Land and Environment Court New South Wales

• Medium Neutral Citation: Azzopardi v NSW Land and Housing Corporation [2011] NSWLEC 1234
• Hearing dates: 29 July 2011
• Decision date: 29 July 2011
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS]; damage to property; risk of injury; unsatisfactory report by expert
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakidis [2007] NSWLEC 292; Robson v Leischke [2008] NSWLEC 152; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mr J Azzopardi (Applicant); NSW Land and Housing Corporation (Respondent)
• Representation: J Azzopardi (Applicant in Person); Mrs J Isgro (Solicitor for the Respondent)
• File Number(s): 20317 of 2011

Judgment

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

1 This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr J Azzopardi, the owner of a property in Popondetta Road, Whalan, against the owner of a tree growing on an adjoining property managed by the NSW Land and Housing Corporation.

2 Mr J Azzopardi's son assisted the applicant at the hearing.

3 The respondent was represented by Mrs J Isgro, solicitor.

4 The applicant seeks orders for the removal of a gum tree growing in the rear garden of the respondent's property. He also seeks compensation in the amount of $4,284 for the repair of his roof gutter and external and internal tiling.

5 The applicant says the risk of the tree falling onto his property is extremely high and that he is unable to sleep at night especially during windy weather.

6 The applicant contends that roots from the respondent's tree have cracked and lifted tiling on the northeast corner of his patio.

7 The applicant also contends that the tiles surrounding the drain waste in his bathroom are cracked and partially raised as a result of the respondent's tree roots.

8 Finally, the applicant contends that leaves and debris from the respondent's tree have filled, blocked and damaged the veranda gutter on the eastern side of his dwelling to the point that the guttering needs to be replaced. He contends similar damage has occurred to the gutter on the western side of his dwelling.

The statutory framework

9 It was accepted by the parties that before any order can be made under the Act, the Court must be satisfied as to the existence of a causal connection between a tree that is the subject of an application and the damage or injury claimed by an applicant.

10 Under s 10(2)(a) of the Act, 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.

11 Where it has been determined that the Court does have jurisdiction, matters under s 12 are to be considered.

The site inspection and hearing

12 The respondent's tree is a semi-mature Spotted Gum ( Corymbia maculata) situated in the rear garden about 2 m from the common boundary between the properties. It is growing in a level lawn area adjacent to a small garden shed. I inspected the tree from the two properties. It is about 18 m in height with a trunk diameter of about 350 mm. The tree appeared healthy and I saw no evidence of instability or structural defects. The trunk bifurcates at about 8 m, forming two stems of similar proportions. The stem union has the form of a tension fork and I saw nothing to indicate weakness in that union. The secondary branch attachments appeared sound.

13 The applicant's dwelling is a 'granny flat' situated at the rear of, and separate to the principal dwelling on the land. According to the applicant, the flat is about 35 years old. It is situated about 1.5 m from the boundary fence.

14 I inspected tiling at the northeastern corner of the veranda, where it was evident that a section of about 1 sq m of tiles had sunk by about 10 mm. The applicant says that the tiles had previously lifted but were now sunken due to temporary excavation to investigate and re-lay them. I estimate this section of tiling is more than 8 m from the respondent's tree.

15 The applicant says the tiling is at least 30 years old, but he first noticed tiles lifting about 2 years ago. He subsequently lifted and re-laid the damaged section. He contends that roots from the respondent's tree caused this damage, although he did not find any roots during the tile re-laying. He says he assumed that roots were the cause because it was about that time that he observed the respondent's tree had grown high enough to be seen above the roof of the dwelling. He says he had a tiling contractor inspect the damage and the contractor told him that roots were most probably the cause of the damage.

16 The applicant says he decided not to repair the tiles as he relied on the contractor's advice and that there was no point in doing so as long as the tree remained.

17 In the applicant's bathroom I observed a very slight undulation in the tiling surrounding the waste inlet in the centre of the room, and also a few small hairline cracks in the tiles surrounding the inlet. The applicant contends that tree roots caused this undulation and cracking. He said he had not lifted tiles or the drain to verify this allegation. The tiling and drain were also more than 30 years old.

18 I observed the box guttering along the eastern side of the dwelling veranda and noted that it was in generally poor condition. The corrugated roof sheeting was in similar poor condition and lifted in places. This gutter is at least 8 m from the closest point of the respondent's tree. The applicant says he paid $300 to have the gutters cleaned out about a year ago and that no cleaning had occurred since.

19 I observed the guttering along the western side of the building closest to the respondent's tree and noted that it was in relatively good condition.

20 Mrs Isgro, for the respondent, submits that the applicant has had a grievance with the tree for a very long time and has made repeated requests to have the tree removed. She says the respondent has seen no reason to remove the tree, as, according to arborist reports that have been commissioned, the tree is healthy and does not present a threat or danger.

21 Mrs Isgro's affidavit tendered in evidence, detailed two tree preservation order applications submitted by the respondent in 2007 and 2009 to Blacktown Council, seeking consent to remove the tree with the reason for removal being that the owner next door feels the tree is in danger of falling on his roof.

22 In response to the 2007 application, Blacktown Council requested the submission of an arborist report pertaining to the condition of the tree.

23 A report was prepared by Nepean Tree Service Pty Ltd on 31 July 2007. This report took the form of an extremely sparse one-page report produced on a Housing NSW proforma sheet. It described the tree in the following terms: "Spotted gum in rear yard is overhanging sheds on the property and apart from a 'slight' structural defects on the trunk, the result of poor pruning techniques in the past, the tree is in good health". The recommendation was for "Remedial pruning". The report stated a risk factor of 3 as meaning 'no immediate danger'

24 From the documents tendered in evidence, it is not clear whether a Council officer inspected the tree, or whether Council relied upon the arborist's report in making its determination to refuse the 2007 application; however the Council refused the removal but did consent to pruning to a maximum of 40 per cent.

25 The second application to Council, submitted in 2009, was accompanied by an equally sparse one-page inspection report prepared by J & L Trees. This report stated: "Tree has had the lower branches professionally removed previously. Tree looks to be in very good health..." and concludes: "No action required".

26 Blacktown Council refused this application, stating that the tree was considered to be in a healthy condition.

27 The applicant disputes the quality of the tree reports that accompanied the respondent's tree preservation order applications, as he believes they were invalid, incomplete and did not represent the facts.

28 Whilst I am sympathetic to the applicant's assertion as to the incompleteness of the arborist reports, I am mindful that Blacktown Council accepted the reports and duly made its determination. Despite the significant shortcomings in those reports, I see reason to dispute their findings that the tree was healthy.

29 In June 2011, the respondent engaged Dr Graeme Wells, an ecologist, to inspect the tree and the property and to provide a report to assist the Court's determination.

30 It is evident from Dr Wells' five page curriculum vitae that he is very well qualified and experienced in ecology and conservation, having published 35 papers on the subject of crocodiles, mangrove systems and other wildlife in various tropical parts of the world. However, as Dr Wells claims no qualification or expertise in arboriculture and the assessment of risk in trees, I am not satisfied that he has the relevant qualifications or expertise to be assisting the Court in this matter.

31 Despite my foregoing reservations, I propose to refer in part to Dr Wells' report because the applicant, in his submission, says he thinks Dr Wells' report is "impressive'" and he accepts the report "in its entirety".

32 In Dr Wells' unsubstantiated opinion the tree "does not pose an immediate risk to any person" and is "not responsible for any of the alleged damage to the applicants property". In further unsubstantiated opinion he writes: "there is a future risk of root damage to the house foundation concrete slab..." and "I estimate that this future risk could manifest itself in ten years time".

33 Despite finding no basis in fact concerning the alleged property damage or of any ill health or instability in the tree, Dr Wells adopts a pre-emptive approach and recommends the tree be completely removed, including the stump.

34 It appears to me that the reason the applicant accepts Dr Wells' report "in its entirety" is because Dr Wells recommends the tree be removed.

The findings

35 Turning first to the matter of injury to any person. No satisfactory evidence has been presented to show that the respondent's tree is likely to cause injury to any person and therefore as s 10(2)(b) is not met, the Court does not have jurisdiction to make orders for intervention with the tree.

36 I turn now to the matter of causation concerning the alleged damages to the applicant's veranda tiles, bathroom tiles and roof guttering.

37 With respect to the veranda tiles and the bathroom tiles, I have no evidence before me to show the damage occasioned to these areas of tiling is a consequence of the respondent's tree. The absence of any excavation to reveal what may or may not be the cause of the damage compromises the Court's ability to make appropriate orders and therefore as none of the jurisdictional tests under s 10(2) are met, orders cannot be made concerning the alleged damage.

38 I turn now to the matter of the alleged damage to the applicant's roof guttering. As a matter of jurisdiction (as discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152 at paras 171 and 172), the mere deposition of material does not cause damage and enliven the Court's jurisdiction under the Trees Act. I did not observe any damage to the applicant's guttering that might be attributable to the respondent's tree. If I am wrong on that point, I consider the Tree Dispute Principle adopted by the Court with respect to trees in urban environments and published in Barker v Kyriakidis [2007] NSWLEC 292 to be appropriate in this matter.

39 In this principle, it is considered 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." It further states that: "The dropping of leaves, flowers, fruits, seeds or small elements of dead wood, by urban trees, will not ordinarily provide the basis for ordering removal of or intervention with a tree".

40 Finally, on the basis of the evidence before me, I am unable to be satisfied that the respondent's tree is a cause of any of the alleged damage. There is no damage currently being caused by the tree and, in my view, there is no likelihood of the tree causing damage in the near future. The near future being the next 12 months, that being a test that has been adopted in the past by the Court, consistent with the guidance given in Yang v Scerri [2007] NSWLEC 592. As a consequence, there is no jurisdictional basis under s 10(2) of the Trees Act to contemplate interference with, or removal of the respondent's tree.

41 As a result of the foregoing, the application in its entirety is dismissed.

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 15 August 2011