth, and thus render the otherwise stable tree canopy far less safe for both parties. I agree also, that such pruning would negatively impact on the vegetation under and near the tree, disrupt the micro-climate afforded to these plants near the tree, and significantly reduce the amenity provided by their garden.
Mr and Mrs Nakkash also offered to contribute to the cost of purchase and planting of an advanced tree so as to reduce the negative impacts from the removal of the existing Fig. The respondents also reject this idea, on the basis of excessive residual root competition, and because of the long interim before any such replacement tree would provide benefits similar to those currently provided by the existing fig tree. Again, I concur with the respondents.
Returning to the guidance provided in Yang with respect to injury, the risk posed by this tree, based on its characteristics, any history of previous failures, and the circumstances of the site apparent at the time of the hearing can only be viewed as very low.

Conclusion

I have examined the tree and the site and have reached the following conclusions: 1. There are no obvious characteristics of this tree that cause concern, and no evidence of actual injury resulting from the tree. 2. The level of risk from figs dropping onto the rear yard is considered low and acceptable. 3. No evidence has been provided which justifies tree removal.

Orders

The Court orders that: 1. The application is dismissed.

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: 24 August 2020

At a glance

Court

Decision date

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Judgment (11 paragraphs)

Parties

Cases Cited (5)