Teasdale v F Tohme as the executrix of the estate of the late Mehsen Tohme & anor

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1These proceedings are brought pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) and concern three trees located on the property that adjoins the applicant's property to the east. The three trees are two Turpentines and an Angophora costata . The two Turpentines are located along the common north-south running boundary, between the two properties, with the first of them located in front of the building line of the applicant's house and the second located in the vicinity of the corner on the south-east of the applicant's dwelling. The third tree, the Angophora costata , is located in the centre of the rear yard of the adjacent property. 2The premises that are those upon which the trees are growing form part of the estate of a person who died some years ago. The application was filed on 4 August 2010, nominating that person as the owner of the property. As a consequence of difficulties in establishing precisely who should be the respondent of the proceedings, on 16 November 2010 Craig J made orders that had the effect of joining the tenant of the property upon which the trees are growing as a respondent, and joining the personal legal representative or representatives of the late owner of the property as respondents. During the course of this morning's hearing, the applicant has indicated that he does not seek orders against the occupier of the premises, that is against the tenant, and I pay no further consideration to whether or not such orders could be appropriate or not. 3The matters that are raised with respect to the three trees each need to be considered against the jurisdictional tests set down in s 10(2) of the Act - those tests being, in 10(2)(a), whether the tree has caused, is causing or is likely in the near future to cause damage to the applicant's property, or, in s 10(2)(b), whether the tree is likely to cause injury to any person. With respect to the third of the elements in 10(2)(a), the Court has held that as guidance, the near future means 12 months or so from the date of the hearing, that being set out in Yang v Scerri [2007] NSWLEC 592 - a decision given under this legislation. As a consequence, within that guidance, it is necessary for me to consider whether each of the trees satisfies one or more of those four tests pursuant to s 10(2), before I can be satisfied that I have jurisdiction to consider the various matters contained in s 12 of the Act and, after that consideration, whether I should make any order pursuant to s 9 of the Act. 4I turn first to consider the Turpentine tree that is closest to the street. The applicant raises, with respect to this tree, a number of matters of concern to him. The first is that the depositing of leaves, fruits and twigs from this tree constitutes a trip hazard on his property and thus that the provisions of s 10(2)(b) are satisfied. He also questions whether, given the fact that this tree has multiple co-dominant leaders, it is also a risk of failure and likely to cause injury to persons on his property. He is concerned that the detritus that falls from the tree, constitutes an a risk of damage to his property, in that it prevents him from undertaking the final sealing of his driveway, which is presently constructed of concrete, and that the roots of the tree may damage the driveway. He is also concerned that this tree, because of the state of the adjacent house, which is are a rundown fibro cottage, is a risk of an electrical fire in the house, causing fire in the tree and thus damage to his property. 5I deal with the last matter first, as it can be disposed of summarily. If the cottage catches fire, the fire will be caused by the cottage and not by the tree. The risk of fire from an unsatisfactorily maintained property is as a consequence of the lack of that maintenance and is not a risk arising from the tree. Such a risk, if it were to be established to exist, is a matter about which I have no evidence other than the assertion of the applicant. Such a risk is not a risk that will found the jurisdiction of the Court under s 10(2) of the Act. 6With respect to the other matters, I turn first to the question of the roots of this tree. My inspection of the applicant's property shows that there is no damage that has been caused or is currently being caused to his property, by the roots of the tree. There is no indication that would cause me to conclude that it is likely that such damage would be occasioned during the next 12 months. In any event, the nature of the evidence given by a Mr Donovan, a structural engineer (given by letter dated 27 May 2010 and subject to the relevant expert witness notation pursuant to the Uniform Civil Procedure Rules 2005 on 18 January 2011), merely refers to a potential risk to the structural integrity of the house foundation and no indication as to whether or not that risk is likely to be occasioned in the near future. In any event, there is nothing that sets out Mr Donovan's qualifications and certainly there is no indication that he has any arboricultural qualifications. As a consequence, it is not open to me to conclude that any of the tests in s 10(2)(a) are satisfied with respect to the first tree. 7As to the question of the risk that the likelihood of causing injury to any person, I accept the applicant's submission and his evidence, that there have been persons who have been likely to be injured as a consequence of trip and fall. However, in Barker v Kyriakidis [2007] NSWLEC 292, the Court published a tree dispute principle that said that, for those persons who have the benefit (both aesthetic and environmental) of trees in an urban area, it is reasonable to expect that ordinary maintenance would be undertaken by those persons to clean up detritus such as leaves, nuts, berries, fruits, twigs and the like that would fall from those trees. That position would apply here, as there is no significant reason why I should depart from that principle with respect to the first of the Turpentines. There are no structural defects in the tree. As a consequence, the application with respect to the first of the Turpentines is dismissed. 8With respect to the second of the Turpentines, this is also one with multiple leaders, two of them being co-dominant and with a number of separations on each of those co-dominant leaders making, in effect, multiple trunks to that tree. With respect to the applicant's complaints about the dropping of detritus from this tree, the principle in Barker also applies, and there is equally no reason why I should depart from it concerning that tree. 9I have carefully considered the tree dispute principle (published by the Court in Black v Johnson (No 2) [2007] NSWLEC 513), concerning the location of the applicant's dwelling and whether it is reasonable under the circumstances of the development potential of his allotment for his new house, erected only some two years ago, to have been erected at its present location. Black v Johnson dealt with the question of whether or not it was appropriate to apportion cost between neighbours of any intervention, with respect to a tree where the tree was there first. I am satisfied that there is nothing unusual or otherwise disentitling about the location of the applicant's development on his site that will trigger the tree dispute principle in Black v Johnson . As a consequence, if any orders are to be made with respect to the second of the two Turpentines, it is appropriate that the first respondent meet the cost of carrying out of those orders. 10I have carefully examined, by climbing on a ladder and looking over the fence, all of the branch attachments of the second Turpentine and the extent, limited as it is, of dead wood in the canopy of that tree. With the exception of two branch attachments, they being branches that are closest to the applicant's property and are branches that have been the subject of pruning, in the past, that does not comply with Australian Standard 4373 of 2007, there is included bark and the risk of failure of each of those branches. In my view, they fail the test under s 10(2)(b) of the Act, in that they are likely to cause injury to a person who is using the side passage of the applicant's property. 11As a consequence, it is appropriate to order the removal of those two branches in accordance with the Australian Standard. With respect to the remainder of the tree, there are dead wood elements in its canopy, which also are potential causes of injury to persons, and I am satisfied for the purposes of s 10(2)(b) of the Act, that that risk of injury is likely. As a consequence it is also appropriate to order the removal of dead wood, down to 20 mm at the point of attachment to the branch structure of the tree. However, there is no damage of visible to the path or the retaining wall on the applicant's property observed by me during the course of the inspection. 12The question of damage risk to the roof is a matter about which there is no evidence as to past or present damage and there is no evidence that it is likely to could occur in the near future. The blockage of gutters, occasioned by the depositing of detritus from the trees, is a matter that falls as a question of discretion, the s 10(2)(a) threshold having been satisfied if I were to take the applicant's case at its highest, by water intruding into his roof or ceiling. This position is also dealt with by the principle in Barker v Kyriakidis and there is again, no reason to depart from that general proposition. 13As a consequence, I order that two branches be removed, at points that will be shown a marked digital photograph of each of them taken by me and incorporated in the orders in this decision, and that dead wood down to 20 mm in diameter at the point of attachment should be removed from the second Turpentine tree. 14I now turn finally to the Angophora costata in the rear yard of the neighbouring property. It is perhaps some 8 or 10 m from the boundary fence between the properties and no element of the tree overhangs the applicant's property. I carefully examined all of the major branch attachments of this tree and there are neither signs of any included bark nor elements of the tree that are a likely risk of failure. There has been no damage occasioned by this tree to the applicant's property. No damage is currently being occasioned, and I am satisfied that it is not likely in the near future that there will be failure of that tree causing damage to the applicant's property. Finally, I am not satisfied, given that there is no history of branch failure of that tree or of branches falling on the applicant's property, that there is any likelihood of injury as a consequence of that tree. With respect to the question of blockage of the applicant's swimming pool filter and the like, the principle in Barker v Kyriakidis also applies. 15As a consequence all of the foregoing: