Land and Environment Court New South Wales

• Medium Neutral Citation: Knight v McSweeney [2013] NSWLEC 1035
• Hearing dates: 13 February 2013
• Decision date: 13 February 2013
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed.

• Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292; Dooley & anor v Nevell [2007] NSWLEC 715; Hendry & anor v Olsson & anor [2010] NSWLEC 1302
• Category: Principal judgment
• Parties: Mark Knight (Applicant); Paula McSweeney (First respondent); David McSweeney (Second respondent)
• Representation: Mark Knight (Applicant) (Litigant in person); Brian Phillips MCW Lawyers (Respondent)
• File Number(s): 21090 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Introduction

1 Mr Knight has been the owner of a Darlinghurst property for about 13 years. The Knights renovated their terrace house approximately 11 years ago adding a two-level addition at the rear of the dwelling and landscaping their courtyard. At that time a large tree already stood on the neighbouring property to their south-west. That property, owned by the McSweeneys since 1985, was rented out until recently.

2 Mr Knight is concerned that the tree has damaged his property and may cause injury. Under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") he has applied to the Land and Environment Court for the removal of the tree, compensation of $43,000 for damage to his property and costs of $770 for an arborist report. Commissioners don't have the power to award costs so the application regarding the final order sought would require a Notice of Motion to be heard by a Judge, should Mr Knight wish to pursue this.

3 The McSweeneys value their tree and wish to retain it. They say there is no evidence that their tree has caused damage to the Knight's property.

Framework of the Act

4 The Court must consider the matter within the following framework. Firstly, there are jurisdictional tests. At s 7, the tree must be on neighbouring land - this is not in dispute. The Court must be satisfied, at s 10(2), that the tree: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property; or (b) that the tree is likely to cause injury. If these jurisdictional tests are met, the Court must consider a range of matters listed under s 12. Finally, orders can be made at s 9 as the Court sees fit.

What are the issues?

5 Several main issues need to be resolved. Firstly, has the applicant shown sufficient evidence to demonstrate that the tree has caused damage? And if it is shown that the tree has caused damage, what is its severity? Secondly, is the tree likely to cause injury? Also of consideration in this matter is the fact that the tree was there first. This is not a jurisdictional test but must be considered under s 12 of the Act.

The situation

6 The on-site hearing allowed observations of both properties, of the tree from within the properties and observations of the alleged damage. The tree is a Common Hackberry (Celtis occidentalis), approximately 20 metres tall, growing in the rear courtyard of the respondents' property. It appears to be around 50 years old or more and in good health. It has two main stems. The tree has a broad crown that spreads above much of the respondents' courtyard and extends above the applicant's courtyard.

7 The applicant pointed out his main concerns. Debris, including leaves and berries, falls onto his property, staining the pavers and blocking gutters and drains. The applicant pointed out some discoloration of, and small gaps between, some floorboards near the back door of his dwelling. He took us to the upstairs bathroom and pointed out water-damaged plaster above the shower. All of these matters relate to damage that the applicant says has been initiated by debris falling from the tree.

8 In his courtyard the applicant pointed out a small section of paving that he says has been lifted by roots of the neighbouring tree.

The applicant's submissions

9 The applicant claims pavers are discoloured by the droppings of birds and bats attracted to the tree, as well as by leaves and fruit of the tree. Fallen debris blocks gutters and drains. He says it takes 2-3 hours every weekend to clean debris off the paving. The applicant says the tree blocks sunlight, causing mould to grow on the pavers. He relies on damage costs estimated in a letter from Birgitte Randall, who he says is a builder. He claims $13,000 for one year's courtyard cleaning and $2,500 for cleaning out gutters.

10 The applicant says flooding, caused by drains being blocked by debris, damaged the floorboards at the rear of the house. I noted some slight discoloration and small gaps between several boards. The damage appears minor. He says flooding also damaged the doors at the rear of the house. The applicant claims $7,000 for new floors and $9,000 for new doors.

11 The applicant says the bathroom ceiling upstairs was damaged when gutters became blocked by debris from the tree. He claims $1,500 for ceiling repairs, repairs to the light and painting.

12 The applicant says that roots of the tree have lifted paving and that further damage is likely. He claims $10,000 for the cost of new paving.

13 The above items comprise the applicant's total compensation claim of $43,000.

14 The applicant is concerned that injury may result from falling limbs, saying that several limbs have fallen in the time he has lived here.

The respondents' submissions

15 The respondents say they value the tree for its amenity, shading and habitat. The tree is to the west of their dwelling and provides shelter from the hot afternoon sun in summer. They say cleaning up fallen debris is not onerous. They say the applicant's lifted paving could be caused by the tree to the other side of the applicant.

16 The respondents submit that, as the tree was there when the applicant undertook house renovations and landscaping, the applicant should have taken this into consideration when designing drains, gutters and paving. They argue that the applicant extended the dwelling beneath the tree's canopy and that levels were changed in the garden, contributing to drainage issues.

17 The respondents say they were told only once that a limb fell from their tree into the applicant's property. The limb did not cause injury and was returned to them over the fence.

Findings

Damage caused by debris from the tree

18 As explained in Dooley & anor v Nevell [2007] NSWLEC 715 damage caused by animals is not damage caused by trees, even if a tree provides habitat for animals that cause damage to property. Discoloration of paving caused by animal droppings therefore does not fall within the Act's jurisdiction.

19 Although leaves may have discoloured the light-coloured pavers, and the applicant argues that this is 'damage', this damage is so minor as to not warrant the Court's interference.

20 Regarding this issue, I refer to the principle set out by the Commissioners in Barker v Kyriakides [2007] NSWLEC 292 at (20):

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.

21 The applicant is of the view that the level of maintenance required is extreme. However there is nothing in this situation that is more extreme than some other situations that the Court has dealt with and I see no reason why this principle should not apply here. The expectation is that the applicant can maintain his property. I also return to the fact that the tree was here first and that the applicant would have been aware at the time of purchase, as well as during renovations, that leaves would fall onto pavers.

22 The principle regarding maintenance was extended in Hendry & anor v Olsson & anor [2010] NSWLEC 1302 to include the cleaning of mould and slime.

23 Considering the above, the application regarding compensation for cleaning pavers and gutters is dismissed.

24 Insufficient evidence was presented to satisfy the Court that damage to the dwelling (doors, flooring and bathroom ceiling) resulted from tree debris blocking gutters and drains. It is certainly possible that other factors contributed to flooding downstairs, such as insufficient size of drains, or that the bathroom ceiling has been affected by steam from the shower. However, even if these areas of damage did directly result from gutters and drains being blocked by debris from the tree, the principle stated previously (from Barker) applies to the cleaning out of gutters and drains. The onus is on the applicant to maintain these items in a functional state. As a consequence, the compensation claim for repairs to the dwelling is dismissed.

Damage caused by tree roots

25 Only one small section of paving has been lifted. The extent of lifting is so minor as to not cause a trip hazard or otherwise interfere with the functioning of the paving. The remainder of the paving across the courtyard is unaffected. The applicant did not show that the lifting was a result of roots from the Hackberry. In my view the damage is presently so minor that, even if the applicant could show it was caused by the Hackberry's roots, it is not severe enough to warrant making any orders.

Risk of injury

26 The tree has been pruned in recent years. An arborist report by Mr William Home, submitted by the applicant, does not state that there is a risk of injury in its conclusions or summary. In its summary he says that it "could form a hazard at a later date". Bringing my own expertise to the matter I do not accept that there is a significant risk of injury from falling limbs.

Conclusions

27 Regarding much of the damage for which compensation is sought, the applicant has not demonstrated to a satisfactory level that such damage has been caused by the neighbouring tree. However, even were he able to do so, all the damage that has allegedly resulted from fallen debris, or the effects of fallen debris, would have apparently been avoided through maintenance. The principle set out in Barker is relevant here: "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."

28 The applicants were fully aware of the tree's presence when they renovated and landscaped. The implications of living close to a tree would have been foreseeable.

29 The applicant has not demonstrated to the Court's satisfaction that it is the respondent's tree that has lifted his paving. However, even if he was able to do so, the damage is so minor as to not warrant orders from the Court.

30 For these reasons, no compensation shall be ordered.

31 I do not accept that the tree is likely to cause injury. The tree's benefits to its owners and the neighbourhood are considerable.

Orders

32 As a result of the foregoing, the orders of the Court are:

(1) The application is dismissed.

__________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 01 March 2013