Cachia v O'Connor

[2008] NSWLEC 1278

Land and Environment Court

of New South Wales

CITATION:	Cachia v O’Connor [2008] NSWLEC 1278
PARTIES:	Laurence Cachia v Michael O’Connor
FILE NUMBER(S):	20472 of 2008
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Jurisdiction - Trees (Neighbours) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Wyong Shire Council v Shirt (1980) 146 CLR 40 Yang v Scerri [2007] NSWLEC 592 Nair v Edwards [2006] NSWSC 1310
DATES OF HEARING:	3 July 2008
EX TEMPORE JUDGMENT DATE:	3 July 2008
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

3 July 2008

08/20472 Laurence Cachia v Michael O’Connor

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Formal case references have also been added.

1 COMMISSIONERS: In April 2008, McLaughlin AsJ in the Supreme Court ordered the transfer to the Land and Environment Court of an application concerning a tree located on Mr O’Connor’s property. This tree had been amongst a number of matters concerning Mr O’Connor’s property subject of an application by Mr Cachia to the Supreme Court (SC Matter No: 5565 of 2007). His Honour held that the Supreme Court did not have jurisdiction to deal with any of the elements for which Mr Cachia claimed relief – dismissing two of them and transferring the other to be dealt with by the Land and Environment Court pursuant to the Trees (Disputes Between Neighbours) Act 2006.

2 At a preliminary hearing, directions were given for Mr Cachia’s filing of the necessary information for an application pursuant to the Trees Act and provided Mr O’Connor with an opportunity to put on material in reply.

3 We have attended Mr Cachia’s property this morning and inspected the tree on Mr O'Connor's land. We have heard submissions from Mr Cachia and Mr O’Connor.

4 We have considered the four jurisdictional prerequisites contained in s 10(2) of the Trees Act – at least one of which must be satisfied prior to us proceeding to consider whether, as a matter of discretion, we should make any orders for the interference with or removal of the tree.

5 The tests in s 10(2) require us to consider whether the tree has, in the past; is at the present; or is likely, in the near future, to cause damage to Mr Cachia’s property or whether it is likely to cause injury to any person.

6 The tree which is the subject of a claim overhangs the power and communications cables from their mains supply points to Mr Cachia’s house. Mr O’Connor maintains the tree trimmed away from those lines and the trimming at the present time appears to be of the order of 700 mm up to 1 m from the lines. However, we accept Mr Cachia’s submission that when the tree is in full leaf (it being a deciduous tree and bare at the time of the hearing) branches may approach closer to (but not touch) the lines.

7 Mr Cachia concedes that there has not in the past been (nor is there, at the present being) any damage occasioned to his property by the tree. Therefore, the two tests that remain relevant (of the four) are:

• is the tree likely in the near future to cause damage to Mr Cachia’s property? or
• is the tree likely to cause injury to any person?

8 In each of these tests, the word “likely” requires to be considered in the context of the decision of the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40 which does not merely require consideration of whether there is a risk but also of the reasonable foreseeability of that risk coming to fruition.

9 We accept that Mr Cachia honestly and sincerely holds fears that there may be damage to the cables but the honesty and sincerity of his belief is not relevant in the circumstances unless we are objectively satisfied that what he fears is, in fact, likely to occur.

10 There is no history of this tree dropping branches onto the power lines. We have an arborist's report provided by Mr O’Connor which states that:

• there is only a trifling amount of small deadwood in the canopy of the tree;
• there are no structural or root defects of the tree; and
• the tree is not likely to fail.

11 Our observations of the tree confirm these statements.

12 As a consequence, we are not satisfied that either of the remaining tests in s 10(2) (is it likely that the tree will fail in any fashion so as to cause damage to Mr Cachia’s property or injury to any person?) is met.

13 Concerning the aspect of the likelihood of damage to Mr Cachia’s property, such likelihood would, in any event, need to be in the near future. In Yang v Scerri [2007] NSWLEC 592, the Court considered what might be an appropriate rule of thumb for that phrase and held that 12 months would be an appropriate period of time to consider.

14 Although we are not bound by that decision, we have considered the time period it proposes in the context our examination of this tree and consider it would be reasonable also to adopt a similar approach here. (Indeed, this is a more permissive approach than that recently adopted in the Supreme Court by Windeyer J who held, dealing with matters of nuisance and trees, that six months would be an appropriate period of time [see Nair v Edwards [2006] NSWSC 1310]).

15 We are of the view that there is no likelihood within that period of time (or, indeed, any reasonable likelihood at all) of damage being occasioned to Mr Cachia’s property. The claim under section 10(2)(a) is therefore not satisfied.

16 A similar position arises as to the question of the likelihood of injury to persons. There is no reasonable likelihood at all of injury being occasioned to any person. As a consequence, we are satisfied that we do not have jurisdiction to deal with the application and it is therefore dismissed.

Tim Moore Peter Thyer
Commissioner of the Court Acting Commissioner of the Court