Fernandez v Chapman
[2017] NSWLEC 1357
•05 July 2017
Land and Environment Court
New South Wales
Medium Neutral Citation: Fernandez v Chapman & anor [2017] NSWLEC 1357 Hearing dates: 5 July 2017 Date of orders: 05 July 2017 Decision date: 05 July 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at (15).
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); debris; not satisfied that damage has occurred; risk of damage; orders for pruning. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Cavalier v Young [2011] NSWLEC 1080Category: Principal judgment Parties: Jineth Fernandez (Applicant)
Kurt Chapman (First Respondent)
Celia Gwen Chapman (Second Respondent)Representation: Maurice Navarrete, Solicitor (Applicant)
Kurt Chapman, Litigant in Person (Respondents)
File Number(s): 108157 of 2017
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
The application
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Mrs Fernandez (‘the applicant’) has outbuildings and paved areas near a back corner of her Sadleir property. A smooth-barked Eucalypt (‘the tree’), possibly Eucalyptus scoparia, grows on a property to her southwest.
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Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) Mrs Fernandez has applied to the Court seeking orders for removal of the tree and compensation of $4,820 for damage to her property on the following grounds:
Branches have fallen onto the roofs of a shed and what I will call an outdoor patio area, cracking the corrugated fibreglass sheeting, which she has had to replace;
Fallen leaves and twigs collect on the roof material, causing it to degrade, and their weight when wet causes further damage;
Leaves block gutters causing them to overflow onto outdoor areas;
She prevents family members, including children, using the area because falling limbs may injure them;
Debris on paving is degrading it;
A family member has slipped on wet leaves on paving after rain.
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To support her claim Mrs Fernandez relies on:
Photographs showing cracked roofing sheets, branches that have fallen onto the roof, leaves and twigs on the roof and paving, and her efforts at cleaning leaves and twigs from the roof, guttering and paving;
Invoices for materials and works to repair her roof and fence, although these only amount to half of her compensation claim, which also includes undocumented amounts for monthly maintenance and cleaning supplies;
A letter from a medical doctor explaining health impacts on Mrs Fernandez of cleaning up tree debris, and describing other health conditions that make it difficult for her to do such physical work;
A letter signed by other neighbours supporting removal of the tree.
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Mrs Fernandez’ solicitor, Mr Navarrete, contends that the Court has jurisdiction to make orders because the tree has caused damage to her roof, or, if the Court does not accept that, he says it is evident that overhanging branches will fall and cause damage, or are likely to cause injury.
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Mrs Fernandez wants all branches overhanging her property removed if the Court does not order removal of the entire tree.
Response of the tree’s owners
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Mr and Mrs Chapman (‘the respondents’) own the tree. They say they like the tree and wish to keep it. They say people’s safety is upmost in their minds but they do not think the tree is likely to injure anybody. Mr Chapman contends that pruning overhanging limbs back to the boundary would not prevent leaves being blown onto the applicant’s dwelling. Mr Chapman says the tree has no impact on Mrs Fernandez’ dwelling.
Findings
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The two properties are joined at their corners. As Fakes C found in Cavalier v Young [2011] NSWLEC 1080, this is sufficient to be regarded as ‘adjoining land’ for the purposes of the Trees Act.
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Before making any orders I must first be 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 likely to cause injury to any person (s 10(2) of the Trees Act).
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The tree is several metres from the corner where the properties adjoin, but its broad spreading canopy overhangs the Chapmans’ garden, part of the property to their north and part of Mrs Fernandez’ property to their northeast.
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The tree is mature, 12–15 m tall, with a stem diameter of approximately 80 cm. It is relatively healthy, although some deadwood and mistletoe are present throughout its crown, and a central limb in the upper crown, well away from the applicant’s property, is dying back.
Has the tree damaged the applicant’s property?
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Based on my onsite observations and the evidence adduced, I cannot be satisfied that the tree has damaged Mrs Fernandez’ property. Cracks in the older fibreglass roofing may be due to its age. Other similar roofing material that remains onsite can be seen to be degraded by age. Roofing is weighed down with bricks or concrete blocks, which may have damaged the material.
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If damage has resulted from leaves and twigs sitting on roofing or paving, or blocking guttering, this could have been prevented by maintenance. I appreciate Mrs Fernandez has physical limitations, and Mr Navarrete argues that the daily maintenance required here is not reasonable, but I do not see that the maintenance requirements here are any more onerous than many other cases where the Court has consistently applied the principle regarding debris in Barker v Kyriakides [2007] NSWLEC 292. Although this element of the application may enliven the Court’s jurisdiction, I would not make orders on this basis for compensation or to interfere with the tree.
Risk of damage or injury
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Regarding the risk of damage or injury, there are no major structural defects in the tree’s crown. Some deadwood may fall. Foliage scraping the roof may cause some damage to roofing which, although relatively minor, enlivens the Court’s jurisdiction. Most of the foliage touching the roof belongs to the mistletoe. Removal of the tree is not required to address this. Pruning the tree to remove deadwood, as well as removing foliage near the roof, is proportionate to the level of risk. Foliage directly within two metres of existing roofing (as opposed to foliage within a two-metre setback of the building) is to be removed.
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I note that removal of other mistletoe in the crown would benefit the tree’s health, but this will not be ordered as it is not required for risk mitigation.
Orders
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As a result of the above, the orders of the Court are:
Within 60 days of the date of these orders the respondents are to engage a suitably qualified arborist (minimum AQF level 3), with appropriate insurances, to remove deadwood greater than 50mm diameter from the tree’s crown and to remove any of the tree’s foliage and mistletoe directly within 2 metres of the existing roofing on the applicant’s property.
The works are to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
The respondents are to give the applicant 7 days’ notice of these works.
The applicant is to allow any access to her property required for the works during reasonable hours of the day.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 05 July 2017
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