Krivoshev v Mahadevan

[2009] NSWLEC 1277

Land and Environment Court

of New South Wales

CITATION:

Krivoshev v Mahadevan [2009] NSWLEC 1277
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Paul and Elena Krivoshev

RESPONDENT
Lalitha and Muthiah Mahadevan

FILE NUMBER(S):

20286 of 2009

CORAM:

Murrell C - Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage, injury, compensation refused, breach of Tree Preservation Order, sewer, swimming pool, berry stains, remedial pruning, backyard trees and character of garden suburbs, trees overhanging boundary.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292
Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Black v Johnson (No 2) [2007] NSWLEC 513

DATES OF HEARING:

28 July 2009

EX TEMPORE JUDGMENT DATE:

28 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
Paul and Elena Krivoshev (litigants in person)

RESPONDENT
Lalitha and Muthiah Mahadevan (litigants in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C and Thyer AC

28 July 2009

20286 of 2009 Paul and Elena Krivoshev v Lalitha and Muthiah Mahadevan

JUDGMENT

1 COMMISSIONERS: Mr and Mrs Krivoshev are the owners of 19 Nichol Parade Strathfield. They make an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify and prevent property damage, seeking compensation for property damage, and to prevent risk of injury to people from a Lilly Pilly tree (the tree) growing on adjoining land to the west. They seek orders for:

• Immediate removal of the tree including stump and roots at the tree owners’ expense;
• Reimbursement for costs incurred so far – pool, sewer damage, arborist (to trim tree), and Council fees, totalling $3,186;
• The tree owners to pay for and correct any damage the tree may cause by its removal.

2 Mr and Mrs Krivoshev bought their home in 2003. They extended the house 3m closer to the tree in 2006. They also replaced the sewer line with PVC to near the vent close to the southern boundary, filled in the swimming pool in the backyard and landscaped the backyard. They applied to Strathfield Council for removal of the tree in 2003 and 2005 with the written consent of the respondent. Both applications were refused but in response to the 2005 application, a permit was issued to crown lift and thin the eastern side of the tree by 10-15%. They had the tree lopped back to the boundary in 2006. We understand that the lopping was not in accordance with the Council Tree Preservation Order. Our observation is that at least 30% of the crown was removed. They have made no further application to Council for pruning or removal.

3 Mr and Mrs Mahadevan are the owners of 4 Parsons Avenue Strathfield (the property), the adjoining land to the west where the tree is growing. They purchased the property in 1989 and have lived there since that time. They say that the tree was growing in the backyard when they purchased, and that it is more than 50 years old. They signed the applications made by the Krivoshevs in 2003 and 2005 for removal of the tree. The Mahadevan’s conference is to keep the tree because of the green amenity it provides to their property and area. However they have no objection to the tree being removed if its roots are an issue. They are both retirees and say that the cost of removing the tree would be beyond their means. The neighbours to their south obtained consent from Council to prune three minor branches in 2007. The Mahadevans obtained Council consent in May 2009 to thin the crown of the tree by maximum of 10% and to remove dead wood. They have not carried out that work, preferring to await the outcome of this Court hearing.

4 The parties agree that the metal dividing fence is on the common boundary. We observed that the trunk of the tree is close to but entirely on the Mahadevans’ side of the dividing fence. On that basis, we find that the tree is situated on the property, meeting s 4(3) and s 7 of the Act. Also, we find that the tree is a “tree” within the meaning of that term in s 3(1) of the Act. As a consequence there is an application that the Court may determine.

5 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

Has the tree caused damage to the applicant's property on the land?
Is the tree now causing damage to the applicant's property on the land?
Is the tree likely in the near future to cause damage to the applicant's property on the land?
Is the tree likely to cause injury to any person?

6 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

7 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

The tree

8 The tree is a Lilly Pilly (Syzigium paniculatum), about 12 m tall with trunk diameter of about 0.9 m and crown radius of about 7 m to the north, west and south, but no crown on the eastern side due to lopping by the Krivoshevs. The tree appears to be generally healthy, with a little dieback of some small branches in the top of the crown, and bushy growth from epicormic response to lopping on the eastern side of the tree. We did not observe any included bark or other signs of weak branch connection, but some long branches on the eastern side, exposed by the lopping, no longer have protection and support from surrounding branches. The lower trunk and base appear to be sound with no root plate lift or other signs of poor stability in the ground.

Damage:
Dividing fence

9 The Krivoshevs claim that the dividing fence has been lifted by the tree. The Mahadevans however, claim that they built the fence in 2000, and though the panel is lifted, there is little change since 2003. We observed that the metal fence panel beside the tree appears to be slightly lifted, and on that basis are satisfied that the tree has damaged the fence, thus meeting the first test in s 10(2)(a) of the Act. However, we find that the damage is very minor, and as a matter of discretion we will not order removal or any interference with the tree on the basis of that minor damage. Additionally, we note that the Mahadevans stated at the hearing that they are prepared to pay for the cost of any damage caused to the fence by the tree.

Berry stains

10 The Krivoshevs claim that berries from the tree stain their paving and side of their house, and that some of the stains cannot be removed. We understand that the berries fall for about one month each year. We noted photographs in the Krivoshevs’ application showing numerous stains on paving, furniture and walls. However, the Mahadevans claim that such staining also occurs on their property and can be washed off. On inspection of the Krivoshevs’ property we did not observe obvious staining. While the berries may cause damage by temporary staining (thereby meeting the first and third tests in s 10(2)(a) of the Act), we observe that the stains can be cleaned, and consider such cleaning to be a home and yard maintenance issue.

11 The Court decided in Barker v Kyriakides [2007] NSWLEC 292, that it was not appropriate to order the removal of the tree or significant interference with the tree on the basis of its dropping of leaves, twigs and the like on the applicant’s property. As discussed in Barker v Kyriakides, for people who live in treed urban environments there is some necessary degree of assumption of housekeeping required both by the owner of the tree and those on adjacent properties in order to appreciate and retain the benefits of having such a treed urban environment. Similarly, as a matter of discretion, we will not order removal or any interference with the tree on the basis of its fallen berries and the stains of those berries.

12 The Krivoshevs also claim that animals that eat the berries stain the yard with their excrement. Preston CJ discussed damage or injury directly caused by animals in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 [para 189]. His Honour states:

… the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on the adjoining land, uses the tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant’s property …. .
On that basis we find that staining from animal and bird excrement is not damage by the tree, and thus does not meet the tests in s 10(2) of the Act.

Flower debris

13 The Krivoshevs claim that fine needles cover the entire garden and roof of their house, and form clumps in the roof guttering causing overflow. We understand the “needles” to be stamens from flowers on the tree, and that these fall for about a month each year. We also understand that the guttering most affected is on the extension that was built closer to the tree in 2006. We have not been advised of any actual damage caused by the flower debris, and on that basis find that none of the tests in s 10(2)(a) of the Act are met in this regard. However, even if some damage had occurred, for the reasons discussed in Barker v Kyriakides we would as a matter of discretion, not order removal or any interference with the tree. Further, in relation to any blockage of the gutter on the extension of the house, we have considered the Tree Dispute Principle in Black v Johnson (No 2) [2007] NSWLEC 513 and find that in response to the existence of the tree, the Krivoshevs could and should have built the guttering to cope with tree debris.

Sewer

14 The Krivoshevs claim that tree roots have blocked their sewer system at least four times. They advise that the sewer has been replaced in PVC since 2006 to somewhere near the boundary trap sewer vent which is close to their southern boundary. We understand that the blockages have occurred beyond the new PVC piping, at a junction with or in old earthenware pipes. The Krivoshevs have provided evidence of one clearing of the sewer by a plumber in 2008. That invoice states:

Attended call to find main sewer blocked at rear boundary trap
Jet & camera used to clear root mass found joint to main with root ball
(Loose joint)

15 On the evidence provided, we are not satisfied that all of the sewer blockages have occurred in the Krivoshevs’ sewer rather than in the Sydney Water sewer main. Blockage to the main would not be damage to the Krivoshevs’ property. Further, we understand from the plumbers invoice, that the sewer pipe is faulty, having a loose joint. On that basis, even if the root blockage was to the Krivoshevs’ property, we would find that the Krivoshevs should repair their sewer pipes, and as a matter of discretion, we would not order removal or any interference with the tree.

Pool and pool pump

16 The Krivoshevs claim that debris from the tree caused their swimming pool pump to seize, with replacement cost stated as $1,000 and elsewhere as $800. We note that the Swimart Pool & Spa Services invoice to supply and fit a Hydrostorm 100 pump is for a total of $800 including GST, but provides no evidence that the pump was damaged by debris from the tree. That invoice is undated but has a hand written note “Charged to EK’s Visa 2/1/03”.

17 The Mahadevans claim that the previous owners of the Krivoshevs’ property maintained the pool and kept the pool covered, thereby avoiding damage from the tree. We note that the Swimart pool maintenance invoice dated 8/7/03 includes the comment:

Pump basket was full of leaves again, please check often to avoid damage to pump.
We also note that the Swimart pool maintenance invoice dated 31/10/03 includes the comment:
There was a huge amount of dirt on bottom, maybe from building site next door.
Further, we note that the Krivoshevs no longer have a pool, it being filled in as part of renovations and landscaping post 2006.

18 On the evidence, we are not satisfied that the pump for which an invoice has been provided, was damaged by the tree during the Krivoshevs’ ownership of their property. Nor are we satisfied that the tree damaged the pool in any manner. On that basis, none of the tests in s 10(2)(a) of the Act are met with regard to the pool and pool pump. Further, even if the tree had caused damage, as a matter of discretion we would not order removal or any interference with the tree. Furthermore once again this would appear to be a lack of maintenance.

Falling branches

19 The Krivoshevs claim that five branches fell from the tree into their property during April 2009 breaking the tops of at least two plants. We find on that basis that falling branches have caused damage, and from observation of the tree we find that further branches are likely to fall and cause damage in the near future, meeting the first and third tests in s 10(2)(a) of the Act. However, we note that little damage was caused, and from observation of the Krivoshevs’ backyard, any future branch falls are unlikely to cause serious damage. On that basis, as a matter of discretion we would not order removal or any interference with the tree.

Injury Falling branches

20 The Krivoshevs claim that the five branches that fell during April 2009 were all live branches, one was about 5 m long and about 70 mm thick, and the others were about 1 m long. They claim that branches that fall in the future are likely to cause injury to their family or friends using the backyard. The Mahadevans claim that the branches fell in windy rainy conditions, and on that basis, people are unlikely to be in the yard so injury is not likely.

21 We find that looping of the tree by the Krivoshevs is the cause of recent live branch failures, and that further branch failure is likely.

22 We observed that there are some long branches with heavy end foliage on the eastern side of the tree. We observed that some of these are twisted out of their normal position indicating weakness, and that others are very exposed to wind since the Krivoshevs lopped the tree in 2006. None of the branches are very large, and the only reported episode of failure is during one month in the almost 4 years since that lopping. We do not find that the risk of injury is high, but we find there is sufficient likelihood of injury to satisfy the test in s 10(2)(b) of the Act. On that basis, we will order remedial pruning of the tree.

Compensation

23 The Krivoshevs seek compensation for costs incurred as set out in their application. We refuse their claim for compensation on each point and in its entirety for the following reasons:

• The Council fees of $25 and $30 for applications to remove the tree are normal costs associated with property maintenance in this instance;
• The evidence provided is that the invoice for $800 for pool pump replacement was paid on 2 January 2003, more than 6 years prior to the lodgement of this application and thus beyond the general six-year limit under the Limitation Act 1969 [s 14(1)(d)]. If the claim was not excluded by statute, we would refuse it on the basis that no evidence is provided that the tree caused damage to the replaced pump, and further, the pump was replaced before the Krivoshevs gave notice of the problem to the Mahadevans;
• The $551 for pool maintenance costs is for general pool maintenance and cleaning dirt from the pool. We find this claim is not for damage, and compensation is not appropriate;
• No invoices or receipts are provided for the three plumbers costs claimed to be $250 each;
• As explained under Damage above, we are not satisfied that the plumbers invoice dated 10 March 2008 for $330 is for work to the Krivoshevs’ property. Further, if the work was to the Krivoshevs’ property, we find the work was required due to faulty pipes that should be repaired to prevent tree root entry, at the Krivoshevs’ cost;
• With regard to the claim for $700 to trim the tree in 2006, no invoice or receipt has been provided. Also, we understand that much of the lopping was not in accordance with the Council Tree Preservation Order. Further, we find that any part of the lopping that may have been allowable under the Council Tree Preservation Order would have been normal property maintenance and should be paid for by the Krivoshevs;
• In relation to the cost of application to the Land and Environment Court and associated cost of colour copies, Commissioners do not have the power to order payment of legal costs, costs of expert reports, application fees to the Court and other expenses (including personal expenses). Where a Commissioner has heard and determined a tree application, any party seeking an order for costs of the proceedings must apply for costs by notice of motion filed within 28 days of the final orders in the proceedings;
• We are not prepared to order compensation for the cost of sandstone cleaning because that cost has not been quantified and we consider to be prt of general household maintenance.

Considerations

24 The tree is visible from surrounding streets, and though it is not the largest tree in the local area, it contributes to the garden character of the area. It also provides partial screening between the Mahadevans’ and the Krivoshevs’ homes.

25 The tree is located very close to the back fence of the Mahadevans’ property and in the past had substantial overhang of the Krivoshevs’ backyard. This type of situation is very common for both self seeded and planted trees in suburban gardens.

26 We recognise that some disputes between neighbours could be avoided if trees were planted well clear of boundaries, and we would generally recommend such placement. However, historically there are many well established trees in garden suburbs such as this part of Strathfield and in environments that support canopy trees for all their benefits, trees do not and should not be expected to strictly respect property boundaries. Mutual sharing of space for canopy trees that overhang boundaries is necessary so those trees can continue to contribute to the character of the area. If all trees that overhang boundaries were lopped back to the boundary line, many would die or become dangerous or unstable due to the damage, and our suburbs would lose much of the attractiveness and benefit provided by those trees. We consider properties in such garden suburbs should generally contribute to the tree canopy and garden character of the area by the growing of trees or allowing part of the canopy of neighbours trees to mutually share the air space to the greening and sustainability of urban growth. In this regard, we observed that the Krivoshevs do not have any canopy trees growing in their rear yard.

27 The tree was growing on the Mahadevans’ property and was a substantial size when they purchased their property 20 years ago. They have carried out some pruning over the years with Council consent, and have tried to accommodate pruning requests from their neighbours. The Mahadevans extended their house closer to the tree in about 2003, without damage to the tree and without creating maintenance problems for that extension in relation to the tree.

28 The tree overhung the Krivoshevs’ backyard when they purchased their property about six years ago. Based on the remaining crown of the tree, we estimate that the overhang was 6 – 7 m. Such overhang may have been acceptable to a different purchaser, and highly valued by a purchaser who saw the opportunity to create an attractive garden nook under the borrowed canopy. However, the Krivoshevs purchased the property and lopped the tree back to the boundary.

29 We find that lopping of the tree by the Krivoshevs is the cause of recent live branch failures, and that further branch failure is likely. That lopping has exposed branches that were structurally adequate when they were within the crown of the tree but are weak in relation to the new conditions of exposure to wind and lack of support from other branches. The lopping has also increased wind flow within the crown; drying remaining branches in the crown, has caused epicormic regrowth, and has reduced the visual attractiveness of the tree.

30 We find because of inappropriate lopping previously as noted above that the tree should have remedial pruning to prevent risk of injury from falling branches, to promote suitable regrowth, to reduce exposure of elongated and high branches and to improve the visual attractiveness of the tree.

31 We also find that the eastern side of the crown of the tree should be re-established, and managed to reasonably match the remainder of the crown in size and form, except that the maximum overhang at any point across the Krivoshevs’ property may be limited to 3 m.

32 Whilst we find that the Krivoshevs are responsible for the immediate need for remedial pruning and on that basis should pay the cost for such pruning at the same time, we find that some reduction, thinning and shaping of the crown would be in the interests of both parties, and would normally be the responsibility of the owner of the tree over their own property. Due to the shared responsibility in this case, we will order pruning work to be carried out, with the cost shared equally by the parties.

33 In order to minimise any damage to the tree from the further pruning, we will order that the above pruning not take place in summer when scorching and drying of the branches may occur, and that the pruning be supervised by and carried out by qualified arborists. Also, to protect the tree we will order that the Krivoshevs not prune any part of the tree before 30 June 2014 except for formative pruning and then only in accordance with valid written consent of Strathfield Council.

Orders

34 Those parts of the application seeking removal of the tree and for compensation are refused, but the application is upheld in part, and the Court makes the following Orders:

1. These orders apply to 19 Nichol Parade Strathfield and 4 Parsons Avenue Strathfield;
2. The Lilly Pilly tree growing in the backyard of 4 Parsons Avenue Strathfield shall be pruned as specified in 5., 6., 7. and 8. below by 30 November 2009;
3. The pruning work shall be initiated and progressed by the Mahadevans who shall obtain three quotations for the work from suitably qualified contractors, and provide copies of those quotations to the Krivoshevs by 30 September 2009. The cost of the work according to the lowest quotation shall be met by the Mahadevans and the Krivoshevs each paying half. The Mahadevans may proceed with a more expensive quotation if they also pay the full difference in that cost above the lowest quotation. The contractor(s) shall bill the parties separately for their part of the cost, and each party shall be separately responsible for their own payment;
4. The contractor(s) shall carry out the work in accordance with these orders and the Australian Standard AS 4373-2007 Pruning of Amenity Trees , under direction from the Mahadevans, and shall not follow any directions from the Krivoshevs in relation to pruning of the tree;
5. The tree shall be remedial (restorative) pruned to remove the likelihood of branch failure which has resulted from past lopping of the eastern side of the tree, and to promote regular crown development extending about 3 m east of the common boundary. No branches larger than 100 mm diameter shall be removed as part of this work;
6. The crown of the tree shall be remedial (restorative) pruned to “round off” the top and sides of the crown that have been exposed by past lopping of the eastern side of the tree. This may include crown reduction of up to 4 m at the top and 2 m at the sides of the tree but no branches larger than 100 mm diameter shall be pruned as part of this work;
7. Dead wood larger than 20 mm shall be removed from the whole of the crown;
8. The western side of the tree may further be crown thinned by up to 30% to reduce the density of the crown, at the Mahadevans’ direction. No branches larger than 150 mm shall be removed as part of this work;
9. The work described in 5., 6., 7. and 8. above shall be carried out under supervision of an AQF Level 5 arborist by an arborist with minimum AQF Level 3 qualifications and suitable insurances, in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998);
10. The work shall take place at reasonable times, and on reasonable notice to the Krivoshevs, and the Krivoshevs shall grant access over their property for the necessary works;
11. At their own cost, until 30 June 2014, the Krivoshevs shall promote and re-establish the eastern side of the crown of the tree and manage it to reasonably match the remainder of the crown in size and form, except that the maximum overhang across their property at any point may be limited to 3 m;
12. The Krivoshevs shall not damage any part of the tree before 30 June 2014 except in accordance with valid written consent of Strathfield Council;
13. These Orders do not prohibit Strathfield Council granting consent for removal of the tree at any time, nor the tree being removed in accordance with such valid written consent of Strathfield Council.

Peter Thyer
Acting Commissioner of the Court

_______________________
Jan Murrell
Commissioner of the Court

17/09/2009 - Order 12 - Paragraph(s) The year 2019 changed to 2014