Riachi v Kerslake

[2010] NSWLEC 1153

Land and Environment Court

of New South Wales

CITATION:

Riachi v Kerslake [2010] NSWLEC 1153

PARTIES:

APPLICANTS
John & Fiaryal Riachi

RESPONDENT
Grahame Kerslake

FILE NUMBER(S):

20283 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Potential damage to property
Property not in existance
Boundary tree

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Robson v Leischke [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

22/06/2010

 
DATE OF JUDGMENT: 

22 June 2010

EX TEMPORE JUDGMENT DATE:

22 June 2010

LEGAL REPRESENTATIVES:

APPLICANT
John Riachi [litigant in person]

RESPONDENT
Grahame Kerslake [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

22 June 2010

20283 of 2010 Riachi v Kerslake

JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Hermitage Drive Illawong against the owner of a tree growing substantially on an adjoining property.

2 The applicants are seeking the removal of the tree as they contend that it could potentially cause damage to a newly constructed pool and to filtration equipment and pool motors that are yet to be installed. They state that future root growth will damage the wall of a waterfall to be created at the eastern end of the pool. They also contend that the tree will create difficulties for the erection of a dividing fence and pose issues for security and access to the (yet to be installed) pool equipment.

3 The tree is a Glochidion ferdinandi (Cheese Tree) that has been reduced to a stump of about 2 m high but is still alive. In Robson v Leischke [2008] NSWLEC 152 at para 147, Preston CJ makes it clear that:

“The concept of a “tree” is wide enough to include a tree that has been reduced to a bare trunk or a stump that is still connected to the soil of the land.”

4 The tree straddles the boundary of the two properties. A partially completed swimming pool has been constructed within about 2 m of the tree.

5 Given the location of the tree on the boundary, the applicant was directed to have the boundary line surveyed and marked appropriately. It is essential to determine the ownership of the tree for the reason given in s 4(3) of the Act.

“For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land”.

That is, more than 50% of the base of the tree must be located on the respondent’s property otherwise the Court has no jurisdiction.

6 In this matter, I am satisfied that more than 50% of the tree is situated on the respondent’s property.

7 By way of background, the respondent applied to Sutherland Shire Council to have the tree removed in order to build a fence. Evidence provided by the respondent (exhibit 1) indicates that council assessed the tree in September 2008 and its removal was refused on the basis that it was an endemic species and well away from any proposed building envelope. The Council also suggested “the fence could be stepped around the tree in order to retain it as this is one of the few only [sic] trees on the subdivision”.

8 The applicant received development consent for the construction of a dwelling and pool on his property in late 2009. In material tendered by the respondent, the council conditioned the retention and protection of the tree. The material also includes documentation from council detailing the breach of these conditions. In March 2010, the applicants applied to council to have the tree removed. The tree was assessed and determined by council in May 2010. The council refused permission for the removal of the tree, principally on the basis that it was conditioned for retention.

9 In a section of plan, presumably part of their development application, included by the applicants in their application (exhibit A), the pool and associated equipment is shown 1-2 m further to the north of the tree than the position observed at the on-site hearing. That is, the pool has been constructed closer to the tree.

10 At the hearing, it was clear that a reinforced concrete pool has been partly constructed and the wall on which the waterfall will operate has been constructed on the pool edge (this is illustrated in photographs tendered by the applicants). It is this wall that the applicants contend will be damaged by future root growth.

11 It was also obvious at the hearing that the pool pump and filter was not installed. Mr Riachi stated that the tree needed to be removed in order to locate this equipment behind the wall of the pool and also to prevent future damage to the associated plumbing.

12 Under s 10(2), the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is likely to cause injury to any person.

13 In this matter there is no evidence that the tree has caused or is causing damage to the applicants’ property. I also consider it highly unlikely that the roots of the tree will, in the near future, cause damage to the wall on which the waterfall is to be built given the condition of the tree and the nature of the construction of the reinforced structure on which the wall sits.

14 The applicant was reminded that the onus is on the applicant to prove, ‘on the balance of probability’ that the damage to his property he says could occur is due to the tree subject to the application. No such proof was provided apart from Mr Riachi’s claim that a plumber had informed him that the roots might cause problems.

15 With respect to possible future damage, the Court has consistently applied the guidance decision given in Yang v Scerri [2007] NSWLEC 592 at para 14, the Court determined the following meaning of ‘the near future’.

Ordinarily, the near future would involve a time period extending from the date of determination of the application to 12 months. After 12 months, it would be difficult to describe a period as being “ in the near future ” or being close in time to the date of determination of the application. We say "ordinarily" because there may be, in the particular circumstances of the case, reason to adopt a longer period than 12 months. The adoption of a 12 month rule of thumb period means that in order to satisfy the third test in s 10(2)(a), the tree concerned would need to be likely to cause damage to property within a period of 12 months after the date of determination of the application. If it is not likely to do so within that period but rather in a longer period, the third test in s 10(2)(a) could not the satisfied and the Court would have no power to make an order in relation to the tree (assuming that no other test under s 10(2)(a) or (b) is satisfied). This would not prevent a further application being made in the future if the tree concerned becomes likely, in a future period beyond 12 months, to cause damage to property.

16 It is beyond the jurisdiction of the Court to order any interference with a tree on the basis of property that does not yet exist, that is in this matter, the pool equipment or the fence.

17 For the forgoing reasons, the Order of the Court is that the application to remove the tree is dismissed.

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