Land and Environment Court New South Wales

• Medium Neutral Citation: Sanh v Truong [2012] NSWLEC 1274
• Hearing dates: 4 October 2012
• Decision date: 04 October 2012
• Jurisdiction: Class 2
• Before: Fakes C
• Decision: Application dismissed
• Catchwords: TREES [NEIGHBOURS] Damage to property; injury; falling leaves; spiders
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592; Robson v Leischke [2008] NSWLEC 152; Barker v Kyriakides [2007] NSWLEC 292; Hendry & anor v Olsson & anor [2010] NSWLEC 1302; Clune v Falconer [2008] NSWLEC 1458
• Category: Principal judgment
• Parties: Ms Van Sanh (Applicant); Mr Cuu Truong (Respondent)
• Representation: Applicant: Ms Sanh (litigant in person); Respondent: Mr A Truong (Agent)
• File Number(s): 20631 of 2012

Judgment

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

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

2 At the on-site hearing the applicant was assisted by a friend, Ms Tanya Nguyen, who translated the oral proceedings.

3 The applicant is asking the Court to order the respondent to take any steps, at his own cost, to prevent any branches of the trees from growing over or through the dividing fence onto the applicant's property. Similarly, orders are sought for the respondent to prevent any leaves and other debris from falling onto her property.

4 In addition, orders are sought to have the respondent pay for the cleaning of the gutters of her dwelling, clearing of a narrow gap ('ditch') between the fence and a concrete path, and for the spraying of any insects/ spiders that may be present as a result of the leaf litter.

5 The orders are sought in order to allow the proper functioning of the guttering and downpipe, and to prevent injury as a result of slipping on debris or from being bitten by insects.

6 I also note that the applicant has claimed the cost of the Court's filing fee for lodging the application. This is not something that Commissioners have the jurisdiction to award. A separate Notice of Motion must be made and then determined by a Judge or Registrar of the Court.

7 The trees are two Crepe Myrtles and one Magnolia; all trees are about 3-4m tall. The Crepe Myrtles are planted along the western side boundary of the respondent's front garden and the Magnolia is close to the south-eastern corner of the respondent's dwelling some two metres or more from the applicant's dwelling.

8 The applicant has pruned the majority of the branches on the eastern side of the Crepe Myrtles to be well clear of the dividing fence however a small portion of the upper canopy of these trees overhangs a small portion of the western side of the applicant's driveway, garage and a concrete path along the western side of the garage. No part of the Magnolia overhangs the applicant's property.

9 At the time of the hearing, the driveway, pathway and guttering appeared in good order. There were some petals from a May bush on the driveway; this shrub was projecting slightly through the metal dividing fence but is not a plant subject to the application. It appears that the respondent's tenants have undertaken some garden maintenance since the application was made. The applicant keeps her property well maintained.

10 In applications under Part 2 of the Act, the key jurisdictional test is 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.

11 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 the circumstances. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future - taking into account the particular circumstances of the tress and the site.

Findings on damage

12 The applicant's concerns go to the falling of leaves and other debris onto her property and the need to regularly remove that material. Photographs included with the application show accumulated material in both the guttering and in the narrow gap between the path and the fence. However, no damage arising from that accumulated debris was shown to me on site or was evident from the photographs. I was shown some mould/mildew on bricks at the base of the garage and close to the downpipe. This was said to have arisen as a result of water overflowing from the gutter. However, I note that this is the southern wall of the applicant's dwelling and was evident elsewhere.

13 Therefore, on the evidence before me I am not satisfied that the respondent's trees have caused or are causing, damage to the applicant's property. While leaves and flowers will continue to fall onto the applicant's property in the future, there is nothing to satisfy the Court to the extent that any damage will arise from that fallout in the next 12 months.

14 As section 10(2) is not satisfied in this regard, not orders can be made for any intervention with the trees on this basis.

15 However, If I am wrong in respect of leaf litter etc, 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:

171However, 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.

16 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.

17 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 applicant has convinced the Court of exceptional circumstances. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 the Principle was extended to include the cleaning of mould and slime (paras 11-14).

18 I am not satisfied on the evidence before me that there are any particular circumstances that would convince me to deviate from the application of this Principle.

19 Therefore, the application with respect to damage is dismissed.

Findings on injury

20 While the applicant is concerned about the possibility of someone slipping on leaves or flowers, the Principle in Barker applies.

21 In regards to possible injury arising from spiders and insects that may be present in the leaf litter etc in Robson His Honour also noted that the cause must be the tree itself and that the mere fact that the tree might provide habitat to animals or insects which cause damage does not mean such damage is "as a consequence of" the tree. He said:

189Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601. Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's property: Dooley v Newell [2007] NSWLEC 715 at [22]-[23].

22 Similar findings are found in Clune v Falconer [2008] NSWLEC 1458 for mosquitos.

23 Therefore, this element of the application must be dismissed.

Orders

24 As a consequence of the forgoing, the Orders of the Court are:

(1) The application is dismissed.

___________________________

J Fakes

Commissioner of the Court

Decision last updated: 05 October 2012