Davids v Shami

[2010] NSWLEC 1328

Land and Environment Court

of New South Wales

CITATION:

Davids & Anor v Shami & Anor [2010] NSWLEC 1328

PARTIES:

APPLICANTS
Mr Charles Davids
Mrs Teresina Davids

RESPONDENTS
Mr Sami Shami
Mrs Deborah Shami

FILE NUMBER(S):

20741 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- damage to property; application dismissed

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

25/11/2010

EX TEMPORE JUDGMENT DATE:

25 November 2010

LEGAL REPRESENTATIVES:

APPLICANTS
C and T Davids [litigants in person]

RESPONDENTS
S and D Shami [litigants in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

25 November 2010

20741 of 2010 Davids v Shami

JUDGMENT

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

1 COMMISSIONER

: This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Punchbowl against the owners of a tree growing on an adjoining property.

2 The applicants are asking the Court to order the removal of all branches of the tree that overhang their garage and a reduction in height of the tree. These orders are sought as they contend that fallen branches from the tree have caused damage to their garage roof on two occasions. They are concerned that future damage may occur. The applicants are not seeking the removal of the tree.

3 The applicants also raised concerns over the dropping of leaves and other debris onto the roof.

4 The tree is a mature Eucalyptus punctata (Grey Gum) planted in 1978. It is located in the north-eastern corner of the respondents’ property. It overhangs the applicants’ garage (to the north) by about 3.5m. The applicants built their dwelling and garage in 1979 and the tree was very small at that time.

5 In 2006 a branch fell from the tree and caused damage to one panel of the applicants’ garage roof. This was replaced by the applicants. The applicants could not recall the weather conditions at the time nor the size and condition of the branch that fell.

6 In March 2010 in very windy conditions, a substantial live branch failed and fell onto the garage roof. This resulted in damage to the edge strip and several more roofing panels. The applicants replaced these as a claim against their home insurance. This claim has resulted in an increase in their insurance premium. Apart from their concerns about damage to their garage the applicants are concerned that if future damage occurs this will also have consequences for their insurance premium.

7 On both occasions the respondents did not see the damage to the roof panels. The insurance report tendered by the applicants dated 19 March 2010 states that the inspector found “slight damage to the capping on the garage and several roofing sheets”. In the inspector’s opinion the limb that fell in March 2010 had caused this damage.

8 In June 2010 the respondents applied to Bankstown City Council to have the tree removed. The reason stated in the application was because of complaints from the neighbours. Permission to remove the tree was refused however a permit was issued under the Tree Preservation Order for the pruning of low minor overhanging branches and any deadwood.

9 This work was carried out in July or August 2010 and included the removal of old stubs from a previous pruning. My observation of the tree is that the work has been carried out in accordance with the permit and with AS4373 – The Australian Standard for Pruning of Amenity Trees.

10 The tree had last been pruned in 1996 and according to the respondents stubs had been left on the tree. From what was said on site, it seems that the earlier pruning had not been carried out in accordance with the Australian Standard.

11 I observed the tree from both properties from the ground and from a ladder from the applicants’ property when I inspected the garage roof. I was unable to determine from where the large branch fell however I saw where small branches had failed in the past. It is possible that the branch was from an old stub or that the failure occurred at a point beyond the branch collar. The point of failure is not clear in the photographs tendered in evidence. It is clear that the stub was removed in the last pruning.

12 In inspecting the tree, I saw no obvious structural defects in the trunk or branches, I saw no signs of unstable branch attachments and no deadwood of any size for concern.

13 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property or is likely to cause injury to any person.

14 In this case I accept on the balance of probability, that the tree has caused damage to the roof of the applicants’ garage. Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order.

15 In making an order, the Court must 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 likely to contribute to the local ecosystem and to biodiversity.
(e) The tree adds to the scenic value of the land on which it is growing.
(f) The tree is one of few canopy trees in the vicinity and it can be seen from nearby streets. Therefore it has intrinsic value to public amenity.
(h)(i) The respondents have recently had the tree pruned of all dead wood – the most likely part of a tree to fail.
(j) Other matters: The tree was given to one of the respondents on the day he became an Australian citizen. The tree therefore has special value to the respondents.

16 The applicants are concerned about future damage. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, the Court has determined that as a ‘rule of thumb’ the ‘near future’ is a period of 12 months from the date of the determination. I consider this period to be appropriate in this case. The tree has been growing in this location for more than 30 years and has lost only two branches of a size that caused some minor damage to the roof.

17 With respect to the leaves and other debris, there is no evidence that this in itself has caused damage to the applicants’ property and no orders can be made with respect to this element of their application.

18 In this matter, while I appreciate the applicants’ concerns, there is no evidence that any part of the canopy is likely to fail in the near future. Therefore there is no arboricultural or other basis on which an order can be made for any further interference with this tree.

19 Therefore, as a consequence of the forgoing, the Orders of the Court are:

1. The application is dismissed

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