Jantti v Cormie

[2008] NSWLEC 1290

Land and Environment Court

of New South Wales

CITATION:	Jantti v Cormie [2008] NSWLEC 1290
PARTIES:	APPLICANTS Eila & Toivo Jantti RESPONDENT Lola Cormie
FILE NUMBER(S):	20265 of 2008
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Jurisdiction - Trees (Neighbours) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Robson v Leischke (2008) NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Tuft v Piddington [2008] NSWLEC 1249 Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	1 July 2008
EX TEMPORE JUDGMENT DATE:	1 July 2008
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

1 July 2008

08/20265 Eila & Toivo Jantti v Lola Cormie

JUDGMENT

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

1 COMMISSIONERS: On the downhill side of 231 Veron Road at Umina Beach, a large Lilli Pilly tree is growing adjacent to the property’s brick retaining wall (and in the vicinity of an angle of the wall). The Janttis are the owners of the uphill property. Ms Cormie is the owner of the property upon which the tree is growing.

2 The Lilli Pilly tree is some 12 to 15 m in height with a canopy spread of some 6 to 8 m. In addition, on the property where the Lilli Pilly tree has been growing for many years, Ms Cormie has also planted three new trees (with a maximum height of about 1.2 m and maximum trunk diameter of about 2.5 cm) along the line of a rock shelf which runs, in broad terms, parallel to the brick retaining wall.

3 The Janttis seek orders for removal of all four trees. Ms Cormie opposes the making of all four orders sought. The basis upon which the Janttis seek the orders, as outlined in their original application, is because of what they consider to be the likely risk of damage to their retaining wall and their stormwater drainage and sewer pipes.

4 It is also clear, from a copy of a letter dated 5 February 2008 sent from the Janttis to Ms Cormie, that there are two other matters of concern to them relating the mature Lilli Pilly tree. The first of these is the tree does not permit sunlight into their house in winter. It is clear their house, having an aspect to the north looking into the foliage of the tree that this is factually correct. The second additional basis raised in the letter is the falling of pollen from this tree during summer months.

5 We have carefully inspected the trees and the retaining wall from the downhill side, on Ms Cormie’s property. The Janttis say that there is no presently visible damage to the retaining wall on their side of the boundary.

6 We are satisfied, from the survey provided by Ms Cormie, that the trees are located on her property and that the boundary wall, although across the boundary to the trifling extent of 1 cm in one corner, is on the Janttis’ side of the boundary. As a consequence, we are satisfied that the trees and the brick retaining wall meet the necessary prerequisites under the Trees (Disputes Between Neighbours) Act 2006 for the Court to have jurisdiction to consider this application.

7 That we have jurisdiction is correct – save with respect to one minor aspect of the application concerning the small south-eastern one of the three new trees. This tree is also in the vicinity of the adjacent property at 229 Veron Road – through which the Janttis’ sewer and stormwater pipes run. The Janttis are concerned that this tree might cause future damage to their stormwater and sewerage pipes.

8 Even if we were minded so to conclude (and we are not), we would not have any jurisdiction to deal with that possible future damage because it is clear that a combination of s 7 and s 10(2)(a) of the Act only permits us to consider likely future damage to an applicant’s property which is located on that applicant’s land (see Preston CJ in Robson v Leischke (2008) NSWLEC 152 at paras 162 to 164). These sections of the Janttis’ stormwater and sewer pipes are not located on the Janttis’ land and therefore we have no jurisdiction with respect to any damage which might arise in the future with respect to them.

9 Having carefully examined each of the four trees, it is easiest to deal, in the first instance, with three small trees together.

10 There is no suggestion that any of these trees, having been recently planted, has caused or is currently causing damage to the Janttis’ property nor are they any risk of injury to any person.

11 The relevant test under section 10(2) of the Act which therefore needs to be considered is whether or not they are a likely in the near future to damage the Janttis’ property.

12 In Yang v Scerri [2007] NSWLEC 592, the Court adopted a rule of thumb as to what might constitute the near future for the purposes of this test. In that case the Court held that a period of 12 months from the date of making any orders was an appropriate time under those factual circumstances. Although we are not required to follow Yang v Scerri, having inspected the retaining and these four trees, we are satisfied that this is an appropriate test for us to adopt in the circumstances.

13 There is, we are satisfied absolutely no likelihood whatsoever that any of these three small trees would cause any damage to the Janttis’ property in the next 12 months. We therefore refuse this element of the application.

14 We now turn to the question of the mature Lilli Pilly. First, we observe that, at the time of introduction of this legislation, the Attorney-General made it expressly clear that complaints concerning interruption of access to sunlight or interruption of views were not being brought within the jurisdiction of the Court under this legislation. The Janttis’ complaint about interruption of sunlight to their property is therefore something which we are unable to consider as part of these proceedings.

15 We carefully examined the retaining wall. There is no sign whatsoever of any cracking, lifting, bowing or bulging or any other alteration to the originally constructed nature of the wall from Ms Cormie’s side of the boundary. The Janttis do not say that there is presently damage visible to the retaining wall on Ms Cormie’s side of the boundary. As noted at [4], the Janttis say that there is no presently visible damage to the retaining wall on their side of the boundary.

16 There is nothing that would cause us to conclude that this tree is likely in the near future to cause damage to their retaining wall.

17 As a consequence, with respect of the third of the tests under section 10(2)(a) of the Act, there is no basis to order any interference with or removal of this tree.

18 The final complaint the Janttis raised concerns pollen falling on their property. They assert, in their letter, that the pollen impacts on the asthma of one of the persons resident on their property. This raises the test in s 10(2)(b) of the Act of whether the tree is likely to cause injury to any person. Although there is no definition of injury contained in s 3 of the Act, the Court has held asthma would fall within the scope of an injury (see Tuft v Piddington [2008] NSWLEC 1249).

19 For such asthma to warrant any possible consideration of interference with or removal of the tree, appropriate medical evidence would be required. However, the Janttis have provided no medical evidence about this. Furthermore, consideration of other matters under s 12 of the Act would be required on the question of exercising the Court's discretion if they had done so.

20 Therefore, there is no appropriate basis why we should consider that claim as a basis for interfering with or removing this tree.

21 The final matter is the question of the deposition of pollen when tested on the issue of property damage (s 10(2)(a)). In Robson v Leischke at para 171, Preston CJ considered the question of minor deposition of detritus from trees. He discussed the requirement for actual damage to be demonstrated before the Court's jurisdiction was enlivened. We have been given no evidence of the pollen causing actual damage to the applicants’ property. Therefore, on that basis, the pollen deposition provides no basis for interference with or removal of this tree.

22 Even if this were not the position, in Barker v Kyriakides [2007] NSWLEC 292, the Court published a Tree Dispute Principle on the question of whether or not the Court’s discretion should be exercised against an urban tree dropping leaves and the like. The Principle states that it is the responsibility of people in urban environments who enjoy the environmental and aesthetic benefit of trees in their neighbourhood to undertake ordinary prudent maintenance to their property to deal with the deposition of fruit, twigs, leaves, pollen and the like deposited by such trees. As a consequence, if we are wrong about damage, we would, as a matter of discretion, not be prepared to order any interference with or removal of the Lilli Pilly tree on the basis of the Tree Dispute Principle discussed in Barker.

23 The result of all of the foregoing, therefore, is that the application is dismissed.

Tim Moore Judy Fakes

Commissioner of the Court Acting Commissioner of the Court