Milevski v Pajkovic
[2022] NSWLEC 1492
•14 September 2022
Land and Environment Court
New South Wales
Medium Neutral Citation: Milevski v Pajkovic [2022] NSWLEC 1492 Hearing dates: 31 May 2022 Date of orders: 14 September 2022 Decision date: 14 September 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: See orders at [39]
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –trees growing near boundary of respondent’s land - damage caused by fallen tree – compensation sought – risk of injury from falling palm fronds
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 ss 7, 8, 9, 10, 12
Environmental Planning and Assessment Act 1979
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592
Texts Cited: Safe Work Australia ‘Guide to Managing Risks of Tree Trimming and Removal Work’, 2016
Category: Principal judgment Parties: Nikolce Milevski (First Applicant)
Blaga Dimova (Second Applicant)
Robert Pajkovic (First Respondent)
Livia Pajkovic (Second Respondent)Representation: N Milevski, self-represented (First Applicant)
B Dimova, self-represented (Second Applicant)
R Pajkovic, self-represented (First Respondent)
L Pajkovic, self-represented (Second Respondent)
File Number(s): 2022/98798 Publication restriction: Nil
JUDGMENT
COMMISSIONER:
Background
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The applicants, Nikolce Milevski and Blaga Dimova, share a side boundary at their West Wollongong property with Robert and Livia Pajkovic, the respondents. The applicants occupy their residence while the respondents’ property is leased to tenants.
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On 15 January 2022, a mature Eucalyptus sp (Gum) (the tree) growing close to the common boundary in the respondents’ front yard uprooted in conjunction with a strong storm and collapsed across the respondents’ driveway with consequential damage to the boundary fence and a masonry wall within the property. Unsurprisingly, the applicants were shocked by this event, particularly because it occurred only minutes after Mr Milevski had removed his car from the driveway area that the tree subsequently impacted, so as to collect his young children from his parents’ house. From photographs (photos), included with the application, the tree appeared to be about 15 metres (m) tall, with a sparse foliage cover and a fairly uniform trunk diameter, for at least the bottom 5m, of about 480mm.
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Ms Dimova first approached Mr Pajkovic in November 2017 seeking the removal of the tree on the grounds that it was unhealthy, as displayed by “visible black sap, holes with ants and other insects” and deadwood constantly dropping on their driveway. Ms Dimova noted that Mr Pajkovic was dismissive because Mr Milevski “does not like trees”, and suggested they park their cars in the garage or on the street, rather than on the driveway near the tree.
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Mr Milevski next met with the respondents’ son, Mr Karl Pajkovic in 2019 in relation to replacing the rear common boundary fence. Mr Milevski claims that a council worker pruning their street trees prior to this meeting had inspected the tree and advised that the tree had borer damage, and “it is just a matter of time to fall down”. He said he advised Mr Karl Pajkovic accordingly and was given the impression that the Pajkovic’s would thus apply to council for permission for tree removal. The applicants claim that they did not subsequently hear from the Pajkovic’s at all until the tree collapse on 15 January 2022.
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The applicants are also concerned about potential damage, and especially risk of injury to their young children as a result of fronds from two palm trees brushing their roof and gutters, and dead fronds falling onto their land. The trunks of the palms are in the respondents’ rear yard, within 500mm of the common boundary. One palm is a Syagrus romanzoffiana (Cocos Palm) while the other is an Archontophoenix cunninghamiana (Bangalow Palm) (the palms).
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As a consequence, Mr Milevski and Ms Dimova lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), seeking compensation for damage that one tree has caused, to remedy damage they say is currently occurring as a result of the palms, to prevent damage that she believes is likely in the near future, and to mitigate risk of injury occurring as a result of the trees.
The applicant’s proposed orders
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Mr Milevski and Ms Dimova propose the following (summarised) orders:
Respondent to compensate applicants for the cost of damage caused by collapsed tree.
Prevention of damage and injury arising from the two palms.
The respondent’s case
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The respondents resist the proposed order for compensation for damage. They note, in a letter to the Land and Environment Court (the Court) dated 26 May 2022 that, “It is our understanding – and continues to be – based on legislation, that a tree falling as a result of an “act of God event” is not the obligation of the owner of the land that the tree was on. But rather, it falls under the cover of home insurance of the neighbouring property.”
The on-site hearing
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The hearing was conducted on-site with both parties self-represented. The front yard damage resulting from the trees was inspected initially, then the palms in their site context close to the boundary where the children are alleged to play.
Jurisdictional requirements
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With respect to s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
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The Court is obliged to consider a number of matters pursuant to s 10 of the Trees Act which states:
(1) The Court must not make an order under this Part unless it is satisfied:
(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b) if the requirement to give notice has not been waived, that the Applicant has given notice of the application in accordance with section 8.
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The applicants have satisfied the requirement under s 8 of the Trees Act: to serve notice to the respondent more than 21 days prior to the proceedings. They have also satisfied s 10(1)(a) of the Trees Act; to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, as displayed by evidence of meetings on site in 2017 and 2019 (with the respondents’ son) and messages sent to the respondents in 2019 (via their son) and directly in 2022.
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The next major test that is posed, by s 10(2) of the Trees Act, which states:
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or
(b)is likely to cause injury to any person.
Damage caused by the tree
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On face value, I am satisfied that the tree has caused the damage claimed by the respondents. Photos with the application show the trunk laying across the mangled boundary fence and this damage is visible onsite. Similarly, the tree’s location in the photos and its trajectory is consistent with the location of damage to the second masonry wall further into the property on the far side of the driveway. As a consequence, s 10(2) of the Trees Act is engaged.
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If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Trees Act.
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In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), Preston CJ decided an appeal against the refusal of an application for compensation with many similarities, but also critical dissimilarities, to the situation found here.
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At [204]-[207] and [210] of Robson, his Honour considers the discretionary matters in s 12(h) and (i) of the Trees Act;
204 The matters in s 12(h) and (i) require the Court to consider whether there are any contributing causes of the damage or the likelihood of damage to property or the likelihood of injury to any person, other than the tree. The phrase “anything, other than the tree, that has contributed, or is contributing…” is wide.
205 It evidently includes “any act or omission by the applicant” and “the impact of any trees owned by the applicant” because both of these are specified to be included in the wider phrase. Thus, in Horn & Anor v Latter [2007] NSWLEC 744 (23 October 2007) (Moore C, Thyer AC) at [17], found that the reason why a tree required removal was because the applicants had poisoned the tree’s roots, killing part of the tree and rendering it “likely in the near future to cause damage” to the applicants’ property. As a consequence of this fact, although the Court ordered removal of the tree, it required the cost of removal to be borne by the applicants rather than the tree’s owner.
206 The phrase also would include any act or omission by the owner of the land on which the tree is situated, which has contributed or is contributing to the damage or the likelihood of injury to any person.
207 The considerations that arise in the tort of nuisance concerning fault, the nature of the conduct and the state of knowledge of a person on whose land a tree which causes a nuisance is situated (see discussion above at paragraphs 44-90), would be relevant in ascertaining whether any act or omission of that person has contributed or is contributing to the damage or injury. Thus, it would be relevant to consider whether the person created the nuisance constituted by the tree having caused, causing, or being likely to cause damage, or whether the person adopted or continued that nuisance. Such conduct could be said to be “anything, other than the tree, that has contributed, or is contributing to any such damage”.
210 The phrase would also allow consideration of extraordinary natural events, acts of God, and their contribution to the damage or the likelihood of damage to property or the likelihood of injury to any person.
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The essence of the decision as to whether this situation should be deemed an “act of God” hinges on foreseeability. In Robson, the fallen tree was inspected by an arborist, Mr Freeman, who determined it appeared healthy with a dense foliage cover and without indicators of potential faults in branches, trunk, or roots.
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At [19] of Robson, his Honour said;
“Mr Freeman gave supplementary written evidence that an expert appraisal by a horticulturalist or arborist on the tree before it had failed, would have focused on its apparent health and growing conditions. Any further assessment, such as taking soil samples or digging around the tree’s lower trunk, would only be taken “if the tree was exhibiting signs that indicated the presence of a soil root pathogen”. To the horticulturalist or arborist, the signs of a root pathogen within the tree are “thinning or poor foliage cover and density, weeping foliage, yellow of the leaves, fruiting bodies from fungi within the tree’s lower trunk region or on the trunk”. However, “[i]f none of these indicators were observed and the tree appeared visually healthy i.e. looked good, good foliage colour, density, canopy shape, form, and sound within an ornamental garden and lawn setting it would be my position that no further investigation would have been undertaken and/or warranted”: Supplementary Report, dated 21 December 2007, p 2.
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In Robson, the tree that failed in a storm had a dense healthy canopy cover and no other indications that would have led Mr Leischke or even a trained arborist to the likelihood of tree failure. Therefore, the tree failure was not foreseeable, so Mr Leischke was not found liable for the damage.
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In this case, however, the tree displayed many obvious signs that it was not healthy. Photos with the application display a very sparse canopy cover, epicormic growth and a relatively high level of deadwood. The trunk displays extensive Longicorn beetle larvae damage with conspicuous exit holes. All these factors are indicative of a reduction in root function and would have led a qualified arborist or horticulturalist to assess the roots and trunk base, had they had the opportunity. Photos with the application also clearly show extensive fungal (root rot) infestation with almost complete structural deterioration of the primary lateral roots right up to their junction with the trunk. Indications of fungal decay were likely present on the lower trunk and primary roots for many years. Effectively this situation was entirely predictable.
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While it may not be reasonable for the respondents themselves to have known that their tree was unsound, the tree exhibited obvious unusual characteristics, it was also large, close to the boundary and leaning towards the applicants’ land, where two small children resided. The applicants had brought their reasonable concerns to the respondents on multiple occasions, yet Mr and Mrs Pajkovic had apparently dismissed these concerns for more than four years.
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In this context, particularly considering that the Pajkovic’s were absent landlords, the reasonable responsible homeowner would have had their tree inspected by a qualified arborist or horticulturist, who would likely have recommended urgent removal.
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The respondents have therefore continued the nuisance by ‘unreasonably’ failing to have their clearly hazardous tree inspected. As a consequence, the respondents have significantly contributed to the damage through “omission by the owner of the land on which the tree is situated” (Robson at [206]), and orders shall be made for the respondents to compensate the applicants for the full cost of repairing the damage.
Palms – Near future damage and Risk of injury
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The second element of the application relates to future damage and alleged risk from two palms growing within 500mm of the boundary near the rear of the applicants’ house. The Cocos Palm, which has the thicker trunk of the two, is a species that grows rapidly and is known to shed dead fronds and fruit relatively constantly. Many Councils have removed this species from their Tree Development Control Plans DCP’s and instead exempted it from the requirement to seek permission for removal.
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In this situation, given the significant quantity of fronds and other debris likely to fall from the Cocos palm into the confined area where young children regularly play, I am satisfied that sufficient risk of injury exists for orders to be considered to mitigate it.
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Though I am not convinced that this palm is likely to cause damage in the near future, where, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination, orders made for this Cocos palm arising from risk of injury would also mitigate any remote likelihood of future damage it may cause.
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The Bangalow Palm has a much smaller crown spread and a slower growth rate and generally sheds debris less regularly. As it is close to the boundary, flowers and fruit and occasional fronds may fall onto the applicants’ land but in the case of this palm, I am satisfied that the risk it presents is low, and no orders shall be made for the Bangalow Palm.
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Various photos accompanying the application displayed accumulations of debris, particularly from the palms. At [55] of Robson, his Honour says (in summary) that encroachment by trees over a shared boundary is no basis for action unless damage (or risk of injury) results from such encroachment.
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Even if debris was occasionally dropping and blowing onto the house or other external surfaces of the applicants’ property, under the Trees Act, this alone does not constitute damage.
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The Court’s position is described at [171] of Robson, where Preston CJ said that “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 Act. “Hence leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours 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.”
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The issue of maintenance required to deal with such refuse is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at [20], establishes the Tree Dispute Principle:
“…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. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. 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.”Section 12 discretionary considerations
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As both s 10(a) and s 10(b) of the Trees Act are satisfied, I have jurisdiction under s 7 of Pt 2 of the Trees Act to make any orders. Prior to doing so, I am required to consider relevant discretionary matters in s 12.
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As the environmental benefits and services provided by the fallen tree are now largely absent, the “omission by the owner of the land on which the tree is situated” related to s 12(h) and (i) of the Trees Act (see discussion above at paras 16-24) in the primary consideration.
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The Cocos palm is located within 500mm of the common boundary with a large proportion of its canopy overhanging the applicants’ property (s 12(a)).
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Pruning or removal of this palm would not require consent from Wollongong Council under the Environmental Planning and Assessment Act 1979, as it is exempt.
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Neither party noted this palm’s contribution to privacy, protection from sun or wind, or other environmental services it may provide. It is relatively inconspicuous to public amenity due to its location at the rear of the property. Further, being an exotic palm, it is unlikely to readily contribute to the local ecosystem and biodiversity, and may have a negative impact on flying foxes when used as a food source (s 12(b3)(d)(f)).
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Should pruning be ordered to mitigate risk associated with this palm, the growth rate is sufficiently high that it would require such intervention twice each year to achieve the required outcome The environmental benefits of the palm are insufficient to justify the cost or potential additional conflict likely to accompany this high intensity maintenance routine. As a consequence, orders shall be made for removal of this palm.
Orders
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The orders of the Court are:
Within 30 days of the date of these orders, the respondents shall, at their expense, employ AQF level 3 arborists, with all appropriate insurances, to remove the Syagrus romanzoffiana (Cocos Palm) to near ground level, and remove all refuse. The two Bangalow Palms within the respondents’ property shall remain untouched.
Within 30 days of the date of these orders, each party shall procure and email the other party a maximum of one current quotation for replacement and installation of the 900mm high Balustrade damaged by the tree, which meets the precise specifications of quotation 00016188 from GM Fabrication dated 2/2/2022, provided by the applicants.
Within 7 days after the exchange of quotations in Order 2, the respondents shall reimburse the applicants, by EFT or bank cheque, for the total cost of the cheapest of the maximum two quotations which meet the requirements of Order 2.
Within 45 days of the date of these orders, each party shall procure and email the other party a maximum of two quotations from licenced builders with all appropriate insurances for the required cement rendering works and a maximum of two quotations from licenced painters with all appropriate insurances for painting works required to restore the walls to their condition prior to the tree failure.
Within 7 days after the exchange of quotations in Order 4, the respondents shall reimburse the applicants, by EFT or bank cheque, for the total cost of the cheapest of the maximum four quotations which satisfy the qualification and insurance requirements of Order 4 for the rendering works, plus the total cost of the cheapest of the maximum four quotations which satisfy the qualification and insurance requirements of Order 4 for the painting works.
Where access is required to complete the palm removal works, or for the purpose of gaining said quotations, the applicants shall provide access to the respondents, or contractors employed by the respondents, who have all appropriate insurances, upon receipt of no less than 48 hours written notice of date and approximate time of such access.
All works shall comply with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016.
All works shall be completed during normal work hours.
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J Douglas
Acting Commissioner of the Court
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Decision last updated: 14 September 2022
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