Land and Environment Court New South Wales

• Medium Neutral Citation: Grossman v Amaro [2012] NSWLEC 1154
• Hearing dates: 5 June 2012
• Decision date: 05 June 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1)The application is dismissed in its entirety.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of injury; damage to property and risk of injury so insignificant as to not warrant orders of the Court; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292; Hinde v Anderson & anor [2009] NSWLEC
• Category: Principal judgment
• Parties: Barry Grossman and Raquel Grossman (Applicants); Tony Amaro (Respondent)
• Representation: Barry Grossman -Litigant in person (Applicants); Tony Amaro -Litigant in person (Respondent)
• File Number(s): 20242 of 2012

Judgment

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

1 ACTING COMMISSIONER: The Grossmans have owned their North Bondi property for about 15 years. Soon after they moved into it about nine years ago, the fence along the common boundary with the property to the east was replaced with a timber paling fence. In 2006 they had a swimming pool constructed in their rear garden. They now contend that neighbouring palm trees are damaging the fence, that debris from those trees damages the pool cleaning system and gives rise to a risk of injury, and that overhanging shrubs require excessive pruning.

2 They seek orders, under the Trees (Disputes Between Neighbours) Act 2006 (the Act), for the removal or regular pruning of the palm trees, pruning of the overhanging shrubs, and repair or replacement of the fence and concrete blocks along its base. In their application they also claim the costs of the Court's application fee. As a Commissioner of the Court I do not have the power to award costs, which can only be awarded by a Judge of the Court, thus requiring a Notice of Motion if the applicants wish to pursue that.

3 Mr Amaro, their neighbour and the respondent in this matter, owns the trees. He disputes that his trees have caused any damage and that they pose a risk of injury. He planted the palms soon after purchasing his property about 32 years ago.

4 If the Court is satisfied that the trees have caused damage or pose a risk of injury, orders can be made regarding those trees. I am not obliged to make the orders sought by the applicants, but after considering the matters in s 12 of the Act can make orders such as those in s 9 as I think fit to remedy, restrain or prevent damage to property or to prevent injury.

Evidence

5 At the onsite hearing the trees and damage were viewed from within both properties. Mr Grossman pointed out the displacement of the wooden paling fence and of the concrete blocks at its base. The displacement of the fence is minor and does not obstruct passage of the narrow area between the pool and the fence. This area is not a thoroughfare that leads anywhere and does not appear to be an area that would be used for any purpose. It is landscaped with pebbles. The displacement of several concrete blocks along its base is also minor, allowing a small amount of sand to pass through small cracks onto the applicants' pebbles but causing no obstruction or risk. Neither the fence nor the concrete blocks appear to be structurally compromised in any way such that they are likely to fall onto the applicants' land.

6 The four Cocos Palms (Syagrus romanzoffiana) are planted in a line on Mr Amaro's land near the common boundary. At ground level the bases of the trees are perhaps 20 cm from the fence. The trees appear to be healthy and structurally sound. Mr Amaro has recently pruned them to remove fronds overhanging the Grossman's property. At and above ground level no part of the trees is pushing against the fence or the concrete blocks, however it is possible that the rootballs below ground level, or soil displaced by those rootballs, have pushed against concrete blocks below ground level.

7 Mr Grossman also submitted photographic evidence showing a palm frond that had fallen into their property and submits that such fronds could cause injury.

Does the Court have jurisdiction?

8 Taking the Grossmans' claims at their highest, displacement of the fence and concrete blocks along the boundary could be regarded as damage, and this may be caused by growth of the palm trees' roots, in which case one of the tests at s 10(2)(a) would be satisfied. The test at s 10(2)(b) requires that the tree concerned is likely to cause injury to any person. Although a palm frond could fall and hit a person, causing some kind of injury, however slight, in my mind the frequency of fronds falling combined with the frequency of people being present beneath the palms results in a risk so low that I could not regard it likely to occur. However, as at least one of the tests at s 10(2) is satisfied the Court has jurisdiction over the palms.

9 The Grossmans also seek orders for the regular pruning of shrubs that grow beneath the palms and overhang their property. They do not claim that the shrubs have caused damage or that they are likely to cause injury, only that the amount of pruning required to clear the shrubs over their property is excessive. Because these shrubs do not meet any of the tests at s 10(2) of the Act, the Court has no jurisdiction over them and this element of the application is dismissed.

What orders would be appropriate to respond to the issues?

Damage to the fence and concrete blocks

10 As described above in (5), the displacement of the fence and the concrete blocks at its base is so minor as to not cause any obstruction. It does not restrict use of the applicants' land, nor pose a risk of falling, nor is it an eyesore. In short, I cannot see an issue with the fence of any significance that would require the Court to make orders as sought for its repair or replacement, nor for the removal of the palms.

Falling fronds, fruit and other debris

11 The risk of injury from falling fronds seems so low, as discussed at (8), as to not require orders for removal or pruning of the palms.

12 Mr Grossman also submits that fruit and other debris falling from the palms can cause damage to their pool cleaning equipment and, when it lies on the tiles around the pool, can make the surface dangerously slippery. On this matter I turn to the principle stated 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.

13 There is nothing in the matter before me that would challenge that principle or suggest that the trees cause an unreasonable level of maintenance.

Conclusions

14 Having viewed the evidence and heard the applicants' submissions I cannot see any reason for the Court to make orders regarding the palms or shrubs on their neighbour's land or the fence along the common boundary. Should the situation change in future, giving the applicants reason to seek orders from the Court, they can make a new application as discussed in Hinde v Anderson and anor [2009] NSWLEC 1148.

Orders

15 As a consequence, the orders of the Court are:

(1) The application is dismissed in its entirety.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 08 June 2012