Russell v Parsons

[2009] NSWLEC 1026

Land and Environment Court

of New South Wales

CITATION:	Russell v Parsons [2009] NSWLEC 1026
PARTIES:	APPLICANT Shayne Russell RESPONDENT V Parsons
FILE NUMBER(S):	20982 of 2008
CORAM:	Moore C - Thyer AC
KEY ISSUES:	COMPENSATION - TREES (NEIGHBOURS) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
DATES OF HEARING:	20 January 2009
DATE OF JUDGMENT:	6 February 2009
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr V Parsons, agent

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

6 February 2009

20982 of 2008 Shayne Russell v Mrs V Parsons

JUDGMENT

1 COMMISSIONERS: We reserved our decision at the on-site hearing on 20 January 2009. This written judgement is based on our observations and notes made at the hearing, statements and information provided by the parties at the hearing, and documentation on the court file.

2 Before proceeding to consideration of the substantive issues in this application, there are a number of preliminary procedural matters which need to be explained.

3 The first of these is that the application has been made by Ms Russell as one of the two owners of the properties which had been damaged by the significant failure of a tree. This application was made by her because she was the registered owner of each of the two vehicles for which a compensation claim was made on the basis of damage by trees located on the Parsons' property. Ms Russell's partner, Mr Ramsay, gave an undertaking to the Court that if Ms Russell were to be successful in her claims, he as co-owner of the property would not be pursuing any separate claim and that the claim which she was making was in full satisfaction of any claims that they might jointly have or that he might separately have.

4 In addition, had the claim not been made in Ms Russell’s name or in their joint names but had been made in her partner’s name alone, it would not have been possible for there to have been a valid compensation claim for either of the vehicles. This arises because the Act requires, by a combination of s 7 and s 3(1) that any claim to compensation must be brought for damage to the applicant's property which is located on the applicant's land. If the claim had been made by him alone, it would have been a claim for damage to property which was located on his land but which was not his property. Such a claim would have been outside the jurisdiction of the Court and would necessarily fail.

5 The third matter which arose related to the adequacy of service of the original applications and the directions leading up to the on-site hearings. The relevant ones of the Standard Tree Directions, which were made at the preliminary hearing (a hearing in which Mr and Mrs Parsons did not take part,) were that Mr and Mrs Parsons were to be served with a copy of the directions. These directions had to be served on Mr and Mrs Parsons by 3 December 2008 and proof of such service was required to be provided to the court by 14 December 2008.

6 Ms Russell provided a copy of registered posting receipts which demonstrated that the original application had been posted to Mr and Mrs Parsons and to the Council. Mr Parsons acknowledged receipt of the directions on 4 December 2008. These directions expressly noted that the application was to be the subject of the on-site hearing which has now taken place and that, should there be any material upon which the respondents wished to rely in reply to the application, the material had to be filed and served (on the applicant and the local council) by the close of business on Friday at 19 December 2008. Mr Parsons indicated that, although he said he had not received a copy of the original application prior to receiving a copy forwarded by the tenant of the property (who had also been served as required), as a consequence he was unaware of the terms of the application at that time.

7 However, while he was, in his submission, unaware of the terms of the applications, he was clearly on notice of the fact that there was to be a hearing of the Court dealing with an application relating to trees on his wife's property; that she had an opportunity to provide material in response to the application; that she took no reasonable steps within the time provided for by the directions (or, indeed, at any time prior to the hearing), to file and serve that such material. We are satisfied that the applicant posted the application documents to Mr Parsons. We are so satisfied as a consequence of the registered post mailing certificate which has been provided to us. The Interpretation Act 1987, through s 76(1)(a) and (b), relevantly provides that service of a document may be effected by properly addressing, prepaying and posting a letter containing the document, and is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the fourth working day after the letter was posted.

8 As a consequence, although we have Mr Parsons’ statement that he did not receive the application, we are faced with the fact that we have proof of postage; we have an acknowledgement of service of the relevant directions notifying the hearing and the opportunity for provision of material in response; non-response by provision of any supporting material (either by the time specified or at any time prior to the hearing); the fact that Mr Parsons has indicated that, as late as the morning of the hearing, he had sought and obtained material from the real estate agent who manages the property coupled with no reason why such material which would clearly have been available at an earlier date had not been sought to be provided to the Court or to the applicant.

9 Under all of these circumstances, although Mrs Parsons may not have received the original application, we have concluded that there has been no prejudice to Mrs Parsons by permitting the hearing to go ahead as we have done.

10 Although we had some initial reservations about permitting Mr Parsons to tender a photograph of a section of tree branch said to be involved in the first vehicle compensation claim and which was taken by the managing agent, evidence given by Ms Russell has opened up this area; made the photograph relevant; and we would have denied procedural fairness to Mrs Parsons had we not permitted it to be tendered. As a consequence, despite the fact that there was no service of this material on the applicant, this photograph was admitted during the hearing.

11 A further matter which needs to be noted is the fact, that although a deal of material was apparently given to Mr Parsons by the managing agent, to which Mr Parsons made extensive reference during the course of the hearing, the managing agent did not attend the hearing and, as a consequence was not available for cross-examination by the applicant nor for questioning by the Court. No explanation was offered for this failure to have the managing agent present. As a consequence, although we are not bound by the strict rules of evidence, we consider it reasonable to draw the inference that any evidence from the managing agent would not have been of assistance to Mrs Parsons’ case.

12 In the front yard of 11 Balcolyn Street, Balcolyn, close to the western boundary there is the stump of a gum tree about 1 m north of the front boundary, and a mature Cypress tree about 6 m north of the front boundary. Mrs Parsons is the owner of 11 Balcolyn Street. Mr Parsons advised that the property was bought in Mrs Parsons' name in January 2002 as an investment, that it is a rental property, that all dealings and maintenance for the property have been in the hands of their real estate agent, and that they have full insurance cover for the property.

13 Ms Russell and Mr Ramsay are the owners of 13 Balcolyn Street, Balcolyn, the adjoining property to the west. Ms Russell has made an application under the Trees (Disputes Between Neighbours) Act 2006, for removal of the Cypress tree, and for compensation for damage to the house, dividing fence and motor vehicles, and her costs. The total compensation claimed is $7,078.53 not including an unspecified amount for lost wages.

14 The parties agree that a large branch broke off the Cypress tree on 6 September 2008. Mr Parsons stated that his real estate agent said the branch came out in a violent storm. He is not aware of any inspection of the Cypress tree by his real estate agent or an arborist since the branch broke off, nor since he had some branches pruned from the base of the tree in 2003. He stated that he would accept the opinion of an arborist regarding the need for removal of the tree.

15 Ms Russell claims that the house, the dividing fence, and her Daihatsu car parked on the driveway near the house, were damaged by the falling branch.

16 Ms Russell also claims that a branch fell from the gum tree in 2007, damaging her Toyota car that was parked on the driveway inside the front boundary, and that growth of the Gum tree damaged the dividing fence. The Gum tree has been cut to a stump.

17 Mr Parsons argued at the hearing that Ms Russell’s claims were not substantiated.

18 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

Has the tree caused damage to the applicant's property ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?

19 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

The issues

20 The issues in this case are:

• Likelihood of risk of injury from the Cypress tree;
• Damage caused by the falling branch of the Cypress tree, and the related compensation claims;
• Damage caused to the dividing fence by the trunk of the Gum tree, and the related compensation claim;
• Damage caused to the Toyota car by the branch of a Gum tree, and the related compensation claim;
• Compensation claim for cost of obtaining quotations, cost of Court application, and value of lost wages.
Likelihood of risk of injury from the Cypress tree

21 The Cypress tree is a mature tree about 12 m high with a trunk diameter of about 400 mm. We observed a large scar where the fallen branch had broken from the north-western side of the trunk at about 3 m above ground level.

22 It is our opinion that the branch failed in a storm due to included bark at its junction with the trunk. We observed included bark in a furrow for about 2 m above the base of the tree on the southern side, and included bark that is likely to be a serious structural weakness at a major fork about 5 m above the ground. We also observed that the power line providing electricity to the property is in contact with the Cypress tree.

23 We find that since the Cypress tree has lost a large branch and has a gap in its canopy, it is likely to fail during a storm at other points of included bark. Also, such failure would cause a large part of the tree to collapse, possibly bringing down the house powerlines. The tree is located in the front yard adjacent the carport, near the driveway and house on 13 Balcolyn Street, and about half its own height from the road reserve. On that basis we find that the tree is likely to cause injury, thus meeting the test in s (10)(2)(b) of the Act and we will order its removal.

Damage caused by the falling branch of the Cypress tree, and the related compensation claims

24 We are satisfied that the branch shown in the applicant’s photographs, lying across the dividing fence, the front garden, brick retaining wall and a white car in the driveway is the fallen branch from the Cypress tree. Although the branch is not resting on the roof of the house in any photograph, we observed photographs showing the front guttering of the house bent down, live foliage of the Cypress tree in the guttering, and cracked tiling at the base of a column that supports the front section of roof. On that basis we find that the Cypress tree caused damage to the house and meets the first test in s (10)(2)(a) of the Act.

25 With regard to Ms Russell’s claim for compensation for damage to the house, we note her claim is for the $300 excess payment on her home insurance claim, not for the whole cost of damage. Even so, there would be no reason for us to order any compensation unless Mrs Parsons had been given adequate notice that damage was likely, or that she should have been aware that the condition of the Cypress tree was such that it was likely to cause damage.

26 Ms Russell claimed at the hearing that she approached the real estate agent regarding branches growing from near ground level on the north-western side of the Cypress tree, as these were pushing against the fence. Mr Parsons agreed that the real estate agent had received such a request and had the branches removed within 18 months of purchase of the house. On that basis we conclude that the branches were removed by mid 2003. He also stated that he expected that the arborist who removed the branches would have inspected the tree at that time. We have not been provided with any statement or record from the real estate agent, so we do not know if the tree was inspected at that time, or if it was, what was observed.

27 Ms Russell also claims that she contacted the real estate agent for Mrs Parsons’ property about two years ago regarding the height of the tree, mess created by its leaves, and concern that the whole tree might ‘go over’. She says that a representative of the real estate agent came to the property at her request, but that the person no longer works for the real estate agent. Mr Parsons claims that his real estate agent has no record of these complaints, but we are mindful of our introductory comments that the real estate agent was not present at the hearing, and Mr Parsons has not provided any written evidence by the real estate agent in support of this claim.

28 We have given greater weight to Ms Russell’s evidence as it is first hand, and on that basis find that adequate notice was given regarding the tree. The failure of the large branch in September 2008 supports her concerns.

29 On this basis we uphold Ms Russell’s claim for compensation of the $300 excess that she paid to have repairs to her house carried out by her insurer.

30 On the same basis we uphold Ms Russell’s claims for compensation for damage to the dividing fence and the Daihatsu car which was caused by the falling branch of the Cypress tree.

31 With regard to the fence, we will order compensation for the cost of repair to that section of fence, to be paid after completion of the repair, and that such order will lapse if the repair is not completed by 20 April 2009. We note that the quotation for repair of the fence by All Style Fencing includes repair to a section beside the Cypress and a section beside the Gum tree, but does not itemise the cost for each of the two sections. However, on the basis that the sketch on the quotation shows two roughly equal lengths of fencing repair, we will order that the compensation be half the quoted total of $1,650. Therefore payment of $825 will be ordered, to be paid within 30 days of being given a copy of the receipt for the completed repair.

32 We note that at the hearing Ms Russell advised that the Daihatsu car had been sold unrepaired, for about $1,500 less than it would have brought if repaired. She sought leave to amend her claim down from the quoted repair cost of $3,278.33 to $1,500. Leave was granted on the basis that the amendment was a lesser claim on Mrs Parsons, and Mr Parsons gave his agreement.

33 With regard to damage to the Daihatsu car, s 10(2) of the Act states:

The Court must not make an order under that 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,…..

34 We are satisfied that the car is ‘property’ as discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 [para 167]. Therefore we will order compensation of $1,500 for damage to the Daihatsu car. At the hearing Mr Parsons advised that there would be no difficulty with making compensation payment within 60 days. On that basis we will order the payment be made by 20 March 2009.

The Gum tree

35 Ms Russell claims that damage to the Toyota car and one section of the dividing fence was caused by the Gum tree, but she did not include that tree at s 2 on the application form. We consider that omission to be a matter of form rather than substance as the tree is shown on the sketch plan attached to the Supplementary Form Damage to Property, and is identified as an ironbark tree in her letter dated 10.09.08 to Mr and Mrs Parsons which forms part of her application. With Mr Parsons’ agreement, we have included the Gum tree that he identified as a Eucalyptus nicholii.

36 We observed that the Gum tree has been cut off to a stump approximately 1 m above the ground, and that the stump had produced bushy regrowth about 0.5 m long that is now dead. Although the tree was cut down prior to the making of the application, we find that the stump and its roots are a significant part of the tree, and in this case are a tree ‘…that is situated on adjoining land’ for the purposes of s 7 of the Act.

37 At the hearing Mr Parsons tendered a page from his real estate agent concerning damage to the Toyota car. Although the actual day of the date written on the page was torn off, the month and year was visible as August 2007, and there was a hand written note that that was the date of the incident.

38 Ms Russell stated at the hearing that a few months prior to the damage, she advised the real estate agent that the tree should be removed as it was half dead and branches were falling off, and that it was pushing on the fence. Mr Parsons agreed that the real estate agent was aware of Ms Russell’s request, but said it may or may not have been made prior to the damage to the Toyota. Mr Parsons also stated that he had received continual complaints about the Gum tree. We find therefore that Mrs Parsons had been given adequate notice regarding likely damage by the tree.

Damage caused to the dividing fence by the trunk of the Gum tree, and the related compensation claim

39 We observed that a section of the metal fence is pushed out of alignment and that the stump of the Gum tree is in contact with that section. We are satisfied that the Gum tree caused the damage to the fence, thus meeting the first test in s 10(2)(a) of the Act. We consider that the damage was caused by the slow increase in the girth of the tree trunk. As the tree is located within 1 m of the front boundary, adjacent the driveway which is also the pedestrian entrance, we find that Mrs Parsons or her real estate agent should have observed the likelihood of damage, and had ample time to manage the tree in order to avoid the damage. We also note as previously mentioned that Mr Parsons stated that he had received continual complaints about the Gum tree, and we consider that any person looking at the tree should have seen the proximity and later contact of the tree with the fence. On that basis we will order compensation for the cost of repair to that section of fence, to be paid after completion of the repair, and that such order will lapse if the repair is not completed by 20 April 2009. As reasoned previously, we will order that the compensation be half the quoted total of $1,650 therefore payment of $825 will be ordered, to be paid within 30 days of being given a copy of the receipt for the completed repair. We will also order cutting back or removal of the stump to at least 100 mm clear of the proper alignment of the fence, so that the fence can be repaired.

Damage caused to the Toyota car by the branch of a Gum tree, and the related compensation claim

40 In relation to damage to the Toyota car, we accept Ms Russell's evidence that the vehicle was parked on the driveway within her property. We note her claim that a large branch at least one metre long and 40 mm thick at one end fell from the Gum tree onto the car, denting the roof.

41 We also note that Mr Parsons tendered a page from his real estate agent’s records, which we referred to previously. That page has a photograph of a small branch leaning against a vehicle, and hand written notes that the photo was taken by Don Ayres of Cooranbong First National (real estate) and “This twig does not match the tree that it is claimed to have come from.”

42 Ms Russell on looking at the photo agreed that the branch in the photograph is the same branch that she claims damaged her car but that there were more side branches on it when it fell on to her car.

43 We cannot compare the branch in the photograph with those of the tree as the tree has been removed. However, we note that the branch appears to be about one metre long, no more than 20 mm thick at its thickest end, and about 5 mm thick at the other end.

44 We observed that the damage to the Toyota car is a very small dent in the roof near the driver's side, rear door, and that the paint does not seem to be scratched. We note that the only quotation is an estimate prepared by Rathmines Smash Repairs, for a total of $1,014.20. We find this to be an unreasonably expensive quotation for the damage that we observed. We consider that Ms Russell should have investigated other, cheaper forms of repair such as ‘paintless’ dent removal as used for similar small dents and repair of hail damage.

45 On the balance of probabilities we accept Ms Russell’s claim that the dent in the roof of the Toyota car was caused by a branch falling from the Gum tree. However, as Ms Russell has provided only one quotation, and we find that unacceptable, we do not have alternative costings to consider. On that basis we refuse the claim.

Compensation claim for cost of obtaining quotations, cost of Court application, and value of lost wages

46 In relation to Ms Russell's claims for compensation of $650 for the cost of obtaining quotations, $186 for Court application costs, and an unspecified amount for lost wages; we advise that Commissioners do not have the power to order payment of expert reports, application fees to the court, and other expenses including personal expenses. Claims for these costs must be made by a notice of motion which is heard and determined by a Judge.

Orders

47 The application is upheld in part, and the Court makes the following Orders that apply to 11 Balcolyn Street, Balcolyn:

1. The Cypress tree situated on the western side of the front yard shall be removed;
2. The stump of the Gum tree situated on the western side of the front yard shall be removed or cut back to be at least 100 mm clear of the proper alignment of the dividing fence;
3. The works in a. and b. above shall be completed by 20 March 2009, at Mrs Parsons’ cost, and carried out by an AQF Level 3 arborist with suitable insurances. Ms Russell shall grant access over her property for the contractor to carry out the work. The work shall take place at reasonable times, on reasonable notice, and Ms Russell may supervise activities on her property;
4. Mrs Parsons shall pay $1,500 compensation for damage to the Daihatsu car, to Ms Russell by 20 March 2009;
5. Mrs Parsons shall pay $300 compensation for the home insurance excess, to Ms Russell by 20 March 2009.
6. Mrs Parsons shall pay $1,650 compensation for the cost of repair of the two sections of the fence damaged by the Cypress tree and the Gum tree, to Ms Russell within 30 days of being given a copy of the receipt for full payment of the completed repair, but this order will lapse if the repair is not completed by 20 April 2009.

___________________ ___________________

Tim Moore Peter Thyer
Commissioner of the Court Acting Commissioner of the Court