Barruffa v Zebrowski

[2008] NSWLEC 1401

Land and Environment Court

of New South Wales

CITATION:	Barruffa v Zebrowski [2008] NSWLEC 1401
PARTIES:	APPLICANTS R & M Barruffa RESPONDENTS E & H Zebrowski
FILE NUMBER(S):	20643 of 2008
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Trees (Neighbours) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Robson v Leischke (2008) 159 LGERA 280, [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
DATES OF HEARING:	25 September 2008
EX TEMPORE JUDGMENT DATE:	25 September 2008
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER C

25 September 2008

20643 of 2008 R & M Barruffa v E & H Zebrowski

JUDGMENT

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


1 COMMISSIONERS : Along the boundary between 15 and 17 Victoria Street, Ashfield, are a number of trees presently growing on 15 Victoria Street.

2 Mr Barruffa, who is one of the owners of 17 Victoria Street, seeks orders that Mr and Mrs Zebrowski, who are the owners of 15 Victoria Street should remove the trees. The trees comprise five pines at the front of the property in the front setback, five smaller trees (that appear to be Golden Cypresses) in the rear and toward the rear boundary a large grapefruit tree some 3 to 3.5 m tall

3 The five pines at the front of the property are of the order of 4 m in height and the five Golden Cypresses are of the order of 1 to 1.2 m in height.

4 There are different bases upon which Mr Barruffa makes his application each group of trees(s).

5 In addition to the trees which we have just described, there were also, as at late 2006, two further pines located in 15 Victoria Street immediately adjacent to the five pine trees in the front setback – somewhat further toward the rear of the property but in front of or adjacent to the front corner of the building on 15 Victoria Street – spaced generally consistently with the five trees which remain. At the time of their removal, the first of these trees was some 2 m in height and the second was some 6 to 7 m in height.

6 Mr Barruffa’s claim is in four distinct parts. The first relates to the lifting and cracking he has experienced to a concrete edging strip in the front setback between the two properties. We have examined what appears to be the boundary line between the properties and we cannot be satisfied, on the balance of probabilities, that the edging strip is, in fact, on Mr Barruffa’s property. Indeed, taking what we consider is a reasonable indication of the location of the boundary from the fencing on the street front, it is clear that the element of the structure which Mr Barruffa considers have been damaged is, in fact, located on 15 Victoria Street and does not comprise his property, on his land and therefore is not a matter with respect to which the Court has jurisdiction.

7 That being the only matter of damage about which there is any evidence concerning the five front trees, we do not consider that any of the tests pursuant to s10(2) of the Trees (Disputes Between Neighbours) Act 2006 are satisfied with respect to those trees and we decline to make any order concerning them.

8 The second matter that is raised by Mr Barruffa concerns damage to his house where there is cracking in the front bedroom and minor cracking to the adjacent pathway. There are two matters of causation arising in this regard. First, it is the agreed position that a downpipe from 15 Victoria Street drained across the setback in that property and into Mr Barruffa's property. It is also not contested that, further down slope, that pipe became blocked within Mr Barruffa's property. Mr Barruffa, after a discussion with the owners of 15 Victoria Street agreed to a position whereby the blockage of the downpipe at gutter level together with his blockage of that pipe below ground level was an acceptable resolution of that problem (that is the draining of water with the water from the gutttering draining to a downpipe to the rear and to another stormwater pipe not involved in these proceedings.

9 Mr Barruffa has provided us with a photograph showing tree roots under his property. That photograph is appended to a report prepared by a firm of structural and civil engineers and dated 18 May 2006. That report, which was written as a result of an inspection by an engineer, Mr Charles Ricard who visited the site on 27 February 2006, made a number of comments and recommendations. The first relevant comment that is made in the report is under the heading Diagnosis and it makes it clear that the two trees which were causing damage, in the author’s opinion, to Mr Barruffa's house, were the two trees that at that time were located at the western end of the row of pine trees. These are the two trees which were removed at the end of 2006. The suggestion is merely made by the engineer that the other five trees be pruned.

10 The trees that were removed were removed prior to lodgement of this application. Consistent with the discussion by Preston CJ in Robson v Leischke (2008) 159 LGERA 280, [2008] NSWLEC 152 at para 144 , a tree needs to be in existence at the time the application is made for this Court had jurisdiction to deal with any damage which might have been caused. by the tree.

11 The trees that, on the engineer's evidence, were likely to have caused the damage to the front bedroom of Mr Barruffa's house, were not in existence as at the date of the application and therefore, to the extent that there might be some remedy for that damage, that remedy does not lie pursuant to this legislation in this jurisdiction. This element of his claim must fail.

12 We turn now to the question of the five Golden Cypress trees. These trees are approximately 1.2 m in height. Mr Barruffa is concerned that, at some time in the future, they may cause damage to his path and garden bed surrounds close to these trees. The relevant provision of s 10(2)(a) of the Act requires us to be satisfied that such damage is likely to be caused in the near future before the Court has jurisdiction to consider any of the discretionary questions about whether intervention is warranted. In Yang v Scerri [2007] NSWLEC 592, the Court considered what might be an appropriate interpretation of in the near future . A rule of thumb was published that adopted a 12 month period from the time of hearing. That time period is more permissive than that which had been adopted in similar circumstances by the Supreme Court when six months was considered to be an appropriate period of time (when dealing with a more general action concerning the future damage by trees).

13 We accept that Mr Barruffa may genuinely hold concerns that these trees will damage his property at some future time. However, given the size of these trees, we have no arboricultural basis upon which we could conclude that, if there were to be such damage, such damage was likely in the near future. We are therefore not satisfied that there is any jurisdictional basis upon which we could make any order with respect to those five Golden Cypresses.

14 The final tree to which we need to turn is the grapefruit tree in the corner. We note that the owners of the tree have installed root barriers along the boundary which extend some 770 mm or so below the ground. We also note that Mr Barruffa has the roof drainage of his shed (whose floor and sewer pipe connection are of concern to him) draining onto a concrete slab near the south-eastern corner of that shed rather than directly and appropriately into a drain pipe. We have no way of assessing the impact of this inappropriate drainage arrangement.

15 We do not consider that we can be satisfied to the degree of comfortable satisfaction required that the minute cracking that has been caused to the slab of that shed was, in fact, caused by the grapefruit tree. Even if we had been satisfied that that was the position, having regard to the facts that the extent of that cracking is so minor; his unsatisfactory roof drainage and the tree was in existence at the time Mr Barruffa erected the structure and the slab surrounding the sewer pipe connection, that, as a matter of discretion, we would not make any orders with respect to the grapefruit tree.

16 The consequence of all we have said is that Mr Barruffa’s application fails on all counts and is dismissed.

Tim Moore
Commissioner of the Court

Peter Thyer
Acting Commissioner of the Court