Taylor v Shehata and anor

Potential damage to the pool 10I estimate T1 to be approximately 6m tall (somewhat smaller than estimated by the respondents' arborist). It is a healthy specimen with a slight lean towards the respondents' property. 11While the applicant sought the opinion of an arborist, Mr Adam Bortol, in regards to T1, Mr Bortol's statement of evidence does not in any way meet the requirements for expert reports as set down in Schedule 7, Expert Witness Code of Conduct, in the Uniform Civil Procedure Rules 2005. Although the statement is of very limited value, it was allowed into evidence as the respondents' arborist referred to it, and it is relied on, in part, by the applicant. 12Mr Bortol's unsubstantiated opinion is that "The Cyprus [sic] pine is on a lean at approximately 65 therefore the roots will enlarge closer to the building and cause structural damage to the foundation. The full removal of the Cyprus pine is recommended. 13Mr Andrew Scales, the respondents' arborist was on site to give oral evidence. He also prepared a report that complies with the Expert Witness Code of Conduct. Mr Scales explained the likely spread and nature of the roots of T1. In his view, the roots of this tree are unlikely to cause any damage to the applicant's pool in the next 12 months. Mr Scales considered that even if the tree fell over, as put to him by Mr Goddard the applicant's solicitor, it would be unlikely that the roots would cause damage to the pool.

Findings - Tree 1 14The applicant stated that Tree 1 has not yet caused any damage to the pool but he is concerned that it may do so in the future and therefore would like it removed. 15With the expertise I bring to the Court, I have no reason to disagree with Mr Scales' opinion that the roots from T1 are unlikely, in the near future, to cause damage to the applicant's property, in particular the pool. At the on-site hearing I saw no damage to any part of the pool, including the coping and the adjoining concrete pathway or anything else that would lead me to conclude that such root damage is likely. While there is a 'theoretical possibility' of future damage, no evidence was adduced to indicate that the threat was imminent. 16In regards to Mr Bortol's statement, it is unclear as to which tree he is referring, as T1 is not close to any building. 17As s 10(2) is not satisfied with respect to T1, the application for its removal is dismissed.

Potential damage to the guttering 18T2 and T3 overhang the applicant's roof by up to about 1.5 m. In the past, the applicant has pruned the trees away from the roof but considers that the trees are now too tall for him to do this safely. While the applicant has replaced the guttering and has installed leaf guard, he is concerned that debris from the trees will accumulate and cause rusting of the guttering. In order to prevent this he seeks orders for the pruning of the trees to 3 m. 19The respondents do not wish to prune the trees as they screen their dwelling from the applicant's upper storey windows. 20In Mr Scales' opinion, pruning the trees to the extent suggested by the applicant would not only not comply with the Australian Standard for tree pruning, it would probably kill the conifer and lead to the suckering of the Brush Cherry. In his opinion, some selective pruning of the overhanging portions may be appropriate however he stated that leaves and other debris would still blow onto his roof from other parts of the trees. 21During the hearing, it was also indicated that a small low branch from T3 is very close to the guttering and could, if allowed to grow, cause physical damage to the guttering.

Findings T2 and T3 22I estimate T2 to be about 8 m tall and T3 10 m tall. I agree with Mr Scales that pruning the trees to the height requested by the applicant would have unacceptable consequences for the health and or structure of the trees and would remove their value as a screen. 23While I am not satisfied that any damage has occurred to the guttering as a consequence of the leaves, or is likely in the near future to occur, as a matter of discretion I would not make any order for any intervention with the trees on the basis of leaf litter. 24In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paras 168 to 173 discusses 'damage' in general. In this discussion, his Honour specifically noted (at para 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. 25Many applications are made on the basis of annoyance or inconvenience 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. 26There 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. While some judicious pruning may be appropriate, it is not something that the Court can order as the Court's power to do so has not been enlivened. 27In regards to the small branchlet growing close to the gutter, the tree is growing slowly and even if the tip of the branch touches the guttering in the next 12 months, given its small size, it is highly unlikely to cause any damage. Therefore I find that s 10(2) is not satisfied in this regard.

Conclusions and orders 28On the basis of the foregoing, 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: 21 June 2013