Small v Friggieri

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicant contends that since August 2013, seven fronds have fallen from two Bangalow Palms growing on the respondent's property onto her property and that of her neighbour. She states that one of these fronds hit her on the wrist and injured her. She is concerned that unless the palms are removed she is at risk of further injury. 2Apart from the applicant's concerns about the ongoing risk of injury, she is also concerned that the fronds may damage her property, in particular the clothesline located directly below the palms, and the roots may damage an area of concrete paving beneath a covered structure in her courtyard. 3Further contentions are raised in regards to a Eucalypt also growing in the respondent's property that the applicant contends has been the source of leaves and twigs deposited on her roof and guttering, which has necessitated additional cleaning. The applicant is also seeking orders for the removal of this tree. 4The application is made pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 5The respondent maintains that the trees are healthy and does not wish to remove them. When he approached Wyong Council, he was advised that the trees were planted as a condition of consent for the development of the residential flat building in which the respondent owns property and that it would be unlikely that council permission would be granted for their removal. He states that the council gave oral advice to the effect that the applicant would be entitled to remove overhanging material. No council officer was present at the hearing to confirm this information. 6By way of background, the applicant's property is one of two adjoining villa-style units which back onto the rear courtyard of the respondent's unit. The applicant's villa is to the northeast, the adjoining villa is towards the southwest of the respondent's property. All units have adjoining small courtyard gardens. 7In applications under Part 2 of the Act, the key jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is satisfied that the tree concerned 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 about which an application is made. 8If any of the tests are met, the Court's power under s 9 of the Act to make any orders it thinks fit under s 9 of the Act is engaged. 9As neither party engaged an arborist to provide independent expert evidence these observations are based on the arboricultural expertise I bring to the Court. 10Dealing first with Tree 3, the Eucalypt, this tree is growing in the southern corner of the respondent's property. It is some distance from the applicant's property and no part of it overhangs her property. It has been pruned away from the adjoining villa. 11The applicant was unable to provide any evidence of actual damage arising from the asserted dropping of leaves. I observed the roof and gutters to be almost free of any debris. 12In my view, no evidence has been adduced to satisfy any of the tests in s 10(2) and therefore no orders can be made. 13However, if I am wrong in this finding, as a matter of discretion the discussion and observations on site did not indicate any exceptional circumstances that would lead the Court to deviate from the Tree Dispute Principle published 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. 14Turning to the two palms, Trees 1 and 2, these are planted very close together and close the fences that divide the applicant's property with the adjoining villa and the respondent's property. Tree 1 is the taller of the two palms and is closest to the applicant's property. Tree 2 projects slightly to the southwest and the adjoining villa. 15In regards to the alleged potential for the roots of the palms to cause damage to her patio, the applicant was unable to produce any evidence of root incursion, the proximity of the roots to the paving, or any other proof that damage was imminent, or there is a "real, appreciable probability" of irreparable damage (see Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at [200]). The Court has published a guidance decision in Yang v Scerri [2007] NSWLEC 592 and determined that the 'near future' is a period of 12 months from the date of the hearing. 16There is photographic evidence of fallen fronds in the applicant's courtyard and on her clothesline. The photographs and the oral evidence indicate that the large majority of fronds that have fallen have been dead, although one photograph shows a frond with a base that is still relatively green. 17Given the height of the palms, their proximity to the clothesline, and the uncontested evidence of frond failure and subsequent injury, I am satisfied to the extent required by s 10(2) that falling fronds could cause injury to any person on any of the three courtyards, and could do damage to the applicant's property. 18Therefore as the Court's jurisdiction to make orders is engaged consideration of any relevant matters in s 12 of the Act is required before determining what, if any, orders should be made. 19The shedding and falling of dead fronds is a normal process; old fronds are phased out and eventually shed as new fronds are produced. In my experience it is uncommon for healthy fronds to be shed without warning. Generally the frond gradually dies and browns; as it dries it becomes more brittle and collapses and hangs from the stem; eventually the frond falls to the ground. Therefore, there is generally advanced warning of the dropping of a frond. 20Given the constrained and limited areas of private open space in all three affected courtyards, I consider some orders are appropriate. 21I agree with the respondent that the trees are healthy and provide visual amenity for the occupants of the respondent's property. They also contribute to the immediate landscape and break up the built form of the unit block. 22While the applicant seeks the removal of the palms I consider this to be an extreme measure and not warranted at this stage. Orders will be made for the regular inspection of the trees and any necessary removal of dead and dying fronds. As there are two dead fronds and one declining frond in Tree 2, the first inspection and removal will be required within 21 days of this judgment. 23As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, the applicant can make a fresh application if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence. 24Similarly should the respondent's position change, the respondent may apply to the Court to vary the Orders. 25Therefore, the Orders of the Court are: (1)The application is upheld in part. (2)Within 21 days of the date of this judgment the respondent is to engage and pay for an AQF level 3 arborist to inspect the two Bangalow Palms at the rear of his property. Any dead and declining fronds are to be removed in accordance with the relevant provisions of AS4373: 2007 - Pruning of Amenity Trees. (3)The work in (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4)Commencing two months after the first inspection and frond removal, the work in (2) is to be undertaken every two months for the life of the palms. (5)Should it be required, the applicant is to provide all necessary access for the safe and efficient carrying out of the work in (2) and (4) on reasonable notice. (6)The application to remove the trees is dismissed.