Russell v Primrose

[2009] NSWLEC 1298

Land and Environment Court

of New South Wales

CITATION:	Russell v Primrose [2009] NSWLEC 1298
PARTIES:	APPLICANT A Russell RESPONDENT J Primrose
FILE NUMBER(S):	20266 of 2009
CORAM:	Moore SC - Dixon C - Thyer AC
KEY ISSUES:	TREES (NEIGHBOURS) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Barker v Kyriakides [2007] NSWLEC 292
DATES OF HEARING:	5 August 2009
EX TEMPORE JUDGMENT DATE:	5 August 2009
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
DIXON C
THYER AC

5 August 2009

20266 of 2009 Russell v Primrose

JUDGMENT

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

1 COMMISSIONERS: Mr Russell has lodged an application to Court pursuant to the Trees (Disputes Between Neighbours) Act 2006, concerning two Liquidambar trees located at the street frontage end of his neighbour's property. The applications are based on a variety of tests under s 10(2) of the Act (both under s 10(2)(a) and 10(2)(b)).

2 It is pertinent to commence this decision by noting that, although these proceedings are conducted with a significant degree of informality, they are nonetheless proceedings of a Court and that an applicant is under the duty to establish to the Court, on the balance of probabilities (that is the civil burden of proof – to the degree of comfortable satisfaction necessary for the purposes of our decision-making consistent with the decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) that an appropriate basis for granting an application has been established. Having noted that, it is appropriate then to turn to consider each of the bases upon which Mr Russell seeks relief with respect to each of the trees.

3 We commence with the tree that is further from the street. We start with those matters raised by Mr Russell that are closest to his house with respect to this tree. The first of them is his concern that he has had to remove tree roots from his house sewer line and that those roots have come from the closer of the two Liquidambar trees. We have his uncontested evidence that he has removed those roots from his sewer and we accept that evidence. He has provided us with no evidence to prove that the roots that he has removed from the sewer are roots from the Liquidambar.

4 There are at least three other trees closer to the point from his sewer line where the roots were removed that could have been the provider of roots in that sewer line (it being a sewer line, on his evidence, that is of a terracotta nature that has, necessarily, joints in it that deteriorate over time). We are not satisfied (and have no evidentiary basis that would permit us to be satisfied) that the roots that he has removed from his sewer line are roots from the Liquidambar. He has thus not satisfied the burden of proof on that element of his claim.

5 Second, there is a root exposed between the deck in the vicinity of his house and his swimming pool pump box. This root is above the paved surface (having been exposed by the removal of pavers). This root is one which he has severed between a retaining wall and the boundary with Ms Primrose's property. At the point where the root has been severed, we have noticed the commencement of minor epicormic growth on the side of that root closest to his property – it being a root which runs towards the retaining wall and then turns towards the rear of his property. Although this is not determinative, it is consistent with that portion of the root being the remaining living portion of the root and the portion of the root close to the boundary with Ms Primrose’s property closer to the Liquidambar tree being the dead portion of the root.

6 Second, there are at least two other trees close in the vicinity of that root, which trees are potentially the source of that root rather than the Liquidambar. Mr Russell has provided no DNA evidence or any other proof of that root comes from the Liquidambar. We cannot be satisfied, on the basis that we are required to be so satisfied, that that root is one which has come from the Liquidambar.

7 We turn now to the question of cracking and the rust damage to the base of the swimming pool. There is no doubt that there is a degree of rust (potentially significant and potentially damaging) visible on the base of Mr Russell's swimming pool. We have been provided by Mr Russell with an expert report from Ms Zuzana Pardel, a structural engineer – which report we have admitted over objections from Ms Primrose. We have admitted this report because we consider that the report should be admitted to show that it does not provide any assistance to Mr Russell in the case that he is presenting to us.

8 Ms Pardel expresses a professional opinion, at the foot of the first page of this one a quarter page report, where there is no evidence contained in the document of the facts and assumptions that are used for the foundation of the report. Indeed, one of the assertions contained in the report, in the final sentence of the second paragraph, is that “Approximately half a year ago the roots surfaced at positions where they are now and the structural damage started to show”. It is simply incomprehensible to suggest that the roots that are described in that report surfaced half a year ago as they are clearly significantly older than that and, indeed, it is Mr Russell's own evidence that he has exposed them (and in one case severed one of the roots) a significant period of time earlier than that described in this entirely inadequate professional document. This report provides no proof of tree damage to the pool.

9 Mr Russell also complains about the fruits and the leaves and small twigs and branches and the like falling as the detritus from this tree into his property and clogging the swimming pool filter box thus leading to a necessity to clean the pool on a regular basis. He has shown us a large quantity of leaves, fruits and the like from the tree, that he has collected over a period of time, falling from Ms Primrose’s Liquidambar trees.

10 As the Court published, in the case of Barker v Kyriakides [2007] NSWLEC 292, a tree dispute principle that says, effectively, for those who have the environmental and aesthetic benefits of trees in urban areas, there is a concomitant necessity to undertake ordinary expectable routine maintenance of one's own property and that the mere falling of detritus such as fruits and nuts leaves small twigs or minor branches and the like will not be a basis for ordering an intervention with or removal of a tree. There are no circumstances here warranting departure from that principle.

11 As a consequence, although we accept that the jurisdictional test under section 10(2)(a) is satisfied with respect to the Liquidambar at the rear of the two Liquidambars on Ms Primroses property, as a matter of discretion we are not prepared to order any intervention with or removal of a tree on the basis of its deposition of detritus on to Mr Russell's property.

12 The final matter, relating to Mr Russell's property and this tree, concerns a root that we are prepared to accept, on the basis of its visible running direction, is likely to have come from the Liquidambar. It has lifted a small number of tiles in the corner of his swimming pool surround the closest to the street. His removal of those paving bricks has ensured that any trip hazard that might be occasioned has been removed. We are satisfied that the lifting of those pavers satisfies the first of the tests under s 10(2)(a) and it would also have satisfied, as a trip hazard, the test in s 10(2)(b) as being a risk of injury to a person. However, that risk has been rectified by the removal of those pavers and, as a matter of discretion, we are satisfied that the damage is so minor as not to warrant any order for intervention with or removal of the tree or any rectification works to the paving.

13 We finally turn to the Liquidambar closest to the street. The complaint about it is that it may interfere with three communications lines to Mr Russell’s house. We have closely examine the nature of the branches and their proximity to those lines. We are not satisfied that there is any likely risk of damage to those lines in the next 12 months, there being no evidence, in Mr Russell's own words that there has been any significant branch dropped from either of the Liquidambar trees. The tests under s 10(2)(a) are therefore not satisfied.

14 Finally, to the extent that this more frontal of the two Liquidambar trees deposits material in his property, as earlier described application of the tree dispute principle in Barker v Kyriakides causes us to decline any remedy on that basis.

15 As a consequence of all the foregoing, the application is refused.

Tim Moore
Senior Commissioner

Susan Dixon
Commissioner of the Court

Peter Thyer
Acting Commissioner of the Court