Land and Environment Court New South Wales

• Medium Neutral Citation: Grozdanovska v Horky & anor [2014] NSWLEC 1023
• Hearing dates: 13 February 2014
• Decision date: 13 February 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Possible damage and injury
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kryiakides [2007] NSWLEC 292; Hinde v Anderson & anor [2009] NSWLEC 1148; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Ms M Grozdanovska (Applicant); Mr O and Ms K Horky (Respondents)
• Representation: Applicant: Ms S Miller (Agent); Respondents: Ms K Horky (Litigant in person)
• File Number(s): 20921 of 2001

Judgment

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

1 COMMISSIONER: This is an application made by the owner of a property in Wollongong against the owners of three trees growing on an adjoining property. The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

2 The applicant is concerned that overhanging branches may cause a range of damage to her property. The potential damage she fears includes dropping of leaves in the guttering thus causing a blockage with subsequent flooding; damage to the roof and guttering as a consequence of branches or fronds resting on it; and branch failure on to the electrical service line with the potential to bring the powerline to the ground or cause a fire.

3 The applicant is also concerned about potential injury from falling branches or fronds and is also concerned about the mess made by fallen leaves.

4 Additional issues of obstruction of sunlight and blocking views and sunlight are also raised. No application has been made pursuant to s 14 Part 2A of the Act which enables an owner of a property to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of sunlight to windows of the applicant's dwelling or views from the dwelling. Part 2A only applies to groups of two or more trees that are planted so as to form a hedge.

5 Orders are sought for the pruning of the trees to the boundary line, or if that is not possible, the removal of the trees. This work is to be at the respondents' expense.

6 The trees are growing in the respondents' rear garden along the common side boundary within a metre of the dividing fence. Tree 1 is a mature Blueberry Ash, Tree 2 is a mature Washingtonia/ Cotton Palm and Tree 3 is an early mature Eucalypt.

7 In applications under Part 2, the Court's powers under s 9 of the Act to make orders for any intervention with the trees requires satisfaction of a number of jurisdictional tests. The most important is satisfaction of s 10(2). This states that the Court must not make an order unless it is satisfied that the tree/s concerned has/have caused, is/are causing, or is/are likely in the near future to cause, damage to the applicant's property or is/are likely to cause injury to any person.

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 Photographs included in the application show palm fronds touching the corner of the guttering and the other trees being closer to either the roof or the electrical service line. The applicant's daughter, who acted as her agent, stated that so far, in the many years her parents have lived on their property, none of the trees had caused any property damage or had caused any injury to anyone.

10 The respondents have since pruned the trees and they are now well away from the roof and the electrical service line.

11 The applicant's main concern is what might happen in the future. 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. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s and the circumstances of the site apparent at the time of the hearing.

12 Neither party engaged an arborist to provide independent expert evidence. With the arboricultural expertise I bring to the Court I could see no defects or any other aspects in/ of any of the trees that would lead me to conclude that any part of any tree is likely to cause damage to the applicant's property in the next 12 months or is likely to cause injury to anyone in the foreseeable future. The trees were generally healthy.

13 While I am not satisfied that any damage has occurred to the guttering as a consequence of leaf litter or fronds, 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 or mess.

14 Many 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.

15 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.

16 Therefore while it is hypothetically possible that the trees might cause damage, the likelihood of this happening in the near future is remote and the applicant's fears are highly unlikely to be realised. However, if the circumstances change, as discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made.

17 Therefore after considering the evidence, inspecting the trees and the site, and hearing from the parties, I make the following Orders of the Court:

(1) The application is dismissed.

_____________________

Judy Fakes

Commissioner of the Court

Decision last updated: 13 February 2014