Lazarus v Le

[2010] NSWLEC 1118

Land and Environment Court

of New South Wales

CITATION:

Lazarus v Le [2010] NSWLEC 1118

PARTIES:

APPLICANTS
Phllip Lazarus
Francine Lazarus

RESPONDENT
Alan Le

FILE NUMBER(S):

20073 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Risk of injury
Damage to property
Compensation
Leaf and fruit fall
Application refused

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

18 May 2010

 
DATE OF JUDGMENT: 

18 May 2010

EX TEMPORE JUDGMENT DATE:

18 May 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Huggett (Solicitor)
SOLICITORS
Abrahams & Associates Lawyers

RESPONDENT
Mr G Newport
SOLICITORS
Law & Planning

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

18 May 2010

20073 of 2010 Lazarus v Le

JUDGMENT

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

1 COMMISSIONER

: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by the owners of a ground floor unit in Carlotta Street Double Bay against the owner of a tree growing in an adjoining property.

2 The applicants were represented by Mr Huggett, solicitor, and the respondent by Mr Newport, barrister, instructed by Mr Long, solicitor. Also in attendance were Mr Ford, arborist for the respondent and Mr Gray, Tree Management Officer for Woollahra City Council.

3 The applicants are seeking a number of orders pertaining to the pruning of the tree. These are the raising (by pruning) of overhanging branches by no more than two metres and the pruning of minor branches (no more than 50mm in diameter) that grow towards their roofline. The applicants seek that they be authorised to carry out these works as and when they deem them necessary. They ask that the Court order Woollahra Council to grant authority to the applicants to carry out the works and also that the applicants’ agents be authorised to enter the respondent’s property to carry out these works.

4 The applicants seek these orders as they contend that fallen leaves and fruit from the tree have caused damage to their property and pose a risk of injury to persons.

5 The applicants are also seeking compensation of a sum of $9935.50. This sum is comprised of $685.50 for the clearing of the suction line of the pool pump and the replacement of the pool pump and motor and $440 for work on the pool’s electrical wiring. The remainder of the claim is for estimates of costs for cleaning the pool, outdoor areas and paving from September 2006 to October 2009.

6 The tree is a mature Liquidambar growing adjacent to the rear side boundary fence between the applicants’ and respondent’s properties. It appears to be a healthy specimen with no obvious structural defects. A report prepared by Mr Ford in March 2010 and tendered in evidence by the respondent, supports this observation. A portion of the canopy overhangs the applicants’ pool and paved outdoor terrace.

7 The tree appears to have had lower limbs removed in the past. It is surmised by Mr Ford that these may have been removed to facilitate the construction of the applicants’ property. There was evidence of some more recent pruning of a smaller branch higher in the canopy.

8 Under s 10(2), 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 applicants’ property, or is likely to cause injury to any person.

9 The damage said to have been caused by fallen leaves and fruit from the tree is the staining of pavement and balcony tiles and damage to the pool’s filtering system.

10 With respect to the staining of the tiles, this was not drawn to the Court’s attention at the on site hearing however, during the hearing, I observed that there was no evidence of staining. It is assumed from the application that the lack of staining is due to applicants engaging cleaners to clean the pavement and balcony.

11 With respect to the blocking of the pool filter, the applicants stated, when asked, that the 2009 blockage, that necessitated the repair works subject to the compensation claim, was the first problem they had had with the pool since they purchased the newly constructed apartment some three years ago.

12 Then pool service invoice states that the suction line was cleared of “very large berries”. These are assumed to be the fruit of the Liquidambar however this is the only reference to the tree in that invoice. The invoice for the electrical works to the pool makes no mention of the tree.

13 When questioned as to whether the respondent was notified of the damage to the pool filter, the applicants stated that they did not do so. The applicants contend that they had tried on numerous occasions to seek an amicable arrangement with the respondent with respect to the pruning of the tree but had had no success. They stated that as the respondent had not corresponded with them they considered there would be no benefit in bringing the pool problem to his attention.

14 Turning to the risk of injury posed by the tree. One of the applicants stated that some two years ago she slipped on a fallen fruit from the tree and fell. She stated that the fall resulted in a back injury. The respondent was not informed of this accident at the time it occurred.

15 In support of the application, there is a letter from a neurologist concerning the applicant’s back condition. The letter indicates that the applicant has a spinal disease that is “exacerbated by back movements particularly sweeping.” The slipping incident is referred to as is the overhanging tree however there is no evidence that the slip is the cause of the applicant’s condition.

16 Returning to s 10(2) and the alleged damage to the applicants’ property, the evidence is insufficient to prove the contention. The application appears to rest on a few words in the pool service invoice. There is no material evidence to prove the nexus between the tree and the alleged damage.

17 Even if I am wrong on that proposition, the tree dispute principle published in Barker v Kyriakides [2007] NSWLEC 292 is relevant in this matter. In this principle it is considered that ‘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.

18 The principle goes on to state that it is reasonable that such maintenance is done on a regular basis. It further states that ‘The dropping of leaves, flowers, fruits, seeds or small elements of dead wood, by urban trees, will not ordinarily provide the basis for ordering removal of or intervention with a tree.

19 Even if I am wrong about the lack of satisfaction of the jurisdictional test for the pool filter/pump, in this matter I see no reason to depart from the principle in Barker v Kyriakides and I am satisfied that the application of this principle, as a matter of discretion warrants the refusal of that element of the application.

20 Similarly, with the matter of the applicant’s contention that she slipped on a fruit from the tree, the evidence is insufficient to prove the nexus between the tree and the applicant’s back injury. Again, if I am wrong on the facts, I am satisfied that the application of the principle in Barker v Kyriakides, as a matter of discretion, is warranted in the element of the application dealing with risk of injury to persons and warrants the refusal of that element of the application.

21 Indeed, as Mr Ford’s report states, removal of some overhanging branches [as sought by the applicants] will do little to lessen the falling of leaves or fruit onto the applicants’ property. The reasonable expectation of regular cleaning should abate any undue risk of injury.

22 The claim for compensation is dismissed on the basis of the failure of the application to prove the nexus between the tree and the damage to the applicants’ property. In addition, the cleaning costs included in the claim are what would be reasonably associated with maintaining a pool and paving in an urban leafy environment.

23 Whilst it is not strictly necessary to consider s 12 of the Act as the judgement thus far considers that all elements of the application should fail, I was cautioned by counsel that the matters in s 12 should be considered.

24 The relevant clauses of s 12 in this matter are:

a) The tree is wholly located on the respondent’s property.
d) The tree makes some contribution to the local ecosystem and to biodiversity.
e) The tree contributes to the scenic value of the land on which it is growing and is valued by the respondent for the shade it provides. Liquidambars are a relatively common tree in the area and contribute to the character of the landscape.
f) The tree contributes to public amenity as it forms part of the tree canopy visible to properties located across a gully to the east. It is also visible from Carlotta Street.
h&i) The applicants have sought to resolve this matter with the respondent. The respondent did apply to Council to have the tree pruned. Permission was granted in July 2009 and the works were carried out in September 2009. These events were confirmed by evidence of the council approval and of the invoice for the works. Mr Gray confirmed the approval and the works. However, it appears that the extent of the pruning did not meet the applicants’ expectations.
The applicants did not notify the respondent of the specific incidents of the problems with the pool filter/pump nor the fall – two elements central to this application. Hence the respondent was denied the opportunity to respond to those incidents.

25 In conclusion, for the reasons given above, I am not satisfied that the facts of the matter satisfy the tests in s 10(2) and therefore the Court has no jurisdiction to make an order for the interference with the tree. However, if I am wrong on the facts, as a matter of discretion in applying the principle in Barker v Kyriakides I am not persuaded that the circumstances of this case justify deviating from the consistent approach the Court has maintained in applying this principle. As a result, the application in its entirety is dismissed.

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