Newman v Smith

[2008] NSWLEC 1293

Land and Environment Court

of New South Wales

CITATION:	Newman v Smith [2008] NSWLEC 1293
PARTIES:	APPLICANT Dennis Newman RESPONDENTS Graham & Pam Smith
FILE NUMBER(S):	20313 of 2008
CORAM:	Moore C - Fakes AC
KEY ISSUES:	Discretion - Jurisdiction - Trees (Neighbours) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Robson v Leischke [2008] NSWLEC 152 Wyong Shire Council v Shirt (1980) 146 CLR 40 Briginshaw v Briginshaw (1938) 60 CLR 336 Yang v Scerri [2007] NSWLEC 592 Nair v Edwards [2006] NSWSC 1310 Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	4 July 2008
EX TEMPORE JUDGMENT DATE:	4 July 2008
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
FAKES AC

4 July 2008

08/20313 Dennis Newman v Graham & Pam Smith

JUDGMENT

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

1 COMMISSIONERS: To the rear of 41 Carramar Road, Castle Hill, a number of trees grow along the boundary with the adjoining property which is generally to the south or slightly southwest. Mr and Ms Smith are the owners of 41 Carramar Road.

2 Mr Newman is the owner of the adjoining property. He has made an application under the Trees (Disputes Between Neighbours) Act 2006 for the removal of three of these trees – being two palm trees and a Jacaranda. Mr Newman also seeks an order for compensation totalling $16,395 made up of a variety of elements.

3 There are a number of bases upon which Mr Newman seeks orders for removal of the trees.

4 We commence our consideration with the two palms which, as is conceded by Mr and Ms Smith, have occasionally but infrequently dropped dead fronds on to Mr Newman's property. Mr Newman’s clothesline is located in the vicinity of the palm trees about 2 to 3 m from the fence.

5 Mr Newman has provided us with a photograph showing a palm frond on his clothesline. In this regard, we must consider these two palm trees against the jurisdictional tests in the s 10(2) of the Act. These tests are have these trees caused; are they now causing; are they likely in the near future to cause damage to Mr Newman's property; or are they likely to cause injury to any person.

6 We preface our remarks on this element of Mr Newman's application by observing that the mere deposition of material onto his land, as in this case, fronds of the palm trees, was discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152 at para 171. Such deposition is not in itself a trigger for our intervention. The fact that this material may fall on his property and may cause annoyance or disturbance to him provides no basis for jurisdiction and the Court’s intervention under the Act. It is necessary that such deposition have caused; be causing or be likely in the near future to cause actual damage to his property or be a likely cause of injury to any person.

7 Although the clothesline is in the target area for falling fronds from these trees, the question that we are obliged to consider is not merely whether there is some risk that is foreseeable but also the likelihood of that risk coming to fruition and causing damage or injury. We have no evidence that there has been any or is currently any actual damage Mr Newman's property nor has anyone been injured by the deposition of this plant material at any time in the past.

8 Even if we were to accept that there is the possibility of some future damage to property which may be hanging on the clothesline or risk of a frond falling on a person on Mr Newman's land, we are not satisfied, consistent with the approach taken by the High Court in Wyong Shire Council v Shirt (1980) 146 CLR 40, that the likelihood of that damage or the likelihood of injury any person is sufficiently high that an ordinary and appropriately prudent approach would require the removal of those palm trees. We are therefore of the view that, even if we were satisfied that there was some at risk of damage to Mr Newman’s property or some risk of injury to any person we are not satisfied that it is sufficiently likely to warrant any intervention with or removal of the palm trees.

9 That element of Mr Newman's application is therefore refused.

10 With respect to the Jacaranda tree, the claim for removal of the Jacaranda is put on a variety of bases. These relate to roots in Mr Newman's sewer pipe; the accumulation of leaves (which for the purposes of this decision we are prepared to assume Jacaranda leaves) under the roof tiles of his property and on top of the sarking within the roof; the lifting of a concrete footing underneath the boundary fence between the two properties; and lifting of a concrete slab at the rear of Mr Newman's property and in the vicinity of to a translucent corrugated roof to a portico to the rear of the house. Mr Newman also seeks us to have regard to the accumulation of leaves from the tree on the top of that translucent roof as a basis for ordering removal of the Jacaranda tree.

11 Mr Newman has provided us with two expert reports.

12 As this is civil litigation, Mr Newman is obliged to prove to us, on the balance of probabilities and to the degree of comfortable satisfaction discussed by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336, that this Jacaranda has been the cause of the matters that are of concern to him. If we are satisfied, against the tests in s 10(2) of the Act, that this Jacaranda is a cause, we then move to questions of the discretion of the Court being exercised after considering the extent of the causation, the seriousness of the impact and what might be the reasonable remedies flowing from it.

13 We turn first to the question of roots in Mr Newman’s sewer pipe. Mr Newman had shown us, through an access and inspection point to the sewer pipe, in his rear yard, a number of small roots of some to 3 to 5 mm in diameter in the sewer pipe. We thus accept that there are tree roots growing in his sewer pipe.

14 The report from Mr Newman's arborist, Mr Gatenby of Apex Tree and Garden Experts, deals with the roots in the sewer pipe in the following terms:

There were also small roots in the sewer pipe as seen through an inspection opening between the house and the rear boundary. There are two other trees present near to the rear boundary, another Jacaranda to the north and some distance from the house, and an Illawarra Flame Tree ( Brachychiton acerifolius ). The roots observed were not consistent with those of an Illawarra Flame Tree.

15 Mr Gatenby does not say that the roots were those of a Jacaranda. There are a number of other trees growing in the vicinity about which Mr Gatenby makes no mention. There is a Teatree located nearby on the Smiths’ property and there are is at least one citrus tree located on Mr Newman's property in the vicinity of the inspection point. We note that the wording of Mr Gatenby’s report, in this regard, is very cautious in that he says of the roots he observed merely that they were not consistent with those of an Illawarra Flame Tree.

16 At an earlier point in his report, when inspecting other roots that had been exposed by Mr Newman, Mr Gatenby expressed the opinion that the roots had the appearance of Jacaranda roots. He expresses no such opinion with respect to the roots in the sewer pipe.

17 We consider that this approach taken by Mr Gatenby is entirely consistent with the position we consider appropriate. First, the roots are of a sufficiently small size that it would be extremely difficult (absent any DNA testing) to ascertain the nature of the tree from which they emanated. Second, the closest trees are not confined to the Jacaranda or the Illawarra Flame Tree – as earlier observed other nearby trees include a Teatree and a citrus tree. We are not satisfied, with respect to the roots in the sewer, that Mr Newman has established, on the balance of probabilities, that those roots are from the Jacaranda. We therefore reject this element of his application.

18 We now turn to the leaves on top of the translucent roofing system. The damage or risk of injury that is claimed to arise comes from the report provided by Mr Newman's consulting engineer, Mr Frasca, who reported that:

The observed decayed leaf debris on the top of the polycarbonate roof is a serious fire hazard and must be removed.

19 We make two observations concerning this. The first is that although there may be a fire hazard from the build-up of material (in light of Mr Newman asking us to consider the prospect of embers from bushfires at a considerable distance falling on the roof and setting fire to this debris), we note that the roof has been erected for some considerable period of time; the tree has been depositing leaves on the roof for a similarly lengthy period of time; Mr Newman's response, to a question from us, is he has had no actual experience of fire as a result on leaves on that roof or in his roof generally.

20 On these facts, we cannot be satisfied that there is a likely risk of damage in the near future to this roof caused by that material. In Yang v Scerri [2007] NSWLEC 592, the Court set out, for future consideration, a rule of thumb as to what might constitute the near future for the purposes of s 10(2)(a) of the Act. In that case, twelve months was adopted as an appropriate period. We also note that this is a more generous period of time than that discussed in Nair v Edwards [2006] NSWSC 1310 (a tree nuisance case in the Supreme Court where Windeyer J held that an appropriate period of time for future damage might be a short as six months).

21 We have considered whether we should depart from such a timeframe in this case. We are of the view that it is appropriate to adopt that rule of thumb here. We are not satisfied that there is any likelihood of damage from fire to Mr Newman's polycarbonate roof in the next twelve month period and, therefore, on that basis, we do not accept that element of his application.

22 Even if we were wrong on that proposition, the tree dispute principle published in Barker v Kyriakides [2007] NSWLEC 292 discusses the obligations of householders who have the aesthetic and environmental benefits of trees in an urban setting and the requirement that they may reasonably be expected to undertake property maintenance including the removal of the tree detritus such as leaves, nuts, fruits or small branches falling from such a trees onto their property. Even we are wrong about the lack of satisfaction of the jurisdictional test for the polycarbonate roof, we are satisfied that the application of the principle in Barker v Kyriakides, as a matter of discretion, also warrants the refusal of that element of Mr Newman's application.

23 We now turn to the question of the footings of the fence between the properties. This lifting is minor. The areas of lifting of the footings of the fence are in the general vicinity of where a trench which was opened by Mr Newman for inspection by Mr Gatenby which inspection showed tree roots consistent with a Jacaranda root - as observed in Mr Gatenby’s report. However, the particular point of lifting in the fence which Mr Newman took us to is closer to and in the immediate vicinity of the Teatree (a tree which is not the subject of this application). We are not satisfied, on the balance of probabilities, that the lifting of the fence’s footing was caused or is being caused by roots from the Jacaranda.

24 Even if we are wrong on this point, the lifting of the concrete footing is not of sufficient seriousness as to require its rectification. Mr Newman has not demonstrated to us any particular maintenance or other problems (other than what we would regard as a trifling aesthetic problem) caused by the lifting of this footing. Therefore, if we be wrong on causation, we would not, as a matter of discretion, make any order with respect to the Jacaranda as the consequence these minor cosmetic alterations to the footings of the fence.

25 We turn now to the question of the Jacaranda roots in Mr Newman's floor space. This is dealt with in Mr Frasca’s report where he notes a comment by Mr Gatenby that:

An inspection opening within the rear of the house also showed small roots growing from the direction of the Jacaranda underneath the house. The roots had the appearance of Jacaranda roots.

26 As a consequence, Mr Frasca accepted that these roots are from the Jacaranda. This is a finding which, under the circumstances of Mr Gatenby’s report and our own observations through the inspection opening, we are also prepared to accept as accurate. Mr Frasca then expressed the opinion that:

…….. to date no structural damage to the rear house footing and rear house wall has been caused as a result of the occurrence of the observed roots under the footing.
The possibility that structural damage to the residence footings and residence will occur as a result of future tree root growth cannot be ruled out.

27 Accepting that this opinion, that future tree root growth cannot be ruled out, is accurate, this expert opinion does not and could not satisfy the test in s 10(2)(a) that such damage would have to be likely in the near future before it was a matter which would give the Court jurisdiction in this regard. On the basis of Mr Newman's own expert opinion, we do not accept this element of his application and it is also rejected.

28 The next matter to which we turn relates to the portion of a concrete pavement along the rear of Mr Newman's house – part of which is drummy and part of which is, on Mr Frasca’s report, a 3mm to 15 mm trip hazard along one junction between slabs.

29 Although we accept that it may be possible that the slab may have been lifted by tree roots underneath, we are not satisfied that that lifting has been occasioned only by roots from the Jacaranda. We note that this point in the slab is closest to the Teatree. Mr Gatenby expresses no opinion on this matter. Although Mr Frasca said that he considered it likely that Jacaranda roots caused the lifting, he provides no evidence in support of this assumption.

30 Even if we were satisfied that some of the lifting may have been caused by roots from the Jacaranda rather than by roots from the Teatree, it also may have been caused from some other form of soil profile alteration. We have observed that the slab is in the vicinity of an un-guttered section of the translucent roof and we noticed that there was quite a prominent drip line along the to the edge of the whole of the concrete slab at a distance of some 100 to 150 mm from it. This would exacerbate any alterations in the soil profile as a result of any reactive clays, for example, that might be in the soil.

31 Mr Newman has not satisfied us that impact on the concrete slab was caused specifically or solely by roots of the Jacaranda. That element of Mr Newman's claim is therefore rejected.

32 The final matter to which we turn is the question of the Jacaranda leaves in the roof.

33 We accept these leaves are likely, on the evidence, to be leaves from the Jacaranda trees in the vicinity and that the majority (indeed the significant majority) of them are likely to be from the Jacaranda on the Smiths’ property – although it is possible that some of them may also be from a Jacaranda partially on Mr Newman's property (in the north-western corner of his property).

34 Mr Frasca expresses the opinion that the leaf build-up inside the roof on top of the sarking is a serious fire hazard and must be removed. There is no evidence from Mr Newman of present or prior damage to the roof nor is there any expression of opinion from Mr Frasca that the leaves are a risk of damage to the sarking. Mr Frasca describes this as “small amounts of decayed fine leaf debris”. This is consistent with the photographic evidence. No other evidence on this point – apart from Mr Newman's own assertions concerning bushfire ember risks – has been provided.

35 For the same reasons that we have expressed concerning fire hazards for the build-up of leaves on the polycarbonate roof, we are also satisfied that there is no realistic likelihood of a fire being occasioned in the leaves that are on top of the sarking underneath Mr Newman's tiles. We expressly reject the proposition that summer heat on the roof is likely to cause such a fire - there having been no experience of such fire in the 15 or so years that it is reasonable to expect (on the location of the roof and the size of the Jacaranda) that there has been some leaf accumulation occurring under the tiles. For those reasons that element of the application is also refused.

36 The consequence is that the totality of Mr Newman’s application is dismissed.

Tim Moore Judy Fakes
Commissioner of the Court Acting Commissioner of the Court