Barbour v Stillianesis

[2010] NSWLEC 1120

Land and Environment Court

of New South Wales

CITATION:

Barbour & anor v Stillianesis [2010] NSWLEC 1120

PARTIES:

APPLICANT

George Barbour
Suk-Kyoung Lee

RESPONDENT
Con Stillianesis

FILE NUMBER(S):

20202 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property
Repair of pathway ordered

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

20 May 2010

 
DATE OF JUDGMENT: 

20 May 2010

EX TEMPORE JUDGMENT DATE:

20 May 2010

LEGAL REPRESENTATIVES:

APPLICANT
George Barbour [litigant in person]
Suk-Kyoung Lee [litigant in person]

RESPONDENT
Con Stillianesis [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

20 May 2010

20202 of 2010 Barbour & anor v Stillianesis

JUDGMENT

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

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by the owners of a property in Gipps Street Concord against the owner of two trees growing at the rear of a property in Loftus Street Concord.

2 The applicants are seeking the removal of the two trees and their roots as they contend that the roots of one of the trees has caused damage to a pathway and a fence and that the other may cause damage in the future.

3 They also contend that the damage to the pathway is such that it poses a risk of injury to people, particularly children who use the pathway daily.

4 The applicants are seeking compensation for the removal and replacement of the pathway.

5 The respondent does not want the trees removed as he values the trees for the shade and screening they provide.

6 The trees are a Schinus areira (Peppercorn) (Tree 1) and a Toxicodendron succedaneum (Rhus) (Tree 2). The trees are growing along the respondent’s rear fence that is also the applicants’ side boundary fence.

7 The Peppercorn is a well-established mature tree of considerable diameter. It is growing in the north-eastern corner of the respondent’s property within 1 m of two adjoining boundary fences. It is in normal health and condition for a tree of its age. It has a slight lean to the south due to the shading effect of the applicants’ house to its north. Some of the canopy overhangs the applicants’ house.

8 Tree 2 is closer to the north-western corner. This tree is in average condition. Some of the canopy overhangs the applicants’ property and some branches are relatively close to the house. This tree has not caused any damage to date but the applicants are concerned about the future damage that this tree may cause.

9 The damage said to have been caused by Tree 1 is the lifting of a concrete footpath and its displacement away from the eastern side wall of the applicants’ house. The footpath runs between the house and the boundary fence and leads from the front of the property to a side entrance.

10 The southern end of the path has lifted approximately 50mm and the gap between the house and the path is between 20 and 80mm wide. A root from the Peppercorn is clearly visible in this gap. However, there is no cracking of the path itself. It was observed to be flat and level and entirely functional for its full length.

11 At the southern end of the path there is a concrete step. The edge of the step has a horizontal crack. There is also a crack in a section of concrete that has been poured between the metal dividing fence and a section of stencilled pavement near the applicants’ side door. The applicants contend that these cracks have been caused by roots from the Peppertree.

12 The metal fence has lifted slightly as has a canopy over the pathway. The applicants contend that this lifting has been caused by tree roots.

13 The application with respect to damage also refers to a scratching noise when the foliage of the Peppertree brushes against the applicants’ house in strong winds. Another issue raised is the blocking of the applicants’ gutters with leaves from the Peppertree.

14 The applicants are concerned that the gap between the house and the pathway poses a risk of injury to children who attend tutorial classes at the property and who regularly use this pathway. It was my observation that the likelihood of such injury is extremely remote and no greater than the risk posed by the raised lip and gap on the other side of the pathway. As stated previously, the path itself is not cracked and is flat, level and functional.

15 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicants’ property or are likely to cause injury to any person. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is appropriate here, puts the near future as being a period of 12 months from the date of the determination. This rule of thumb is particularly relevant to Tree 2.

16 Only if one or more of these tests is satisfied, can the Court move to s9 of the Act and consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay. These tests must be applied to each tree.

17 The Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are:

a) The trees are wholly located on the respondent’s property.
d) The trees are likely to make some contribution to biodiversity and to the local ecosystem.
e) The trees contribute to the scenic value of the land on which they are growing and to the locality. As already stated, the respondent and his family value the shade the trees provide and the privacy they afford.
f) The Peppertree is clearly visible from Gipps Street, a busy road, and from nearby properties thus the tree contributes to public amenity.
h & i) Other factors. The strip of concrete between the stencilled pavement and the metal fence appears to have been poured after the construction of the other elements, perhaps to fill a gap. There are no expansion joints in this section. The applicants have not excavated or removed concrete to prove the nexus between the crack in this section and the tree although it is conceded that the concrete is close to the tree.

18 Returning to s 10(2) for each tree. There is no evidence that the Rhus has caused, is causing, or could in the near future cause, damage to the applicants’ property. The applicants submitted additional information that included an invoice for clearing of what is assumed to be a sewer pipe and a drainage diagram showing the proximity of their sewer to tree 2. They originally contended that tree 2 had caused a blockage however, this was withdrawn at the hearing as they noted that they had trees and shrubs on their own property in the vicinity of the sewer and that there was no evidence that the blockage had been caused by tree 2.

19 There has not been any reported injury to persons nor is this likely to happen given the size and position of tree 2. Therefore as none of the contentions are found, the Court has no jurisdiction to make an order and this element of the application, with respect to tree 2, is dismissed.

20 With respect to the Peppertree and the various forms of damage that are said to have been caused by this tree. Turning first to the scratching noise, whilst this may be an annoyance, no damage has arisen and thus no order can be made for any intervention with the tree with respect to this issue.

21 With respect to the leaf drop, the tree dispute principle published in Barker v Kyriakides [2007] NSWLEC 292 is relevant in this matter. 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.

22 The principle goes on to state that it is reasonable that such maintenance is done 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. I see no reason to depart from the Court’s consistent application of this principle as no exceptional circumstances were in evidence and thus no orders will be made with respect to this element of the application.

23 Similarly, with respect to the fence and the canopy, whilst they may have lifted slightly, there is no actual damage and no orders will be made with respect to these elements of the application.

24 With respect to the pathway, it is clear that a root from the Peppertree is likely to have caused the separation between the path and the wall of the house and a root or roots may have caused the crack in the step and the crack in the section between the fence and the stencilled pavement. Therefore as two of the tests under s 10(2) are met, the jurisdiction is enlivened and the Court may make an order under s 9 with respect to Tree 1.

25 Moving to the discretionary powers allowed in s 9, the remedy sought by the applicants, that is, the removal of the tree, is disproportionate to the damage. The damage at this stage is very minor however it is appropriate to make an order to prevent further damage to the pathway that would arise if the root were left to grow. An order relating to the repair of the step is also appropriate given the proximity of the step to the lifted end of the pathway. However, for the reason of the factors referred to in s 12(h-i), as a matter of discretion, no orders will be made with respect to the crack in the section of concrete between the fence and the stencilled concrete.

26 The Orders of the Court are:

1. The application to remove the trees is refused.
2. The respondent is to locate and sever the root seen to be causing the damage to the path. Root pruning is to be limited to that particular root.
3. The respondent is to organise and pay for the infilling of the gap between the path and the side of the applicants’ house. This shall include the removal of the section of root between the house and the path, the installation of an expansion joint between the house and the concrete infill, oxiding of the replacement concrete to as close as possible a match with the existing concrete. Cuts shall be clean saw cuts.
4. The respondent is to organise and pay for the repair of the crack in the step.
5. The respondent is to give the applicant at least 2 working days notice of any access required for the purpose of gaining quotes for the works.
6. The applicants are to provide reasonable access for this to happen.
7. The respondent is to give the applicants at least 3 working days notice of the commencement of the works.
8. The applicants are to provide all reasonable access for these works to proceed in a safe and efficient manner.
9. The works are to be completed within 90 days of the date of these orders.

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