Hurditch v Staines

[2008] NSWLEC 1351

Land and Environment Court

of New South Wales

CITATION:

Hurditch v Staines [2008] NSWLEC 1351

PARTIES:

APPLICANT
Ray and Rhonda Hurditch

RESPONDENT
Allen and Loretta Staines

FILE NUMBER(S):

20660 of 2008

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) :- Removal or pruning of trees, injury to persons

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Tuft v Piddington [2008] NSWLEC 1249 in [11]

DATES OF HEARING:

22/08/2008

EX TEMPORE JUDGMENT DATE:

22 August 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr and Mrs Hurditch, litigants in person

RESPONDENT
Mr and Mrs Staines, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

22 August 2008

20660 of 2008 Ray and Rhonda Hurditch v Allen and Loretta Staines

JUDGMENT

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

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Hurditch of 36 Rosemont Avenue Kelso concerning trees located on a property owned by Mr and Mrs Staines of 16 Wolery Place Kelso.

2 The trees are two Wattles (a Cootamundra Wattle and a Red-stemmed Wattle) and a Casuarina. They are located in the north-western corner of the respondents’ back yard in close proximity to the boundary fence with the applicants. Due to the elevated nature of the respondents’ property with respect to that of the applicants’, the trees appear taller from the applicants’ property.

3 The applicants are seeking the pruning of the trees to the boundary and their on-going restriction to this point so that the trees do not occupy any of their air-space. They would also be happy if the trees were removed.

4 The application is made with respect to the injury the applicants allege the trees are causing; specifically ‘recurrent allergic rhinitis’ (commonly know as hay fever) and conjunctivitis suffered by their daughter and also allergic reactions suffered by Mr Hurditch. They contend that these symptoms are caused by pollen from the wattles in the respondents’ garden.

5 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the trees have caused, are causing, or could in the near future, cause damage to property or injury to persons. The issue here is one of injury.

6 In Tuft v Piddington [2008] NSWLEC 1249 in [11], it was accepted that injury encompasses allergic reactions. Therefore the Court has jurisdiction to hear this matter.

7 However, although allergic reactions are enabled to be considered, it is the responsibility of the applicants to provide specific evidence from a suitably qualified specialist medical practitioner that the allergic reactions alleged by the applicants are specifically attributable to the plant species in question. That specialist would probably require qualifications that would allow them membership of a professional association such as the Australasian Society of Clinical Immunology and Allergy.

8 To that end, the standard directions that are sent to all parties in these matters as a result of the preliminary hearing, included a ‘Supplementary Direction’ relating to “cause of injury” in s 10(2)(b) of the Act. Specifically these directions, dated 25 July, were:

1. Further to Direction (5) of the principal directions in this matter, the applicant is to provide, by the close of business on 8 August, any statement of medical or arboricultural evidence and any supporting or arboricultural peer reviewed literature relied upon in support of a claim that a tree which is subject of the application is a likely cause of injury to any person;
2. Any expert giving written or oral evidence concerning matters contained in (1) above is to be advised of; acknowledge; and agree to be bound by (a) to (c) of Direction 14 [relating to expert witnesses] of the principal directions made in this matter.

9 The applicants have provided some evidence from a General Practitioner relating to their daughter’s condition but there was no evidence in that medical certificate as to any specific testing, just an examination. Dr Droulers states ‘Her [Ms Hurditch’s] symptoms are attributable to numerous allergens but specifically she reacts to grasses and wattle.’

10 A letter from Dr Graham Pulley, of unknown medical specialisation, states that the tests carried out on Mr Hurditch indicate that he is not allergic to wattle. He goes on to say that ‘This however, does not rule out an irritative reaction to wattle pollen and scent, the effect of which can be similar to an allergic reaction.’ The results of a chest x-ray, also submitted by the applicants, show no abnormalities in Mr Hurdtich’s heart or lungs. There is no indication in any of the material submitted or discussed at the on-site hearing, that Mr Hurditch was ever tested for any other allergen.

11 Dr Droulers’ certificate mentioned grasses. As I discussed with the parties during the hearing, the website of the Australasian Society of Clinical Immunology and Allergy (ASCIA) and a paper presented at the 2005 annual conference of the Australian Chapter of the International Society of Arboriculture by Dr Sheryl van Nunen, Head of Department of Allergy, Royal North Shore Hospital, both support the position that some of the most common allergens are grasses, weeds and some conifers and deciduous trees. These sources also disclose that allergic reactions to wattles are less common than people think. A common allergen producing plant is Rye Grass. This is found in abundance in the district both as a pasture grass and as a dominant component of domestic lawns. Both the applicants’ and the respondents’ lawns contain this and other grasses.

12 Turning to other matters that must be considered under s 12 of the Act, the following clauses apply:

(a) The trees are wholly located on the respondents’ property.
(e) The trees make a contribution to the scenic value of the respondents’ land. The trees in question were planted about 11 years ago when the Staines built their house. The garden was specifically designed to be viewed from the main bedroom and living areas to provide amenity to Mr Staines who is often confined to bed or his wheelchair. As a result of this, the respondents do not wish to remove the trees.
(f) The trees make a minor contribution to public amenity as they can be seen from the nearby streets as they protrude above the roof- lines.
(i)(i) Anything other than the trees that may have contributed to the alleged injury. In this case, the many other sources of pollen such as grasses, weeds and other vegetation and the exposed nature of the site making it susceptible to wind-blown pollen from these many sources. The applicant has tried to abate the extent of the pollen coming into his property by pruning the trees back to the fence line.
(j) Any other matters. The respondents planted the trees at least eleven years ago. The applicants moved in six years ago. The trees would have been five years old and would have been visible above the fence line. However, no evidence or information was tendered as to whether the applicants knew of their alleged allergic reactions.

13 In Tuft v Piddington, the applicant was able to produce specialist advice of a specific allergy to the tree species in that matter. Specific evidence has not been produced to prove an allergy to wattle, only evidence to state that the applicant is not allergic to wattle. Another common and significant allergen, Rye Grass, (as earlier noted) is present on both properties and many other plants capable of producing allergic reactions are found throughout the nearby rural area. Applicants in these matters have the responsibility to prove their case on the balance of probabilities.

14. Therefore in the absence of this evidence, the orders of the Court are that the application is dismissed.