Jin v Swaminathan

[2024] NSWLEC 1106

Land and Environment Court

New South Wales

Medium Neutral Citation:

Jin v Swaminathan [2024] NSWLEC 1106

Hearing dates:

25 October 2023

Date of orders:

12 March 2024

Decision date:

12 March 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application is refused.

(2)   The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the respondents’ trees have caused damage – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 4, 7, 10, 12, Pt 2

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Hendry v Olsson [2010] NSWLEC 1302

Category:

Principal judgment

Parties:

Lijuan Jin (Applicant)
Ishwarya Swaminathan (Respondent)

Representation:

Counsel:
L Jin (Self-represented) (Applicant)
R Swaminathan (Agent) (Respondent)

File Number(s):

2023/253029

Publication restriction:

Nil

Judgment

Background

1. COMMISSIONER: Lijuan Jin (the applicant) lives at her Carlingford property. A timber paling fence runs along the common boundary dividing her property from the neighbouring property belonging to Ishwarya Swaminathan (the respondent). Several small trees grow on Ms Swaminathan’s property near the fence. Ms Jin claims that the trees have damaged parts of her property: a clothesline, a lattice screen, the timber fence, and a concrete path between her dwelling and the fence. She claims the trees made her path slippery, causing her to fall over and seriously injure herself. Ms Jin applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the trees to be removed, and for the respondent to repair or pay for repairs to her property.

2. The onsite hearing allowed the Court to inspect the trees and both properties. The applicant was self-represented, supported by her daughter. The respondent was represented by her father.

Framework for this decision

3. The key jurisdictional tests in these proceedings are found at s 10 of the Trees Act:

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

4. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application. The key issues in dispute are: whether the trees have caused damage; whether the trees should be removed; and whether the respondent should pay for repairs to the applicant’s property.

Reasonable effort to reach agreement

5. The applicant wrote to the respondent’s property agent in 2020 requesting some action be taken to prevent the trees causing damage. She attempted mediation through the Community Justice Centres in 2023. I am satisfied that the applicant made a reasonable effort to reach agreement with the respondent (s 10(1)(a) of the Trees Act) and gave the required notice of the application (s 10(1)b)).

The trees

6. Ms Jin’s application shows seven trees (T1–T7) in a diagram at question 2 in Form H (Exhibit A), but names only three trees (T1–T3) at question 3. With the benefit of the Court’s onsite view, the trees are (from the south):

• A paperbark (Melaleuca sp.) (T1)

• A tea tree (Leptospermum sp.) (T2)

• A photinia (Photinia sp.) (T3)

• 3 trees that have been reduced to stumps (T4–T6)

7. The trees are not in contact with the boundary fence. Trees T1–T3 have been pruned and are 4–6 metres tall.

Damage

The clothesline and lattice screen

8. Trees T1 and T2 are close to Ms Jin’s clothesline and a lattice screen attached to the fence. At the time of the hearing, the screen had been removed from the fence. The applicant submitted that the clothesline and lattice screen were damaged by the trees. She provided photographs to support her claim. The photographs might show tree branches near these elements of Ms Jin’s property, but they do not show damage caused by the trees. I observed the clothesline and lattice screen during the onsite hearing. They appeared old and worn, and not well attached to the fence or the ground. Their condition seemed to result from their age and their method of construction or attachment, more than from any physical force upon them. I cannot be satisfied that they have been damaged by the trees, so I am prevented by s 10(2)(a) of the Trees Act from making any orders on this element of the application.

The dividing fence

9. Ms Jin submitted that all trees have damaged the timber paling fence along the common boundary. Trees T3–T6 have been removed, or reduced to stumps, but that would not prevent the Court making orders if I find that they damaged the fence before being removed (s 4(4) of the Trees Act).

10. The fence’s condition reflects its age – its palings are weathered, some are loose or displaced. Its condition is not limited to sections near the respondent’s trees. It is possible that the tops of some palings near the trees are more weathered or worn than they might be otherwise, but not to the extent that they require replacement. I find that any damage caused to the fence by the trees is minor. The fence still appears functional.

11. If the jurisdictional tests at s 10 of the Trees Act are passed, before making any determination, the Court must consider matters at s 12 of the Trees Act. Accepting that the respondent’s trees have contributed in a small way to the fence’s condition, I find, firstly, that the fence’s condition is due principally to its age and general weathering. Secondly, I find that it appears functional, such that it could serve the purpose of a dividing fence for more years with only minor repairs. Should these neighbours agree at some point that the fence requires replacement, that is something they could deal with under an ordinary fencing agreement. The Court will not make any orders for the fence.

Concrete path

12. Ms Jin submitted that the path between her dwelling and the boundary fence has been damaged by the trees. Firstly, she submitted that tree roots have cracked the concrete. No evidence was provided to support this. Ms Swaminathan’s evidence includes two letters from arborists. Mr Swaminathan submitted that these were ‘expert opinion’. The first is a letter from Robert Knott, of Star Tree Services, and the second is a letter from Sydney City Tree Works. Neither author appears to have inspected the property. Both stated that they were sent photos and both asserted their opinions that the trees have not damaged the path. This information provided no assistance to the Court. At the onsite hearing, I observed minor cracks in the concrete path, but nothing unusual for its age. I also noted that some cracks aligned with junctions in Ms Jin’s stormwater drainage more than they aligned with trees. I cannot be satisfied that roots of the respondent’s trees have caused any damage to the path.

13. Ms Jin submitted that the trees caused her path to become slippery. She slipped and fell, seriously injuring herself. She provided extensive evidence of medical expenses.

14. If mould or moss or similar grew on her path, that may be a result of the conditions. The path is in a narrow area between Ms Jin’s dwelling and the boundary, shaded in part by her dwelling and partly by the trees. I reject this element of the application on two grounds. Firstly, I do not accept that mould or moss equates to damage. Secondly, if damage were attributed to the trees as a result of moss or mould growing on the path, I rely on the principle established in Barker v Kyriakides [2007] NSWLEC 292 at [20]:

“[20] It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.””

15. This principle was considered and effectively extended in Hendry v Olsson [2010] NSWLEC 1302, with the Court finding at [11]–[15]:

“[11] With respect to the deposition of seeds, leaves and other detritus from the trees located on the Olssons’ property onto the Hendrys’ property, the Court published a tree dispute principle in the case of Barker v Kyriakides [2007] NSWLEC 292 that says that, for those persons who have the environmental and aesthetic benefits of trees in urban areas, it is appropriate to expect and require that ordinary reasonable maintenance will be undertaken to deal with the deposition of fruit, nuts, berries, leaves and the like from such trees. We adopt and apply that principle here.

[12] Second, with respect to the suggestion that there is mould and slime and the like created as a consequence of the shading of the steps and under pergola’s paved area, we are satisfied that two matters are relevant to our consideration.

[13] First, we could not be satisfied, as a matter of fact that, assuming that such mould and slime were to be present [which was not obvious on the site inspection this morning], the total cause of such incidence was the trees on the Olssons’ property rather than a significant contribution being made by the shading by the pergola structure itself and its attendant shade cloth.

[14] Even if we were to conclude that the pergola and the shade cloth made no contribution (which we do not), we are satisfied that we should indicate that a proper extension of the tree dispute principle enunciated in Barker v Kyriakides is a supplementary principle that, for the same reasons of having the benefit, environmental and aesthetic, of trees in an urban area the responsibility for ordinary maintenance of a property should extend to the cleaning of such surfaces as paving and paths and the like.

[15] Therefore, taking the applicants’ case at is highest and assuming that the jurisdictional test is satisfied with respect to the application pursuant to Part 2, we would, for the reasons we have enunciated, as a matter of discretion, dismiss that application.”

16. I find that the respondent’s trees did not damage the applicant’s path. I find that the slippery surface that Ms Jin considers to be damage caused by the trees could have been prevented by cleaning the path. No orders will be made on this element of the application.

Orders

17. The Court orders:

1. The application is refused.

2. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 12 March 2024