Becker v Runciman

[2016] NSWLEC 1624

Land and Environment Court

New South Wales

Medium Neutral Citation:	Becker v Runciman [2016] NSWLEC 1624
Hearing dates:	20 December 2016
Date of orders:	20 December 2016
Decision date:	20 December 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; no evidence that tree roots have caused damage; respondent can prune overhanging branches.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Terence James Becker (Applicant) John Wayne Runciman (Respondent)
Representation:	Terence James Becker, litigant in person (Applicant) John Wayne Runciman, litigant in person (Respondent)
File Number(s):	240397 of 2016

Judgment

Background

1. Mr Becker (‘the applicant’) of Kingfisher Shores seeks orders for the removal of a neighbouring fig tree. The tree grows immediately adjacent to his side boundary and is not much more than a metre from his dwelling. Branches overhang the boundary and brush against his roof, guttering and a television reception dish. A crack runs across the paved path between the tree and his dwelling. Mr Becker is not sure if the crack is caused by the tree, but says it might be, and if it is he wants it repaired by his neighbour. He has applied to the Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’).

2. Mr Becker’s neighbour Mr Runciman (‘the respondent’) planted the tree in 2011 as a semi-mature bonsai specimen that had been grown in a pot. He planted it in a narrow bed against the boundary, in between the two neighbouring dwellings which are only about two metres apart at this point. Mr Runciman says the crack in his neighbour’s paving existed before he planted the tree. He says Mr Becker trespassed on his property to prune the tree in 2015. He says the tree contributes to the landscape value of his property.

3. At the onsite hearing Mr Becker expressed his concerns, and in my view justifiably so, about the tree’s potential to grow much larger and to impact his property.

Pruning of overhanging branches

4. Mr Becker says he cannot prune branches that overhang his property. He bases this on advice he received from a council officer.

5. Mr Runciman provided a copy of Wyong Shire’s tree pruning information sheet, which explains that trees can be pruned without consent if they are pruned according to the Australian Standard (AS4373) for Pruning of amenity trees. It follows that Mr Becker can prune overhanging branches if he does so within the guidelines of the Standard (pruning to branch collars) and without trespassing or pruning beyond the boundary. Mr Runciman expressed his willingness to assist by pruning some branches further back over his own property.

Has the tree caused damage to Mr Becker’s property?

6. There is no evidence that overhanging branches have caused damage to Mr Becker’s dwelling. The crack in his paved path is near the tree, but there is no evidence that any roots from the fig tree grow beneath the path here. The paving is around 20 years old and some cracking was observed elsewhere. Mr Runciman pointed out a similar crack on his own property in a similar position relative to his dwelling and an expansion joint in an outdoor concrete slab. He is a concreter and says this pattern of cracking is not unusual.

7. Mr Runciman says their properties are within a mine subsidence area and that packing beneath the slab might contain loose rubble. He says these are likely causes of the cracked paving.

8. Because there are other possible causes of the cracked paving, and no evidence was adduced that roots have caused damage, I cannot be satisfied that the tree has caused damage to Mr Becker’s property.

9. I note here that Mr Becker’s concerns regarding the species of tree and its potential size are reasonable and justified. Even with regular pruning, the fig tree and its roots will continue to grow. It is in a narrow bed, the base of its stem on one side against the garden bed edging on Mr Runciman’s property, on the other against the fence along their common boundary. Paved surfaces are on either side. It is most likely that the tree will impact both properties as it grows, however I cannot be satisfied that this will occur within 12 months, a period generally accepted by the Court, since Yang v Scerri [2007] NSWLEC 592, to represent ‘the near future’.

10. The jurisdiction of the Court is limited by s 10(2) of the Trees Act:

10(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.

Conclusion

11. Because none of the jurisdictional tests at s 10(2) is satisfied, I cannot make orders regarding the tree and the application will be dismissed. I note that, within certain conditions, Mr Becker can prune branches overhanging his property.

Orders

12. The orders of the Court are:

1. The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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