Hodgson v Woodward

[2009] NSWLEC 1283

Land and Environment Court

of New South Wales

CITATION:	Hodgson v Woodward [2009] NSWLEC 1283
PARTIES:	APPLICANT D Hodgson RESPONDENTS M & L Woodward
FILE NUMBER(S):	20282 of 2009
CORAM:	Moore SC - Pearson C - Thyer AC
KEY ISSUES:	TREES (NEIGHBOURS) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	21 July 2009
EX TEMPORE JUDGMENT DATE:	21 July 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M Muriniti, solicitor L C Muriniti & Associates RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
PEARSON C
THYER AC

21 July 2009

20282 of 2009 Hodgson v Woodward

JUDGMENT

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

1 COMMISSIONERS: This is an application made concerning three trees on a property owned by Mr and Mrs Woodward at Allambie Heights. To the direct west of the property is located a child-care centre operated by the applicant and a number of others associated with his family company. The three trees that are the subject of the application are Chinese Tallow trees.

2 There are two bases for the application. The first is that the leaves from the trees (these are deciduous trees) and, perhaps to a lesser extent, the fruits from the trees fall into a box gutter located at the connection of a new carport structure and sleeping room (for children attending the centre) and an old garage structure that has been converted to form part of the child-care facility. The second is the leaves and fruit from the trees blow onto the applicant's property and constitute a risk of injury to children who attend the child-care centre.

3 Mr Hodgson’s evidence, during the course of the site inspection, was that, during the fruiting season of the trees and the period after that when the fruit from the trees fall from the trees on to his property (a period of some five months in the year he said), every morning he is obliged to clean up the leaves and fruits that fall from the trees. We have had the advantage of seeing one of the fruits that falls from the trees – it is some 3 or 4 mm in diameter.

4 We have in evidence before us two reports prepared by an arborist, Mr Scales. The first is a report dated 20 February 2004 and the later report is dated 29 June 2009.

5 Relevant to one of the issues in the proceedings is the question of whether or not we should have regard to the design of the carport structure in taking account of the gutter blocking and the overflowing water flowing into the cot room in the preschool facility.

6 Mr Scales’ first report (that was written at about the time of the construction of the carport) shows, on page 5, that the first of the Chinese Tallow trees – the one closest to the street – was significantly above the height of the roof of the carport at the time of the construction of the carport.

7 The carport has been designed with a skillion roof that slopes away from the street and towards the structure at the rear. That design of the carport and slope of its roof necessitates there being a box gutter at the rear of the roof where the skillion roof of the carport adjoins the wall of the converted garage to the rear. The converted garage to the rear also has a skillion roof but this slopes across the line of the roof of the carport – sloping from east to west where as the carport roof slopes from north to south.

8 The sole reason why that gutter is a box gutter and blocks as a consequence of the deposition of leaves is the design of the carport roof and the direction of its slope, a matter to which we will return. There is, however, no doubt – having been shown the corners and some separation of the panels of the ceiling in the cot room – that the first of the tests in s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 (that is that the tree has caused damage to Mr Hodgson's property) is engaged and that we have jurisdiction to deal with that element of the claim.

9 Jurisdiction concerning the second element of the claim (that there is a risk of injury to a person) is engaged as a consequence of Mr Scales uncontradicted evidence (in the second of his expert reports) that the leaves and the fruit of the Tallowood are poisonous to humans and animals. Therefore, we are satisfied that we have jurisdiction, on each of the bases that has been contended, to deal with the application. It is therefore necessary for us to consider whether, as a matter of discretion, we ought order any intervention on either of these bases.

10 We turn first to the question of intervention because of the leaves blocking the gutters. The sole reason why the leaves are capable of blocking the gutters is the design of the structure and the fact that, at the time it was designed, no regard appears to have been had to the nature of the deciduous trees located on the Woodward’s property.

11 There are two matters that arise from this. The first is the question of the Tree Disputer Principle published by the Court in Barker v Kyriakides [2007] NSWLEC 292, that those who have the aesthetic and environmental benefits of trees in an urban environment ought accept the responsibility of ordinary property maintenance and the cleaning of leaves, fruits and twigs and the like from guttering and similar structures.

12 That is the position that arises with respect to the box gutter in these proceedings. There is, as a result, an ordinary maintenance requirement to clean this gutter.

13 In addition, compounding that maintenance requirement, is the question of the design of the structure not paying any regard, whatsoever, to the nature of the trees next door and the fact that they were deciduous.

14 Had the structure being designed in a fashion that had regard to the nature of the trees on the adjacent property, the structure could have been designed so this issue did not arise and that the damage would not have occurred. The consequence of these is that, as a matter of discretion, we are not prepared on either of those bases to make any order for interference with or removal of any of the trees on the Woodward’s property.

15 With respect to the question of the risk of injury to any child on the premises from the fruits or leaves of the Chinese Tallow trees, there are two matters to be taken into account.

16 The first is that, on Mr Hodgson’s own evidence, there is a process undertaken by him every morning of cleaning up any deciduous leaves or fruits that may have fallen from the trees and that, as a matter of fact, over the day, there may only be one or two of the small fruits falling from the trees being in the children's play space (provided that preventative maintenance is undertaken by him in the mornings). The undertaking of this maintenance is also entirely consistent with that which has been discussed in the principle in Barker v Kyriakides.

17 The second is that over the years of operation of the child-care facility, there is no evidence that there has been any impact on any child of any of the leaves from the trees or any of the fruits of the tree. As a consequence, even if there were no question of discretion arising out of the trees dispute principle in Barker v Kyriakides, we could not be satisfied that there was any real risk of injury to any person provided the maintenance responsibilities continued to be observed by Mr Hodgson.

18 Therefore, as a matter of discretion on both bases, the application is dismissed.

Tim Moore Linda Pearson

Senior Commissioner Commissioner of the Court

Acting Commissioner of the Court