Turner v O'Donnell

CASES CITED: Yang v Scerri [2007] NSWLEC 592

APPLICANT Ken Turner (litigant in person) LEGAL REPRESENTATIVES:

RESPONDENT John O'Donnell (litigant in person)

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Ken Turner of 35 Gellatly Avenue Figtree against the owner of a eucalypt growing at 159 Jacaranda Avenue Figtree. The owner of that property is Mr John O'Donnell.

2 The applicant is seeking the removal of the tree as he contends that the tree has caused, and will continue to cause, damage to his property. He also claims that he was injured by the tree and that further injury may occur. Mr Turner is also seeking compensation for items he states have been damaged by the tree, specifically: $875 for a spa pool cover, $79.95 for a shirt and $4,598 for the replacement of the roof of the spa. He is also seeking compensation for the cost of the application fee.

3 Dealing with the last item, Commissioners do not have the jurisdiction to award costs in these matters.

4 The tree is most likely a Eucalyptus punctata (Grey Gum). It was inspected from both properties and binoculars were used to view the upper sections of the canopy. It is a healthy specimen with less than 5% dead wood. It is growing on the north-eastern boundary of the respondent's property in a retained garden bed. It is not clear as to whether the tree was planted or is a remnant of the original vegetation. The respondent's property is up slope of the applicant and part of the tree's canopy overhangs the applicant's garden and outdoor spa. 5 Mr O'Donnell has resided at 159 Jacaranda Avenue for 14 years and the tree was well established when he moved in. The applicant purchased his property seven years ago and was aware of the presence of the tree.

6 The respondent sought permission from Wollongong Council to remove the tree as part of a development application for a garage. The development application was refused for several reasons as was the removal of the tree.

7 The applicant is seeking the removal of the tree partly because of damage to property. In January 2008 it is alleged that a branch fell from the tree and pierced a hole in a shirt that was hanging on the clothesline. However, the applicant's main concern relates to damage to elements of the spa and the surrounding structure.

8 The previous owner of 35 Gellatly Avenue built the spa in 1991. Approximately three and a half years ago, Mr Turner replaced the spa and the cover. Shortly after doing so, he alleges that a branch from the tree fell through an open section of the roof and punctured a hole in the cover. This hole is about 1 cm in diameter and is the only obvious hole in the spa cover that is about 4 square metres in area. Mr Turner did not bring this incident to the attention of Mr O'Donnell.

9 As a result of the damage to the cover, Mr Turner replaced the polycarbonate roof over the spa. The original roof was at least 15 years old with some sections covered by slates rather than solid roofing. It was through a gap in the slats that the branch fell.

10 Mr Turner claims that sap from the tree has built up to a point where it can't be cleaned without causing damage to the surface. 11 The applicant showed us several small dead branches in his garden. Most of these had a diameter of 5-10 mm. There was one dead branch on the roof of the spa that had a diameter of about 20 mm. It had not caused any obvious damage to the roof. Mr Turner also pointed out several small live branchlets of about 5 mm in diameter that had blown out of the tree in windy weather.

12 Mr Turner pointed out what he described as 'rot' in the tree. When viewed through the binoculars this was an old surface wound on a branch. There were no external signs of decay.

13 With respect to injury, Mr Turner claims that he was struck on the leg by a falling branch. His application included photographs of a wound/scratch about 20-40 mm long. This was not brought to the attention of the respondent when it happened. Mr Turner also claims to suffer from sinusitis and states in his application that "the tree gives off small fibre like pods twice a year which has a great impact on my health."

14 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders?

15 The Court must also consider a number of matters under section 12 of the Act. The relevant clauses in this case are: (a) The tree is wholly located on the respondent's property. (d) The tree, being a eucalypt, will make a contribution to the local ecosystem and to biodiversity. (e) The tree contributes to the scenic value of the land on which it is growing and contributes to the landscape character of the area. (f) The tree can be seen within the immediate area and therefore has value to public amenity. (h)(i) With respect to the applicant's shirt, there is another Eucalypt in the adjacent property in Gellatly Avenue that is closer to the applicant's clothesline than the Grey Gum. The Grey Gum does not directly overhang the clothesline. However, Mr Turner stated that he was certain the branch came form the respondent's tree. (h)(ii) The applicant has taken steps to prevent damage to the spa by enclosing the roof. The respondent has sought the removal of the tree but was refused by Council. 16 Where an application is made based on injury said to arise from a medical condition, The Court gives specific Supplementary Standard Directions requiring an applicant to provide properly qualified medical or scientific evidence of a link between the injury and the tree that is the subject of the application. These Supplementary Standard Directions are in the following terms: 1. Further to Direction (5) of the principal directions in this matter, the applicant is to provide, by the close of business on (date), any statement of medical or arboricultural evidence and any supporting medical or peer reviewed literature relied upon in support of a claim that a tree which is the subject of the application is a likely cause of injury to any person ; 2. Any expert evidence prepared after the date of these directions concerning matters contained in (1) above is to include an acknowledgment of and agreement to be bound by Division 2 of Pt 31 of the Uniform Civil procedure Rules and the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules. 17 In this matter, at the preliminary hearing, Senior Commissioner Moore issued the applicant with these supplementary directions as part of his application related to sinusitis as injury. The evidence tendered by Mr Turner in support of this claim is a statement from a pharmacist stating that Mr Turner purchases a drug for the treatment of allergies and a statement from a medical practitioner from Bayview Centre stating in its entirety " Ken Turner is known to suffer seasonal sinusitis occurring in the warmer months. He is adamant that this coincides with the flowering of an overhanging eucalyptus tree". These documents do not satisfy the requirements of the Supplementary Standard Directions and are thus given no weight in this matter.

18 Coming back to section 10(2), there is evidence that a branch from the respondent's tree probably punctured the spa cover. There is also undisputed evidence of injury to the applicant's leg. Therefore two of the elements of section 10(2) are satisfied and the jurisdiction is enlivened.

19 Section 9 of the Act enables the Court to make any orders that it thinks fit to deal with the issues arises from the application. The extent of the orders depends on the seriousness of the damage or injury.

20 With respect to the sap on the roof of the spa and the fallout of small branches onto the applicant's garden, consistent with the tree dispute principle set out by the Court in Barker v Kyriakides [2007] NSWLEC 292, I am satisfied that it is not appropriate to order the removal of, or significant interference with, the tree on the basis of its dropping of sap, leaves, twigs and the like on the applicants' property.

21 As discussed in the principle, for people who live in treed urban environments, there is some necessary degree of assumption of housekeeping required in order to appreciate and retain benefits of having such a treed urban environment. Further, in Robson v Leischke [2008] NSWLEC 152 at para 171, Preston CJ stated: 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. 22 As a consequence of the above, the claim for compensation of the sum of $4, 598, that being a quote for the replacement of the spa roof, is refused.

23 With respect to the compensation for damage, the applicant did not notify the respondent of the actual damage to the shirt or the spa cover and as such, denied the respondent the ability to take remedial or rectifying steps. As a result, the claim for compensation of $79.95 for the shirt and $875 for the spa cover is refused.

24 Based on the evidence and the application, it is clear that falling deadwood has caused, and may, in the near future, cause damage to property or injury to persons. Therefore the Orders of the Court with respect to this are: 1. The application to remove the tree is refused. 2. The respondent is to engage and pay for an AQF level 3 arborist to remove all dead wood down to 20 mm in diameter from the tree. The work must comply with AS4373 Pruning of Amenity Trees of 2007 and the WorkCover Code of Practice for the Amenity Tree Industry. The arborist must have all appropriate insurances. 3. The works are to be completed within 30 days of the date of these orders. 4. The applicant is to provide any necessary access for these works as long as 5 working days notice is provided. 5. The works in (2) and (4) are to be carried out every three (3) years within 30 days of the date of the anniversary of the first pruning. The respondent is to organise and pay for this.

      J Fakes
      Commissioner of the Court

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