Clarke v Halloran

[2009] NSWLEC 1397

Land and Environment Court

of New South Wales

CITATION:

Clarke v Halloran [2009] NSWLEC 1397

PARTIES:

APPLICANT
Gregory and Patricia Clarke

RESPONDENT
John and Suzanne Halloran

FILE NUMBER(S):

20593 of 2009

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Removal of a tree, damage to property and injury to person

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

25 November 2009

EX TEMPORE JUDGMENT DATE:

25 November 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Lindeman (solicitor)
SOLICITOR
Priest McCarron

RESPONDENT
John and Suzanne Halloran (litigants in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

25 November 2009

20593 of 2009 Gregory and Patricia Clarke v John and Suzanne Halloran

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

JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Patricia and Gregory Clarke of 4 Skye Court Port Macquarie against the owners of a tree growing at 24 Bangalay Drive Port Macquarie. The owners of that property are Suzanne and John Halloran. Mr Matthew Lindeman of Priest McCarron represented Mrs Clarke; Mr Clarke did not attend the hearing.

2 In the application before the Court, Mrs Clarke is seeking the removal of the tree as she contends that it has caused both damage to her property and injury to her person. She is concerned that the tree will continue to pose a risk of damage and injury.

3 In her application she is also seeking compensation for a sum of $5000 for, what is assumed to be, expenses related to the replacement of a broken window, the fitting of roofing material and blinds to a rear timber deck, installation of gutter guard and the installation of a pool cover. These costs were said to have been incurred in order to protect her property from branches and other debris falling from the respondents’ tree. There are no receipts for any of these items attached to the application. However, the application contains a statement that the claim for compensation will be withdrawn if the respondents agree to the removal of the tree. At the on site hearing, the applicant withdrew the claim for compensation.

4 Mrs Clarke also stated that she was no longer seeking the removal of the tree but rather the pruning of dead wood and or overhanging branches.

5 The tree is a mature Eucalyptus pilularis (Blackbutt) located in the southern corner of the respondents’ rear garden. It overhangs the applicants’ property by some metres. The majority of the overhang is above a garden; a small portion overhangs a deck.

6 The tree was inspected from both properties and binoculars were used to view the upper sections of the canopy. The tree is healthy and has no obvious or significant defects. There was evidence of two branch failures on the respondents’ side. One of these branches was retained by the respondents and was inspected at the hearing. The branch fell about four years ago; the base of the branch indicated some minor borer damage. No damage or injury was sustained as a result of that failure.

7 The tree has less than 1% deadwood and what is present is of small diameter, perhaps 25-30 mm at its base.

8 There is evidence of previous pruning on the southern and western sides of the tree. The work appears to have been carried out in accordance with AS4373:2007 Pruning of Amenity Trees. However, Mrs Halloran stated that one of the arborists used climbing spikes to access the tree; the use of these devices in trees to be retained does not comply with this standard.

9 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

10 In this respect, Mrs Clarke stated that about 11 years ago, a dead branch fell from the tree and broke a window at the rear of the house. There was no evidence produced to substantiate this event, and, at the time, she did not inform the respondents.

11 On 5th November 2007, Mrs Clarke contends that a dead branch fell from the tree and hit her in the face when she was gardening beneath the tree. She stated that it was windy at the time and in retrospect it was probably unwise to have been under the tree. A photograph of Mrs Clarke’s bruised face was tendered as evidence; the photograph was dated 6th November 2007. The respondents were not informed of this incident.

12 Mrs Clarke also contends that leaves from the tree fall into her swimming pool and, that as a result of this, the pool filter was damaged. She has now installed a pool cover to keep the leaves out. The applicants’ pool is some 15 m or more upslope from the tree and at least 12 m from any overhanging canopy. Mrs Clarke also pointed out the gutter guard installed to keep leaves out of the gutter.

13 With respect to this application, the Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are:

(a) The tree is wholly located on the respondents’ property.
(d) The tree is a locally indigenous species and appears to have been there before the subdivision. According to both parties, koalas and their young regularly use the tree as a browse tree. According to Mrs Halloran it is also used regularly by possums, tawny frogmouths and other birds. As such it makes a contribution to local biodiversity and to the ecosystem.
(e) It contributes to the scenic value of the land on which it is growing and to the locality. The respondents value the tree and do not wish to have it removed. Mrs Halloran contends that trees are an integral part of the character of the area.
(f) The tree has some value to public amenity as it is part of the local tree canopy and can be seen from neighbouring properties.
(h &i)(ii) Actions by the applicants and or the respondents. The tree has been pruned at least twice through actions of the applicants with access provided by the respondents. On one occasion the respondents paid half the cost. The respondents sought advice from council and, as a result of that advice, the Hallorans commissioned an AQF level 5 arborist to inspect and report on the tree. The report, submitted as evidence by the respondents, was prepared by John Kennedy of JKL Consultants on 27th August 2009. In that report Mr Kennedy states that the tree had a relatively thin crown at the time of inspection due, in his opinion, to browsing by a resident koala and the recent pruning. Apart from that, the tree was reported to be in average condition with no major defects. His recommendation was for no further pruning but monitoring every six months.

14 After viewing the evidence and hearing from the parties I make the following conclusions.

15 With respect to the pool and the alleged damage to the pool filter, the pool is many metres from the tree. Whilst it is possible for leaves to blown some distance, the adopted tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292 is relevant here. In Barker, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This is appropriate in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. This principle also applies to leaves on the roof and gutters.

16 The respondents were not notified of the broken window or the damage to Mrs Clarke’s face and therefore had no opportunity to take action. Both of these incidents involved the falling of dead wood in windy conditions.

17 However, if the contentions of the applicant are accepted, then the tree can be said to have caused damage and injury and therefore the jurisdiction is enlivened as two of the elements of s 10(2) are satisfied. As a result, the Court is legally able to make an order. However the Court may then consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the intervention of the Court? If so what should be ordered and who should pay?

18 In the circumstances of this matter, the tree has been substantially pruned away from the applicants’ property. Although there is still some overhang, the branches are well attached. The percentage and size of the remaining dead wood is very minor and does not warrant intervention as the likelihood of damage or injury resulting from the failure of dead wood in proximity to the applicants’ property is remote.

19 The orders of the Court are:

1. The application in its entirety is dismissed.

___________________

J Fakes
Commissioner of the Court