Kulendran v De Silva

[2015] NSWLEC 1035

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kulendran & anor v De Silva & anor [2015] NSWLEC 1035
Hearing dates:	26 February 2015
Decision date:	26 February 2015
Jurisdiction:	Class 2
Before:	Durland AC
Decision:	The application is dismissed
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); future damage, future injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW) (2009)
Cases Cited:	Yang v Scerri [2007] NSWLEC 592 Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Siva and Subitha Kulendran (Applicants) Mohan and Kashmira De Silva (Respondents)
Representation:	Applicants: Mr and Mrs Kulendran (litigants in person) Respondents: Mr David Tyrrell (Solicitor)
File Number(s):	20983 of 2014

Judgment

1. An application has been made pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The application has been made by Mr and Mrs Kulendran, the owners of a property in the suburb of Beecroft.

2. Mr and Mrs Kulendran (the applicants) are seeking orders for the removal of a Callistemon salignus (White Bottlebrush) tree located on an adjacent property to the south.

3. The property where the tree is located is owned by Mr and Mrs De Silva (the respondents).

4. The tree is located adjacent to the common side boundary and some of the canopy overhangs the applicant’s property.

5. Mr and Mrs Kulendran are concerned that the tree has the potential to damage their property should large limbs fall from the overhanging canopy or should the tree the tree fail in its entirety. The applicants are particularly concerned about potential damage to the kitchen, first floor bedroom, pool, pool wall, gas heating and alfresco dining area.

6. The applicants are also concerned that injury may be caused to a person should limbs fall from the canopy or should the tree fail in its entirety.

7. Under section 10 (2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing or is likely in the near future to cause damage to the applicant’s property or is likely to cause injury to a person.

The Tree

8. The tree is a Callistemon salignus (White Bottlebrush) approximately eight metres in height with a five metre canopy spread. The tree has three main first order branches and the upper part of the tree has a slight lean to the north. The lowest branches have been removed to a height of approximately five metres.

9. The tree is located adjacent to the common side boundary in a garden bed situated between a concrete driveway and the boundary fence. Approximately 30% of the canopy overhangs the boundary into the applicant’s property.

10. The respondents have submitted a report prepared by Mr Ross Jackson of Jacksons Nature Works relating to the health and condition of the tree. Mr Jackson is a qualified Arborist and has described the tree as ‘stable with a sound branching structure with no visible defects’ and assessed the tree as having a remaining useful life expectancy of 30 – 40 years.

11. Mr Jackson expressed the opinion that he does not think that the tree is likely to cause damage to property or injury to a person in the near future.

Past and present damage

12. There is no contention that the tree has caused damage to the applicant’s property in the past.

13. The trunk of the tree is currently in contact with the top of the timber boundary fence and the applicants stated that they think this is due to the lean of the tree increasing over time.

14. The applicants submitted two images of the tree and the fence, one taken in 2011 and the other in 2012. It was established at the hearing that the purpose of submitting the images was to demonstrate that the distance between the tree trunk and the fence has reduced over time. It is not clear from the images how significantly the gap has changed in the time since 2011 although it does seem that the trunk has not always been in contact with the fence.

15. There was nothing evidenced or sighted that would indicate that the lean of the tree has increased over time however it may be that the trunk has increased in girth causing contact with the fence.

16. The damage to the timber fence is so minor that I am not convinced the jurisdiction of the Court has been enlivened however if I am wrong in that I have given consideration to the matters at section 12 of the Act.

17. Section 12 requires, amongst other things, matters such as the contribution of the tree to landscape, amenity, ecosystem and biodiversity are considered before determining an application.

18. After considering the matters at Section 12, I am not satisfied that the making of orders for an intervention with the tree on the basis of minor damage to the timber fence would be appropriate.

Future damage or injury

19. As previously stated Mr and Mrs Kulendran are concerned that the tree has the potential to damage their property or cause injury to a person should large limbs fall from the overhanging canopy or should the tree fail in its entirety.

20. With the expertise that I bring to the Court as a qualified and professional Arborist I note that there was nothing evidenced or sighted that indicates that limb failure or whole tree failure is likely to occur in the near future and therefore agree with Mr Jackson’s assessment of the tree (at 10) in relation to likely future damage or injury to a person,

21. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a ‘rule of thumb’, the appropriate timeframe for the ‘near future’ is a period of 12 months. In regards to injury, the Court considers the risk posed by the tree and circumstances of the site at the time of the hearing.

22. The Court requires that there is more than a theoretical possibility of future damage. In Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29, at [62] Craig J stated that “something more than a theoretical possibility is required in order to engage the power under the Trees Act”.

23. I am not satisfied that that the requirements under 10 (2) of the Act have been met in relation to future damage to property, or injury to a person, that may be caused by the tree and therefore no orders can be made in this regard.

Orders

On the basis of the foregoing, the Orders of the Court are:

1. The application is dismissed.

L Durland

Acting Commissioner of the Court

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Decision last updated: 04 March 2015