Land and Environment Court New South Wales

• Medium Neutral Citation: Taylor v Shehata and anor [2013] NSWLEC 1103
• Hearing dates: 17 June 2013
• Decision date: 17 June 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Potential damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Uniform Civil Procedure Rules 2005
• Cases Cited: Robson v Leischke [2008] NSWLEC 152; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29.; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mr G Taylor (Applicant); Mr and Mrs Shehata (Respondents)
• Representation: Applicant: Mr A Goddard (Solicitor); Respondents: Mr K Webber (Solicitor); Applicant: Quinn Lawyers Pty Limited; Respondents: Wiltshire Webb Staunton Beatty Lawyers
• File Number(s): 20126 of 2013

Judgment

1 COMMISSIONER: The applicant in these proceedings is concerned that three trees growing on adjoining land may cause damage to his property in Cheltenham. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of one tree and the pruning to 3 m of the other trees.

2 The three trees are located along the common side boundary fence between the parties' properties. The trees are within about 500 mm of the dividing fence and overhang the applicant's property to varying degrees.

3 The respondents do not wish to prune or remove the trees as they value them for the screening and privacy they afford their property and for their value in providing habitat and shelter for birds.

4 As shown on the diagram accompanying the application, Trees 1 and 3 (T1) are Cupressus sp or Cypress (identified in an arborist's report as C. sempervirens) and T2 is a Syzygium australe or Brush Cherry. According to the second respondent, the Cypress trees were planted in the late 1980s and the Brush Cherry was present when the respondents purchased their property in 1983.

5 The applicant contends that the roots of T1 may cause damage to his swimming pool, located about 3m from the tree. The age of the pool is unknown as it was there when the applicant purchased his property in 1979.

6 In regards to T2 and T3, which are effectively intertwined, the concern is that leaves and other detritus from the trees will damage the guttering of the applicant's dwelling.

7 In applications made under Part 2 of the Act, 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. In this matter, injury is not pressed.

8 The 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...".

9 As 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 this matter.

Potential damage to the pool

10 I estimate T1 to be approximately 6m tall (somewhat smaller than estimated by the respondents' arborist). It is a healthy specimen with a slight lean towards the respondents' property.

11 While the applicant sought the opinion of an arborist, Mr Adam Bortol, in regards to T1, Mr Bortol's statement of evidence does not in any way meet the requirements for expert reports as set down in Schedule 7, Expert Witness Code of Conduct, in the Uniform Civil Procedure Rules 2005. Although the statement is of very limited value, it was allowed into evidence as the respondents' arborist referred to it, and it is relied on, in part, by the applicant.

12 Mr Bortol's unsubstantiated opinion is that "The Cyprus [sic] pine is on a lean at approximately 65 therefore the roots will enlarge closer to the building and cause structural damage to the foundation. The full removal of the Cyprus pine is recommended.

13 Mr Andrew Scales, the respondents' arborist was on site to give oral evidence. He also prepared a report that complies with the Expert Witness Code of Conduct. Mr Scales explained the likely spread and nature of the roots of T1. In his view, the roots of this tree are unlikely to cause any damage to the applicant's pool in the next 12 months. Mr Scales considered that even if the tree fell over, as put to him by Mr Goddard the applicant's solicitor, it would be unlikely that the roots would cause damage to the pool.

Findings - Tree 1

14 The applicant stated that Tree 1 has not yet caused any damage to the pool but he is concerned that it may do so in the future and therefore would like it removed.

15 With the expertise I bring to the Court, I have no reason to disagree with Mr Scales' opinion that the roots from T1 are unlikely, in the near future, to cause damage to the applicant's property, in particular the pool. At the on-site hearing I saw no damage to any part of the pool, including the coping and the adjoining concrete pathway or anything else that would lead me to conclude that such root damage is likely. While there is a 'theoretical possibility' of future damage, no evidence was adduced to indicate that the threat was imminent.

16 In regards to Mr Bortol's statement, it is unclear as to which tree he is referring, as T1 is not close to any building.

17 As s 10(2) is not satisfied with respect to T1, the application for its removal is dismissed.

Potential damage to the guttering

18 T2 and T3 overhang the applicant's roof by up to about 1.5 m. In the past, the applicant has pruned the trees away from the roof but considers that the trees are now too tall for him to do this safely. While the applicant has replaced the guttering and has installed leaf guard, he is concerned that debris from the trees will accumulate and cause rusting of the guttering. In order to prevent this he seeks orders for the pruning of the trees to 3 m.

19 The respondents do not wish to prune the trees as they screen their dwelling from the applicant's upper storey windows.

20 In Mr Scales' opinion, pruning the trees to the extent suggested by the applicant would not only not comply with the Australian Standard for tree pruning, it would probably kill the conifer and lead to the suckering of the Brush Cherry. In his opinion, some selective pruning of the overhanging portions may be appropriate however he stated that leaves and other debris would still blow onto his roof from other parts of the trees.

21 During the hearing, it was also indicated that a small low branch from T3 is very close to the guttering and could, if allowed to grow, cause physical damage to the guttering.

Findings T2 and T3

22 I estimate T2 to be about 8 m tall and T3 10 m tall. I agree with Mr Scales that pruning the trees to the height requested by the applicant would have unacceptable consequences for the health and or structure of the trees and would remove their value as a screen.

23 While 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 trees on the basis of leaf litter.

24 In 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:

171 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. 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.

25 Many applications are made on the basis of annoyance or inconvenience 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.

26 There 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. While some judicious pruning may be appropriate, it is not something that the Court can order as the Court's power to do so has not been enlivened.

27 In regards to the small branchlet growing close to the gutter, the tree is growing slowly and even if the tip of the branch touches the guttering in the next 12 months, given its small size, it is highly unlikely to cause any damage. Therefore I find that s 10(2) is not satisfied in this regard.

Conclusions and orders

28 On the basis of the foregoing, the Orders of the Court are:

(1) The application is dismissed.

______________________

J Fakes

Commissioner of the Court

Decision last updated: 21 June 2013