Pickford v Hatzidimitrion [2012] NSWLEC 1023 | Case summary

Land and Environment Court (NSW)|2012-02-09

Judgment This decision was given as an oral decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Elermore Vale against the owners of two trees growing on an adjoining property. 2The applicants are seeking Court orders for the removal of the two trees. The application is based on the following contentions:

Possible damage to the driveway/pathway by tree roots;
Actual and future damage to the slab of a building used as a hair salon by the roots of the trees;
Risk of injury and damage as a result of the trees falling onto the applicants' property, particularly in high winds;
Risk of damage and injury from overhanging and falling branches;
Leaf and twig drop onto gutters, paving, and the pool;
Slipping hazards associated with fallen leaves; and
Staining of the paving by the dropping of sap. 3The respondents contend that the damage to the paving/ driveway could be due to the parking of vehicles or the fact that the property is located in a mine subsidence area.

The trees 4The trees are two mature Corymbia maculata (Spotted Gum) growing near the northern side boundary at the rear of the respondents' property. Both trees are roughly between 14 and 16m tall. Tree 1 (T1) is approximately 2.5m from the dividing fence and within about 3.5m of the southern wall of the hair salon. Tree 2 is to the southwest of T1 and some 5m away from the dividing fence. Less than 5% of T2 overhangs the rear corner of the applicants' property. Approximately 15% or so of T2 overhangs part of the salon and pathway leading to it. 5At the hearing, the trees were visually inspected from the ground; binoculars were used to assess the upper parts of the canopies and for a close view of the branch attachments. I observed both trees to be healthy and normal individuals. Tree 1 is particularly healthy with less than 2% dead wood overall, and no dead wood of any significant size in the portion of the canopy that overhangs the applicants' property. I saw no structural defects in either tree, the branch attachments appeared normal and sound, and there was no evidence of any instability of the root crown. 6Some secondary woody roots were observed in a partial trench dug between the dividing fence and the southern wall of the salon. The largest roots were approximately 25mm in diameter. Some slightly larger roots are shown in photographs included in exhibit B. No cracks were seen in the adjoining slab floor of the salon. The soil was noted as being very clayey. 7Photographs tendered in evidence show a number of small green branches that had blown out of the trees on during a storm on 4 January 2012. The branches appear to be no more than 20mm in diameter at their ends. Photographs also show leaves in gutters, on paving and in the pool. Apart from the nuisance the leaves create, the applicants submit that they present a slipping hazard for anyone, including their clients, using the path. 8I was shown cracks in the stencilled topcoat of the ramped pathway leading to the salon. There were cracks in many directions. The path appears to have been constructed on fill. The pavement beneath the more recent topcoat is thought to be 30-40 years old. The applicants contend that the cracks could be caused by the roots of the trees. 9I was also shown a raised section of the concrete floor of the salon. It is assumed that this is the join between two sections of the slab (the floor covering prevented confirmation). The slab is also 30-40 years old. It is the applicant's contention that the lifting of the section has been caused by the roots of the trees observed in the trench, or indeed other roots below, and that the damage may worsen.

Jurisdiction 10Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any tree subject to the application 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. Given that the applicants are concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in the circumstances. In regards to injury, the risk must be reasonably foreseeable and be based on the evidence available at the time of the hearing. 11If any of the tests in s 10(2) are satisfied for any or all of the trees, the Court's jurisdiction is enlivened and the Court may make any order it thinks fit in accordance with s 9 of the Act. 12In these matters, the onus is on the applicant to prove the connection between the tree and the alleged damage/ risk of injury. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Craig J discusses the obligation created by s 10 for the Court to be satisfied of the causal nexus between the tree the subject of an application and the damage claimed by the applicants. This requires an assessment of all the evidence before the Court, which may include factors other than the tree. The level of satisfaction is " the preponderance of probability".

Findings 13I saw nothing in the appearance or the form of either tree that would lead me to conclude that either tree posed a risk of injury to anyone in the foreseeable future. The percentage of dead wood seen at the time of the hearing is very low, almost negligible. Even when it eventually falls from the trees it is unlikely to cause any damage or injury. Similarly, there is no evidence that either tree is going to fall over. In regards to the photographs of the small branches that fell after a storm, this is quite normal. There was no evidence at the time of the hearing that any larger branches are likely to fail. 14With respect to the roots seen in the vicinity of the salon's slab, it is entirely predictable that such woody roots would be seen in the surface layers of soil within 3.5m from a mature tree. However, there is no evidence that the roots have caused, or are likely in the near future to cause, damage to the slab. 15Similarly, with respect to the cracking of the pathway, there is no evidence that this has been caused by the roots of either of the Spotted Gums. There are other possible factors including subsidence of fill, problems with the underlying older pavement, the roots of an adjacent row of Murraya shrubs on the applicants' property, land subsidence and so on. It is not for the Court to discover the cause. 16With respect to the leaf drop and staining, no damage or real risk of injury has been established. The Court has published a long-standing Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 in regards to the dropping of leaves etc. It states: 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, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. 17There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the applicant has convinced the Court of exceptional circumstances. Some recent examples include - Inbari & anor v Rankin [2010] NSWLEC 1236, Lazarus v Le [2010] NSWLEC 1118. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 the Principle was extended to include the cleaning of mould and slime (paras 11-14) which is similar to the issue of staining raised by the applicants in this matter. 18There is nothing before me in this matter that would lead me to depart from this Principle. 19The applicants are concerned that in order to prove the damage to the pavement, they would have to dig up the pathway. I draw their attention to Zangari v Miller (No 2) [2010] NSWLEC 1093 and McCallum v Riordan & anor [2011] NSWLEC 1009. It should also be noted that if the Court has made a decision on a tree application, even if the application was refused, it is possible for an applicant to make a subsequent or fresh application. However, a fresh application can only be made if circumstances have changed since the Court determined the earlier application ( Hinde v Anderson & anor [2009] NSWLEC 1148).

Orders 20On the basis of the forgoing, as none of the tests in s 10(2) are satisfied to the extent required for either tree, the Orders of the Court are: (1)The application is dismissed.

J 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: 09 February 2012

Pickford v Hatzidimitrion

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