Manolis v Blazek

[2010] NSWLEC 1072

Land and Environment Court

of New South Wales

CITATION:	Manolis v Blazek [2010] NSWLEC 1072
PARTIES:	APPLICANTS Theo and Georgina Manolis RESPONDENTS Anthony and Angela Blazek
FILE NUMBER(S):	21011 of 2009
CORAM:	Fakes C
KEY ISSUES:	TREES (NEIGHBOURS) :- Damage to property Injury to persons Removal refused
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Robson v Leischke [2008] NSWLEC 152 Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	26/03/10
DATE OF JUDGMENT:	26 March 2010
EX TEMPORE JUDGMENT DATE:	26 March 2010
LEGAL REPRESENTATIVES:	T & G Manolis [litigants in person] A & A Blazek [ litigants in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

26 March 2010

21011 of 2009 Manolis v Blazek

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 (the Act) made by Mr and Mrs Manolis of 29 Picnic Point Road Picnic Point against the owners of three trees growing at 31 Picnic Point Road. The owners of that property are Mr and Mrs Blazek.

2 The applicants are seeking the removal of the three trees as they contend that all three have caused damage to their property and two trees pose a risk of injury to persons. In September 2009, the applicants’ solicitors, Henaghan McLean Lawyers, commissioned an arborist Mr Scales, of Naturally Trees, to prepare a report on the trees. The information in that report is relied on by the applicants and is referred to in this judgement. It is noted that Mr Scales only viewed the trees from the applicants’ property.

3 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees subject to this application have caused, are causing, or are likely in the near future to cause, damage to the applicants’ property or are likely to cause injury to any persons. That is, the tests must be applied to each tree. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or likelihood of injury is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay.

4 The three trees are growing in a garden bed along the northern side of the respondents’ back yard. The applicants’ property is to the north. Along the southern side of the applicants’ property is a garage, a covered entertainment area and a garden shed. These are constructed virtually to the fence-line. According to the oral evidence given at the hearing, the garage and entertainment area were in existence when the applicants moved in but they constructed the workshop on an existing slab.

5 Tree 1 is a Liquidambar styraciflua (Liquidambar) planted by the respondents about 30 years ago. The tree is mature and healthy but Mr Blazek lopped it to a height of about 6-7m about 9 months ago. The lateral branches were also lopped to limit the spread of the canopy. At the time of the on-site hearing, there were no branches from this tree overhanging the applicants’ property.

6 The damage said to have been caused by this tree is the dropping of leaves onto the applicants’ property. In fact Mrs Manolis stated that the main issue with all of the trees is the unacceptable quantity of leaves and debris dropped by the trees onto their property and the inconvenience this causes.

7 The applicants contend that the roots from Tree 1 have caused damage to the tiled floor of the entertainment area. Mr Manolis exposed a root in a lawn area to the north of the shed between two citrus trees planted in the lawn. He stated that this root was from the Liquidambar. When I asked him to show me the damage it has caused, he could not although I was shown a hairline crack in the grout between several ceramic floor tiles. This crack was not close to the tree and did not extend from the south (that is from the respondents’ property) but rather from the south-eastern corner of the applicants’ tiled back verandah. It appears as though the crack is leading to the south. There is no evidence to connect this crack with any of the respondents’ trees.

8 There is no evidence that tree 1 has caused, is causing, or is likely in the near future to cause, damage to the applicants’ property. The likelihood of this tree causing injury is not pressed, but if it were, I would conclude that there is no likelihood of this tree causing injury to any person.

9 Tree 2 is a mature Cupressus sempervirens (Italian Cypress), reported by the respondents to be about 25 years old. According to the respondents it was lopped about 10 years ago. More recently, it has been cut to the fence-line by Mr Manolis. According to the applicants, they received advice from their solicitor that they had the right to prune all overhanging branches back to the common boundary. It appears that this was done on the June long weekend in 2009 with some branches left on the roof and others placed on the respondents’ property.

10 At the hearing, it was clear that many cut branches from all three trees had been left in situ on the roof, apparently for the purpose of the hearing.

11 The arborist’s report states that this tree has a medium hazard rating and “there is a potential for large branch drop and further structural damage”. There is no evidence that this tree has caused structural damage, and no structural damage was shown to me at the on-site hearing. Whilst the lopping has diminished the appearance of the tree, there are no signs indicating that this tree will cause damage to property or injury to any person.

12 Tree 3 is a mature Eucalyptus sideroxylon (Mugga Ironbark). The respondents stated that it was about 6m tall when they purchased their house 33 years ago. It could be reasonably assumed that the tree is about 45 years old. It too has had some branches lopped however, most of the canopy is of natural form with normal and sound branch attachments. There are no obvious structural defects. Mr Scales refers to borer damage. I saw no active damage but some older, insignificant damage on an old trunk wound.

13 There is no evidence that this tree poses a risk of damage to property or is likely to cause injury to any person. The applicants stated that this tree had caused damage to their antenna. There was no evidence of this as the antenna had reportedly been replaced. The respondents were not informed of this at the time and thus did not have the opportunity to confirm the incident or to take any action if it was warranted.

14 The respondents value this tree for the shade it provides and the wildlife it attracts including native birds and possums.

15 Returning to the main area of concern raised by the applicants, that is the inconvenience of clearing up leaf drop, I refer to Robson v Leischke [2008] NSWLEC 152 at paras 171 and 172 where Preston CJ writes:

171 However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not “damage to property on the land” within s 7 of the Trees (Disputes Between Neighbours) Act 2006 . Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour’s land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.

172 I note that in Barker v Kyriakides [2007] NSWLEC 292 (24 May 2007), Moore C, Hussey C and Fakes AC found, as a matter of discretion, that “[t]he 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”: at [20]. However, the problem is anterior to the exercise of discretion as to whether to make an order under the Act; there is no power to make an order in relation to the tree unless such debris of the tree “has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property” on the land: ss 7 and 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 .

16 As there is no evidence that any damage has been caused to the applicants’ property by the dropping of leaves and debris and as none of the other tests under s 10(2) have been met for any of the trees, the Court does not have the jurisdiction to make an order to interfere with any of the trees.

17 The Orders of the Court are:

1. The application to remove the trees is dismissed.

_____________________________

J Fakes
Commissioner of the Court