Cavanagh v Grguric

[2014] NSWLEC 1130

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cavanagh & anor v Grguric [2014] NSWLEC 1130
Hearing dates:	26 June 2014
Decision date:	26 June 2014
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; debris falling from trees; application dismissed.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC 1148. McCallum v Riordan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	APPLICANTS April Cavanagh and Christine Piipari RESPONDENT Katherine Grguric
Representation:	APPLICANTS April Cavanagh and Christine Piipari (Litigants in person) RESPONDENT Katherine Grguric (Litigant in person)
File Number(s):	20101 of 2014

Judgment

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

The application

1. Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) provides an avenue for property owners or occupiers to resolve neighbourly disputes involving issues of damage caused by trees, or the risk of damage or injury posed by trees. Ms Piipari and Ms Cavanagh, the owner and occupiers of a residential property in Emu Plains, at the foot of the Blue Mountains, have applied to the Court under Part 2 of the Act seeking orders for neighbouring trees to be pruned and for compensation for damage to property. Their claim is based on debris such as leaves, flowers and twigs falling from a neighbouring Jacaranda and two other trees. The damage they say is caused by the trees is listed in their answer to Question 4 of their Tree Dispute Claim Details (Exhibit B) and includes: damage to their poolside rockery, repeated damage to their pool filter and pool cleaning equipment, debris in the pool dirtying the water, debris throughout the garden and debris in their roof guttering.

1. They also say that fallen leaves and flowers create a slip hazard, giving rise to a risk of injury.

Onsite observations

1. The onsite view allowed observations of the trees and related issues. The two properties share a section of common boundary approximately 5 metres in length, at the rear of each property. There is a 12-metre Jacaranda, some 3-4 metres from the boundary, and a 6-metre evergreen tree and a 4-metre Maple, both adjacent to the boundary. There is some overhang of branches from all three trees over the applicants' property, as would be expected of trees of this size in this location. The applicants' pool is close to the boundary. At the time of the hearing there were leaves from these trees, and to a lesser extent other trees, visible in the pool.

1. The applicants say the pool filter and cleaning equipment have been damaged previously by leaves and other debris. However they have had them replaced and there is no damage at present. They pointed out leaves in the pool, the filter and a pipe. However they did not adduce any evidence of present damage. They say debris from the trees is likely to cause damage to these items in future.

1. In Robson v Leischke [2008] NSWLEC 152, Preston CJ explains at (171):

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.

1. In addition, His Honour states at (172) that "there is no power to make an order in relation to the tree unless such debris of the tree 'has caused, is causing, or is likely in the near future to cause, damage to the applicant's property' on the land".

1. That is, there must be damage to the applicants' property, or a risk of damage in the near future, caused by the trees, before the Court's jurisdiction is enlivened. Even then, under the discretion allowed by the Act, the Court has consistently applied the principle set down by the Commissioners in Barker v Kryiakides [2007] NSWLEC 292 at (20):

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.

1. If I take the applicants' case at its highest, and accept their statements regarding previous damage, I nevertheless find that there is nothing arising out of either the onsite view or the applicants' submissions that would lead me to stray from this consistent principle. Any risk of damage in the near future, or risk of injury, caused by debris from the trees, can be managed with reasonably expected maintenance. Subsequently, no orders will be made to interfere with the trees.

1. Both parties made submissions regarding earlier Council permits relating to tree pruning and permission granted by landowners to enter land. However in light of my findings above, there is no need for those matters to be considered here.

1. The applicants stated that they intend to investigate the area around the pool for root damage. Should they discover evidence that would have been available to them during these proceedings, this does not provide the basis for a further application (see McCallum v Riordan & anor [2011] NSWLEC 1009). However should their circumstances materially change in future, that may give them cause for a new application to the Court, as explained in Hinde v Anderson & anor [2009] NSWLEC 1148.

Orders

1. As a consequence of the foregoing the Court orders that:

(1)   The application is dismissed.

D Galwey

Acting Commissioner of the Court