The Owners Corporation SP 16349 v Hugo & anor

Land and Environment Court (NSW)|2012-10-04

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Macquarie Fields against the owners of a Pepper Tree (Schinus areira) growing at the rear of an adjoining property. 2The applicant asks the Court to order the removal of the tree at the respondents' expense. This order is sought for the following reasons:

Blockage of a sewer pipe on two occasions;
Future impact of root growth on the sewer pipes;
Fallout of leaves onto the roof necessitating regular cleaning;
The risk that leaves under the eaves could be an accelerant in the event of a fire;
Corrosion of guttering as a consequence of leaf drop;
Bending of the metal dividing fence;
Lifting of pavers;
The risk of injury should a large branch fail; and
Obstruction of sunlight. 3The applicant also seeks orders for the reimbursement of the application filing fee. This is not something that Commissioners have the jurisdiction to award. If the applicant wishes to make a claim it must be done by filing a Notice of Motion to be heard by a Judge or Registrar of the Court. 4I also note that orders are sought with respect to the blocking of sunlight. Part 2 of the Trees Act does not apply and a separate application under Part 2A would be required; however, the applicant would need to satisfy the jurisdictional tests relevant to that Part of the Act. 5The respondents do not wish to pay for the removal of the tree. 6In applications under Part 2, the key jurisdictional test is found in s 10(2). This 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. 7As the applicant is 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 Court considers the risk posed by a tree in the foreseeable future - taking into account the particular circumstances of the trees and the site. 8The hearing commenced with an inspection of the tree from the respondents' property. It is a mature specimen growing very close to, but not touching, the dividing fence between the parties' properties. Neither party had engaged an arborist to be present. With the expertise I bring to the Court, I observed the tree to be healthy, with a normal amount of internal dead wood, and no obvious structural defects (although I note that the tree had some ivy growing on it). I observed no signs that would lead me to conclude that the tree is unstable.

The risk of injury 9A portion of the tree, including some large diameter branches, overhangs the applicant's property. Some heading back of small branches was observed: this had been undertaken by Mr Williams, the Secretary of the Owners' Corporation and the applicant's agent in these proceedings. 10The applicant produced no written arboricultural evidence from an independent expert, however Mr Williams said he had received verbal advice from a tree contractor that the tree was only about 30% of its mature size and should any large branch fail, it would cause damage and injury. While the applicant relies on this verbal advice, there was no opportunity to test it. 11Mr Williams is of the strongly held opinion that the tree is dangerous however, on the evidence before me this is not an opinion I share. Mr Williams expressed his dissatisfaction with my opinion and wanted this 'put on the record'. 12The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...". 13Again, on the evidence before me, with the expertise I bring to the Court and in the absence of any other independent arboricultural expert witnesses, I am not satisfied that the Pepper Tree is likely to cause injury to any person. Therefore this element of the application is dismissed.

Damage to property 14There are several elements of the applicant's property that are alleged to have been damaged by the tree. Each one is considered in turn.

The sewer 15The applicant contends that tree roots have blocked the sewer connection to one of the units on two occasions. Invoices from plumbers dated December 2008 and April 2012 indicate the presence of tree roots in the sewer. 16The Pepper Tree is approximately 10m from the location of the blockage. There is a mature Ironbark at the rear of another adjoining property that is closer to the sewer than the Pepper Tree. There is also another Eucalypt to the north of the Ironbark. 17I was shown some very fine, non-woody, roots that had been extracted from the sewer after it had been cleared by high pressure water jetting in April this year. Without analysis by an expert in root identification, it was impossible for me to tell from which plant they had come. Therefore the evidence is inconclusive. 18Mr Williams showed me a selection of secondary woody roots that he had extracted from the soil around a storm water silt trap in the vicinity of the blocked sewer. I asked Mr Williams if they had been extracted from the sewer pipe. He informed me that the pipe was under a cement slab and while the roots were growing under the slab he couldn't say if they were in the pipes. 19It is probable that some of these roots have come from the Pepper tree, however this is something to be expected. It would also be expected that roots from the Eucalypt/s are likely to be found in the soil profile in the same area. However, there was no evidence adduced that the roots from the Pepper tree had caused the damage to the sewer, or indeed are likely to cause future damage to the sewer. 20Therefore s 10(2) is not satisfied with respect to the sewer and the Court has no jurisdiction to make any orders for intervention with the tree on this basis.

The fence 21 It was agreed that the metal dividing fence is probably the original fence erected when the villas were built about 30 years ago. It is displaced in the vicinity of the tree's trunk but the fence is still fully functional. When he saw that the trunk was not pressing on the fence Mr Williams considered that the deflection might be because of the deterioration of the metal post. 22As no evidence linking the displacement of the fence to the tree was produced, s 10(2) is not met for this element of the application.

Roof and guttering 23Mr Williams stated that there was some corrosion on the inside of the guttering. In his opinion this has been accelerated by the build up of leaves from the Pepper Tree. I noted no external signs of corrosion despite the fact that the guttering is likely to be original. 24Mr Williams also contends that the fallout of leaves on the roof necessitates cleaning every three months which I take to mean is onerous. 25He also raises the issue that the fine leaves are blown under the roof tiles and into the ceiling and eaves of the closest unit and that the leaves will act as an accelerant in the event of a fire. 26While 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 tree on the basis of leaf litter. 27In 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: 171However, 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. 28Many 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. 29There 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. 30In regards to the possibility that the leaves may act as an accelerant in the event of a fire, the leaves themselves (and therefore the tree) would not cause the fire. This has been discussed in Freeman v Dillon [2012] NSWLEC 1057 at [84]-[86]. In any event, the Principle in Barker would apply.

The paving 31A portion of the backyard of the unit closest to the tree (#10) is paved. The paving is uneven and does not appear to have been professionally installed. However, there is a small section where the bricks have been significantly displaced. Removal of some of the bricks revealed a large woody root that I am satisfied belongs to the Pepper Tree. 32Therefore there is a clear nexus between the tree and the damage and therefore s 10(2) is satisfied in regards to the damaged paving. As a result, the Court's jurisdiction under s 9 of the Act to make any orders it sees fit, is engaged. 33In determining what, if any, orders should be made I need to consider the matters in s 12 of the Act. Of relevance is that:

The tree is on the respondents' property close to the damaged paving;
The impact of pruning some roots in order to rectify the damaged paving is unlikely to compromise the health or stability of the tree as long as the work is limited in extent and the roots are cut cleanly; and
The tree contributes to the amenity and natural landscape of the land on which it is growing. 34Balancing the amenity value of the tree against the relatively minor amount of damage, I consider removal of the tree to be a disproportionate response and not warranted in the circumstances. However, some orders are justified. 35The significantly uplifted area is limited to an area of about two square metres at the north-western corner of the covered paved area (bounded to the west by vertically placed sandstone rocks) at the rear of Unit 10. The orders will limit root removal to this area alone. The depth to which roots are to be removed is limited to 150mm and the roots are to be cut cleanly (a concrete cutter may be an appropriate tool for this purpose). The paving is to be relayed. Orders will be made requiring the applicant to provide access for this work to be carried out on reasonable notice. 36While Mr Hugo voiced his dissatisfaction with having to pay for this to be done, it is usual for the Court to require the tree owner to pay for any rectification work unless circumstances suggest apportionment of the costs. I don't consider any apportionment is necessary in this matter. 37Mr Hugo was also concerned that the applicant may continue to find roots and make another claim. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application. 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'.

Orders 38The Orders of the Court are: (1)The application to remove the tree is dismissed. (2)Within 90 days of the date of these orders, the respondents or their contractor, at the respondents' expense, are to remove and relay the two square metres of brick paving described in paragraph 35 of this judgment. Any roots within this area are to be cleanly cut to a maximum depth of 150mm. The area is to be levelled and the bricks replaced. (3)The applicant is to provide all reasonable access for order (2) to be carried out, including quoting for that purpose. The respondents are to provide the Secretary of SP 16349 at least two days notice.

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: 05 October 2012

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