Purnell & anor v Hodge & anor; Steiner & anor v Hodge & anor - [2012] NSWLEC 1362 - NSWLEC 2012 case summary — Zoe

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Purnell & anor v Hodge & anor; Steiner & anor v Hodge & anor

[2012] NSWLEC 1362

Land and Environment Court (NSW)|2012-10-22

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2012-10-22

Catchwords

TREES [NEIGHBOURS] Damage to property
potential injury
Hedge - obstruction of sunlight
not a hedge for the purpose of the Act

Source

Original judgment source is linked above.

Catchwords

TREES [NEIGHBOURS] Damage to propertypotential injuryHedge - obstruction of sunlightnot a hedge for the purpose of the Act20824 of 2012

Judgment (11 paragraphs)

[1]

Judgment 1COMMISSIONER: These are two separate applications from the owners of two properties in Port Macquarie that adjoin the respondents' property. Both applications are made under s 7 part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 2The applicants had proposed to submit a joint application however, amongst other things, s7 of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the land (that is the applicant's land) and similarly, s 14B enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land (that is the applicant's land). Therefore under both Parts of the Act, separate applications must be lodged for individual affected properties. 3Both applications concern potential damage or injury and obstruction of sunlight to windows. 4The respondents' property is a long rectangular block with a north-south alignment; the applicants' properties are battle-axe blocks that form part of a more recent subdivision and adjoin the southern section of the eastern boundary of the respondents' property. 5Both matters were heard concurrently and the hearing was held on site. In addition to the parties, Mr Robert Hanlon, Tree Assessment Officer, Port Macquarie - Hastings Council attended and assisted the Court. 6For the purposes of this judgment, matter number 12/20800 is referred to as the Purnell property and matter 12/ 20824 is the Steiner/Taylor property.

[2]

The trees 7The diagrams in both applications nominate10 to 11 trees, with details given for 9 to 11 of them. The diagrams also show additional trees on the respondents' property that are not subject to the applications. The applicants stated that they had sought assistance from several arborists but conflicting advice was received in regards to species identification. 8The hearing commenced with an inspection of the trees on the respondents' property. Clarification was sought as to what trees formed part of the application and which did not as there are many more trees present than nominated. 9The following table summarises the trees subject to the applications from both parties. Tree 11 is only relevant to the Steiner/Taylor property. At the hearing, some additional trees were allowed to be included in the applications. Tree No. Species (confirmed on site) - Common name Comments 1 China Doll Tree South-eastern corner; some overhang onto Purnell property 2 Tuckeroo 5-6m from T1; some smaller trees in between 3 Cheese Tree (not Fiddlewood) Twin-trunked tree in poor condition close to Purnell boundary; 3-4m from T2; smaller trees between 3a Cheese Tree Triple-trunked specimen about 1.5-2m from T 3 4 Hakea (not Bottlebrush) Close to Purnell boundary; small tree; about 2m from T3a 5 Bottlebrush Small tree some 3-4 m from T4 6 Not pressed 7 Banksia (B. integrifolia) Relatively close to Steiner/Taylor boundary; about 1.5m from T5 8 Camphor Laurel A tall, mature tree some 4-5 m from the dividing fence and to the west of a large multi-trunked Hibiscus that is not part of either application 8a Camphor Laurel (stump) A stump of an apparently mature tree the roots of which were alleged to have encroached onto the Steiner/Taylor property; the roots were severed. The stump has some small suckers. 9 Camphor Laurel As for Tree 8; about 4m from T8 10 Fiddlewood Many metres from T7 11 Banksia ((B. integrifolia) Abuts the dividing fence at the north-western corner of the Steiner/Taylor property; leaning to the north towards the respondents' property

[6]

Findings 20In regards to 'council policy', Mr Hanlon stated that in the Development Control Plan adopted in 2011, council approval is not required for the removal of any tree within 3m of a habitable building if the tree is located on the same property as the habitable building. 21There is sometimes confusion about the respective roles of the Court and councils in regards to disputes about trees. This is discussed in Ghazal v Vella (No. 2) [2011] NSWLEC 1340. While the Court may have regard to council controls, they must be relevant to the Court's jurisdiction. In applications under Part 2, the fact that a tree may be close to property on the applicant's land matters little unless any element of s 10(2) is satisfied. 22While there may have been some encroachment by roots, the roots have been removed/ poisoned and there is no evidence that they have caused any damage or are likely to do so in the near future. In regards to the two cracks, there was no evidence to prove that they had been caused by any of the respondents' trees. 23Similarly, no evidence was adduced as to what branches/ trees may cause injury. The only tree that directly overhangs the Purnell property is T1 and I saw no evidence to suggest that any part of this tree was likely to fail and cause injury. 24On the evidence before me, I am not satisfied to the level required by s 10(2) that any of the trees the subject of the application have caused, are causing, or are likely in the near future to cause, damage to the Purnell property or injury to any person. 25Therefore as s 10(2) is not satisfied, the Court cannot make any orders for any intervention with any of the trees that are subject to the application. Therefore this element of the application is dismissed. 26I note that the applicants in this matter seek compensation for a sum of $1640 that includes the application filing fee, lawyers fees, cleaning of the western wall of their house, two vacuum blowers and gutter guard. In regards to the filing fee and legal costs, Commissioners do not have the jurisdiction to award such costs and a separate Notice of Motion would have to be filed; this would then be heard by a Registrar or Judge of the Court. In regards to the other items, as s 10(2) has not been satisfied, the Court has no jurisdiction to make any orders for compensation and no enquiry into those costs is required.

[7]

Part 2 - Steiner/Taylor property 27The applicants in this matter have not specified what orders they are seeking the Court to make. It is assumed that should the jurisdictional tests be satisfied, s 9 of the Act enables the Court to make any orders it thinks fit to remedy, restrain or prevent damage to property or injury to any person as a consequence of any of the trees the subject of the application. 28The applicants are concerned that branches falling from trees, especially in windy conditions, could cause damage to their property or injure someone. They state that the guttering and downpipes fill with leaves and that damp conditions create mould - both internally and externally. They are concerned that T11 is growing against the dividing fence and that it could cause the fence to fall over. 29The application includes photographs taken in 2009 of large woody roots from T8a that had grown onto their property. They removed the roots, and in March 2009, T8a was removed with the applicants contributing 60% of the cost of doing so. The applicants are concerned that as the stump is now suckering, there may be further encroachment by roots. I note that no damage had been caused to the Steiner/Taylor property by those roots but the action was precautionary. 30In material included in the application the applicants state that in mid 2006 they pruned low overhanging branches away from their property. This involved the hiring of a lift and saw as well as tip fees. 31Tree 11 is leaning against the timber fence but I saw no damage to the fence that could be specifically attributed to the tree. According to the respondents, the paling fence was erected in 1988. At 24 years old it is showing normal signs of wear and tear. The section of fence against which T 11 is leaning is partly covered by a lean-to shed. 32When asked, the applicants could not provide me with any evidence of actual damage caused to the downpipes or guttering of their dwelling as a consequence of leaves from the respondents' trees. They stated that there was some internal mould and I was shown mould on the gable end beneath the eaves on the southern end of the house. They stated that leaves had blocked their pool filter but this was not mentioned in their application and on-site it was admitted that the source of the leaves could not be confirmed. 33In regards to injury, the concern is the potential for branches to fall onto the roof above a bedroom. When asked, the applicants stated that to date, only small twigs or branchlets had fallen onto the roof and no damage or injury had occurred.

[8]

Findings 34In regards to T11, while it is close to the fence, I saw no evidence to suggest that the tree was likely in the near future to cause the failure of the fence or any other damage. 35In the absence of any evidence, I am not satisfied that leaves have caused any actual damage to the guttering or downpipes of the Steiner/Taylor dwelling. 36In Robson v Leischke [2008] NSWLEC 152, Preston CJ at paras 168 to 173 discusses 'damage' in general. In this discussion, his Honour specifically noted at [171] that: 171 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. 37Many 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 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, 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. 38There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [11]-[14], the Principle was extended to include the cleaning of mould and slime. 39With respect to the roots of T8a, while the Court has jurisdiction over trees that have been removed, there is no evidence that these roots caused any damage and there is no evidence that they are likely to do so in the near future. The suckers on the stump are very weak and the roots have been removed from the applicants' property. 40On the evidence before me, I am not satisfied that any of the respondents' trees are likely to cause injury to any person, in particular, anyone on the applicants' property. 41In conclusion I find that s 10(2) has not been satisfied for any elements of the application under Part 2. 42Ms Steiner and Mr Taylor are seeking orders for compensation of a sum of $1180 for an arborist, hire of a saw and lift, tip fees, and a sum of $400 presumably for the replacement of mouldy cloths and shoes. Notwithstanding the fact that there are no receipts to substantiate this claim, as s 10(2) is not satisfied for any element of the application under Part 2, the Court has no jurisdiction to consider any compensation.

Purnell & anor v Hodge & anor; Steiner & anor v Hodge & anor

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Catchwords

Judgment (11 paragraphs)

Cases Cited (8)