Tsinaslanidis v McKeown

Onsite hearing 4The onsite hearing began on the applicants' property. The applicants raised the issue of overhanging limbs and the maintenance required to clean up debris. 5The applicants pointed out the damaged section of brickwork along the bottom of the fence on the common boundary with the respondent's property. A section of this brickwork has been lifted immediately to the north of Trees 3 and 5, which are close to the boundary. A small bracket supporting the alloy lattice fencing on top of the brickwork is bent and cracked. The top of the lattice fencing has a raised bow above the lifted brickwork. 6Tree 3 is a New Zealand Christmas Tree ( Metrosideros excelsa ); Tree 5 is a Black Tea Tree ( Melaleuca bracteata ). 7The respondent gave evidence that the applicants' garden bed alongside the fence had shrubs or small trees growing in it until early last year. 8Mr Castor, the arborist providing expert evidence for the respondent, stated that it was likely that Trees 3 and 5 had caused the damage although shrubs in the applicants' garden may have contributed. 9The respondent pointed to areas of damage to the brickwork at other points of the fence, well away from any trees. 10Damage to the colourbond fence to the south of the applicants' dwelling was viewed, that damage being a bow along the top of the fence. On subsequent viewing of the three fig trees in pots (Tree 8) from the respondent's property, the applicants conceded there was no evidence that these trees have caused damage. Both parties agreed that a banana tree or similar had grown at this point on the respondent's property, but no evidence was provided showing that it had caused damage. This part of the application was not pressed. 11Tree 13/14, the large Lemon-scented Gum toward the rear of the properties, was viewed. The applicants showed examples of dead limbs up to 50mm diameter that had fallen from the tree into their garden. Dead branches could be seen in the tree crown above the applicants' land. Both parties agreed that there is a risk of injury from falling limbs in the near future and that a suitable pruning regime would satisfactorily resolve this. 12The applicants stated that Tree 15 had caused damage to a shed that has now been replaced. No evidence of this damage was provided and no claim for compensation was made. The existing shed has not been damaged and the applicants did not claim any risk of damage or injury from this tree in the near future. The applicants are concerned about the maintenance required to clean up debris falling from this tree.

Submissions 13The applicants argue that the likelihood of Trees 3 and 5 being the cause of damage is sufficient to enliven the Court's jurisdiction. 14The applicants submit that repair works to the fence are required. Although the applicants initially sought orders for root pruning, the applicants submit that the kind of repair to the brickwork described by Mr Castor at the hearing, such repairs requiring no root severance, would be a satisfactory outcome. 15The respondent submits that there is insufficient evidence that Trees 3 and 5 have caused the damage - that although it may be likely, it has not been shown to be true. The respondent argues that the report of Mr Gatenby, of Apex Tree and Garden Experts, does not consider other vegetation, and that no root mapping has been done to show that roots from these two trees have caused the damage. The respondent states that the Court cannot be satisfied that Trees 3 and 5 caused the damage. 16The respondent further submits that, even if damage is caused by these two trees and the Court's jurisdiction is enlivened, the damage is so minor as to not concern the Court and orders would not be required. The respondent referred me to Wisdom v Payn [2011] NSWLEC 1012 at [32] where Moore SC and Hewett AC, citing the maxim de minimus non curat lex ( the law is not concerned with trifles), did not make any orders for a fence that had been displaced by a palm tree . 17Regarding overhanging branches and maintenance, the applicant argues that, although the principle in Barker v Kyriakides [2007] NSWLEC 292 states that some maintenance is to be expected, the maintenance required here is onerous and beyond what is reasonable.

Jurisdcition 18Although it is apparent that the applicants like to keep a tidy garden, the maintenance required to deal with debris such as leaves, twigs, buds and fruit falling from the respondent's trees does not appear too onerous. The Court has certainly applied this principle in cases involving far more debris. Further, even if the task is beyond what's reasonable, there is no evidence of damage or risk of injury from leaves, twigs and small debris. Therefore the Court's jurisdiction is not enlivened in this regard and this element of the application is dismissed. 19I am satisfied that the Court's jurisdiction is enlivened in regard to Tree 3 and Tree 5, in that it is more than a mere likelihood that they have caused damage to the fence. While the arborists state in their reports that it is likely that these trees have caused damage, I am convinced, on the balance of probabilities, and observing the size of the trees, the size of their root buttresses, and their proximity to the lifted fence, that they have caused the damage. 20There was no evidence provided to me that the respondent's trees, either Tree 8 or a pre-existing banana tree, have caused damage to the section of the colourbond fence to the south of the applicants' dwelling. This element of the application is dismissed. 21I am satisfied that there is a risk of injury due to falling limbs from the Lemon-scented Gum (Tree 13/14). Therefore the Act is enlivened in regard to this tree. 22Before making any orders I must consider other matters in s 12 of the Act. 23All the trees in the application contribute to the landscape value of both properties and provide shading, cooling and other amenity. 24The trees would not tolerate pruning of roots at the boundary. 25Considering the extent of damage to the fence at the front of the property, I find that repair works are appropriate. The condition of this section of the fence is significantly worse than other sections, even those that show some cracking. 26The parties have agreed on the type and extent of repair works to the fence. 27The parties have also agreed on the pruning regime required for Tree 13/14, following advice from Mr Castor. Such pruning would minimise the risk without damaging the tree or destroying its natural form.

Orders 28Therefore the orders of the court are: (1)The respondent is to engage and pay for a fencing contractor to remove the 1.5m section of lifted brickwork, from the post 1m east of Tree 5 to a point 1.5m to the west. A new brick course is to be constructed on a lintel that spans over the roots, with at least 25mm clearance between the lintel and any woody roots, using existing bricks where possible, or matching with new bricks if required. The lattice fence is to be attached to the brickwork by repair to the existing bracket or with a new bracket to replace the broken one, as the contractor sees fit. (2)Tree roots >20mm diameter are not be cut or damaged during the works in (1). (3)The works in (1) are to be done within 3 months of the date of these orders. (4)The applicant is to allow access for the works in (1) at reasonable times given at least 3 days' notice by the respondent. (5)The respondent is to engage and pay for an AQF level 3 arborist to prune the Lemon-scented Gum (Tree 13/14) to remove all deadwood >10mm diameter over the applicants' property and to reduce long limbs over the applicants' property, reducing them to suitable forks, taking no more than 30% of each limb and no more than 20% of the entire crown area. This work is to be completed within 2 months of the date of these orders and must be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry . (6)The applicant is to allow access for the works in (5) at reasonable times given at least 3 days' notice by the respondent. (7)Every 3 years, within 1 month either side of the anniversary of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to prune the Lemon-scented Gum (Tree 13/14) to remove all deadwood >10mm diameter over the applicants' property and to reduce long limbs over the applicants' property, reducing them to suitable forks, taking no more than 10% of the entire crown area. This work must be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry . (8)The applicant is to allow access for the works in (7) at reasonable times given at least 3 days' notice by the respondent. D Galwey Acting 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: 22 February 2012