Lines v Shanks

[2009] NSWLEC 1433

Land and Environment Court

of New South Wales

CITATION:

Lines v Shanks [2009] NSWLEC 1433

PARTIES:

APPLICANT
Jeffrey Lines

RESPONDENT
Phillip and Angie Shanks

FILE NUMBER(S):

20734 of 2009

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of the three trees, risk of injury to people and damage to property.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Robson v Leischke [2008] LEC 152
Barker v Kyriakides [2007] NSWLEC 292
Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

16 December 2009

EX TEMPORE JUDGMENT DATE:

16 December 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Lines (litigant in person)

RESPONDENT
Mr P and Mrs A Shanks (litigants in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

16 December 2009

20734 of 2009 Jeffrey Lines v Phillip and Angie Shanks

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 Mr Jeffrey Lines of 6 Delasala Drive Macquarie Hills against the owners of three trees growing at 6 Delasala Drive. The owners of that property are Phillip and Angie Shanks.

2 The applicant is seeking the removal of the three trees as he contends that they pose a risk of injury to people and damage to property. In particular Mr Lines is concerned about the proximity to his house of a large eucalypt. He also contends that roots from the trees have blocked and could continue to block his sewer. He is also concerned about the mess from leaves falling onto his property and the potential fire risk that they pose. One of the trees is a Camphor Laurel that the applicant contends should be removed as it is a ‘noxious’ weed.

3 The applicant is also seeking compensation of a sum of $1040 for various costs including cleaning the sewer, inspection of the sewer with CCTV and the cost of lodging this application. With respect to the cost of the application, Commissioners do not have the jurisdiction to award such costs.

4 The trees subject to this application are growing along the western boundary of the respondents’ property in a garden bed that contains several other trees and shrubs.

5 Tree 1 is a mature Eucalyptus punctata (Grey Gum) approximately 18 m tall. It is healthy with less than 5% dead wood. There is no significant dead wood on the applicant’s side of the tree. The crown of this tree partially overhangs the applicant’s property but is substantially over the respondents’ property. The trunk bifurcates at about 2 m and there is some included bark with some reaction wood on the eastern side of the stem. This junction appears quite stable. There are no indications of previous failures from this tree.

6 The applicant’s main concern with this tree is that the tree is large, it overhangs his property and parts of it may fail onto his property. He is also concerned about the leaves and perhaps the ingress of roots into his sewer. To date, there has been no actual damage caused to the applicant’s property by the falling of anything from this tree.

7 Tree 2 is a semi-mature Camphor Laurel about 3-4 m tall and 200 mm in diameter that appears to be self-seeded. It is healthy but quite suppressed by surrounding vegetation; it is growing near the base of tree 1. The majority of the foliage is growing towards the applicant’s property but there is little overhang. The applicant’s main concern with this tree is that he considers it to be a noxious weed and perhaps its roots are causing problems to his sewer.

8 Tree 3 is a Salix matsudana ‘Tortuosa’ (Tortured/ Corkscrew Willow). It is a mature tree that has been lopped to a height of about 3-4 m. Mr Shanks cuts the tree to that height on an annual basis. The stubs show some signs of decay that are not inconsistent with that method of pruning. The regrowth was about 1-1.5 m long at the time of the hearing. The applicant’s main concerns with this tree are the leaves and the roots.

9 The applicant produced evidence of a CCTV inspection report carried out on 25^th August 2009 by Bartlett Blasting. This inspection was carried out due to a blockage of the applicant’s sewer.

10 The report shows roots at 0m at the entry point located adjacent to the applicant’s house and than again at 9.5 m at a bend and joint where the sewer line changes direction from north to west. No roots were reported beyond that joint to the west.

11 According to the applicant, but not explicit in the report, the section of sewer between the entry point and the joint was full of fine roots. This section is about 3 m from the respondents’ garden and runs parallel to the boundary fence until the joint at 9.5 m. Unfortunately, no roots were retained for inspection and subsequent water blasting washed them away.

12 The tree closest to the entry point is the willow and the Eucalypt is closest to the bend.

13 Under s10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of injury to persons. That said, the tests must be applied to each tree.

14 The Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are:

(a) The trees are wholly located on the respondents’ property.
(d) The Grey Gum will make a contribution to the local ecosystem and to biodiversity as it is a local species.
(e) The trees contribute to the scenic value of the land on which they are growing and were one of the reasons why the respondents purchased the property about 13 years ago. They value the shade and general amenity they provide.
(f) The trees are visible from the road and form part of the overall canopy and landscape character of the area. They therefore contribute to public amenity.
(h)(i)(ii) Mr Lines had a tree growing in his front garden in close proximity to the sewer line when he purchased his property about 9 years ago. He removed it to a stump at that time and removed the stump some 3 years ago. There was some debate between the parties as to whether the stump was dead or suckering.
When the applicant raised the issue of the August blockage with the respondents, Mr and Mrs Shanks took action and removed a Jacaranda from their property that was growing towards the applicant’s property. The stump was cut and poisoned.
The applicant’s sewer pipes are terra cotta.

15 Returning to s 10(2) with respect to each of the trees. In regard to some of the concerns raised by the applicant, the Trees (Disputes Between Neighbours) Act 2006 is restricted to actual or potential actual damage being caused to property or injury to persons. In Robson v Leischke [2008] LEC 152 at 56, Preston CJ states that mere encroachment is not damage, in 169 that damage must be proved and in 171 annoyance or discomfort to an applicant by such things as leaves and flowers blown onto their property from their neighbour’s land is not “damage to property on land’ within s7 of this Act unless they also cause damage to property on the neighbour’s land.

16 In Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This applies in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. This also applies with respect to any perceived fire risk.

17 With respect to Tree 1, the Grey Gum, and risk of injury, whilst there is included bark between the stems, in my opinion the risk of failure is low. There is very little dead wood in the tree and what exists over the applicant’s property is very small in diameter and unlikely to cause either damage or injury. There are no other signs in the tree that would lead me to conclude that this tree poses a risk of injury to persons.

18 The Camphor Laurel is small and healthy and there is no indication of any damage being caused by this tree now or in the near future. Whether or not a tree is classed as a noxious weed by the local council is not a matter for the Court in this jurisdiction. The jurisdiction is enlivened only if any of the tests in s 10(2) are satisfied with respect to the tree in question. None of those tests are met with respect to this tree.

19 Similarly with the Willow, no above ground parts have caused or are likely to cause damage to property or are a risk of injury to persons.

20 Returning to the sewer damage. On the balance of probability, the roots that have blocked the applicant’s sewer are likely to have come from plants growing on the respondents’ property with the most likely plant being the willow. Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order. However, as none of the roots were kept or identified, it is not reasonable to make an unqualified order to remove any of the trees.

21 With respect to compensation, Senior Commissioner Moore gave clear directions as to what receipts were to be filed and the date by which this was to be done. The only receipt filed by the applicant is one for inspecting the sewer. As the onus is on the applicant to prove the connection between the problem and the tree/s, this cost is deemed to be part of that responsibility. Therefore, compensation for that cost is refused.

22 However, there is a risk that roots from the respondents’ trees may cause damage to the applicant’s sewer in the near future. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

23 Therefore the Orders of the Court are:

1 The application to immediately remove any of the trees is dismissed.
2 The application for compensation is dismissed.
3 Should the eastern section of the applicant’s sewer become blocked at any time during the next 12 months, the applicant is to immediately notify the respondents.
4 The applicant is to engage and pay for a plumber to clear the blockage. If roots have caused the blockage, the roots are to be retained for inspection by the respondents.
5 If roots are found, the respondents are to reimburse the applicant for the clearing of the sewer within 14 days of the receipt of a tax invoice for the completed work.
6 If the roots are confirmed as being from the willow, the willow is to be removed to ground level and the stump poisoned within 8 weeks of the clearing of the sewer. This is to be paid for by the respondents.
7 If roots are not the cause of the blockage, all costs are to be borne by the applicant.

___________________

Commissioner of the Court