Beattie v Wechner
[2016] NSWLEC 1442
•27 September 2016
|
New South Wales |
Case Name: | Beattie & anor v Wechner & anor |
Medium Neutral Citation: | [2016] NSWLEC 1442 |
Hearing Date(s): | 27 September 2016 |
Date of Orders: | 27 September 2016 |
Decision Date: | 27 September 2016 |
Jurisdiction: | Class 2 |
Before: | Fakes C |
Decision: | Application dismissed |
Catchwords: | TREES [NEIGHBOURS] Potential damage to property |
Legislation Cited: | Trees (Disputes Between Neighbours) Act 2006 |
Cases Cited: | Barker v Kryiakides [2007] NSWLEC 292 |
Category: | Principal judgment |
Parties: | Applicants: Ms V Beattie and Ms M Kenna |
Representation: | Applicants: Ms M Kenna (Litigant in person) |
File Number(s): | 176712 of 2016 |
JUDGMENT
COMMISSIONER: The applicants own a property in Minnamurra. In 2011 they built a swimming pool in their backyard. The pool is relatively close to the dividing fence between the parties’ properties.
Growing at the rear of the respondents’ property, also relatively close to the dividing fence, are two species of bamboo. The taller of the two is a tall growing clumping form of black bamboo.
Leaves from the bamboo fall into the applicants’ pool and block the filter. While the applicants regularly empty the filter, it seems on an almost daily basis, they are concerned that if they are unable to attend to it, permanent damage may occur.
In an attempt to avoid future damage to the pool filter, the applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 for orders seeking the removal of one clump of tall bamboo (identified at Tree 2 on the diagram in the application claim form), the pruning of two other large clumps (T3 and T4) and the maintenance of a row of a species small bamboo which is growing along the dividing fence (T1).
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or
(b) is likely to cause injury to any person.
Injury is not an issue in these proceedings.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.
As the applicants are 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.
Photographs included in the application claim form show the accumulation of leaves in the filter. The photographs also show large culms of the bamboo leaning well over the dividing fence.
The respondents did not participate in either the directions hearing before the Assistant Registrar or the on-site hearing. I am satisfied that respondents have been properly served. I knocked/rang three times but no one answered the door. The matter proceeded in their absence.
I observed the plants nominated in the application claim form. It appears as though the row of bamboo has been trimmed to just below fence height and the large clump of bamboo, T2, has had some stems removed and others tied back. This will limit leaf drop onto the applicants’ property. The two other clumps of bamboo are some distance away from the fence.
The second applicant stated that the bamboo was present when the pool was installed but much smaller. I was shown the filter. I was informed that the applicants had offered to prune the overhanging canes but were asked not to by the first respondent.
It was confirmed that no damage had occurred to the filter and no evidence was provided that damage is likely to occur within the next twelve months or there were exceptional circumstances that would prevent the applicants from carrying out the regular maintenance regime they have in place.
While I am not satisfied that any damage has occurred to the pool filter as a consequence of the leaves, or is likely in the near future to occur, as a matter of discretion I would not make any order for any intervention with the bamboo on the basis of leaf litter.
In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paragraphs [168] to [173] discusses ‘damage’ in general. In this discussion, his Honour specifically noted (at [171]) that:
171 However, 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.
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.
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 Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and while I understand the applicants’ frustration, so it is with this matter.
Therefore as none of the tests in s 10(2)(a) are met, the Court has no jurisdiction to make orders for any intervention with any of the nominated plants.
Therefore, the Orders of the Court are:
(1)The application is dismissed.
_______________________
Judy Fakes
Commissioner of the Court
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