Stevenson v Simpson

[2017] NSWLEC 1533

Land and Environment Court

New South Wales

Medium Neutral Citation:	Stevenson & anor v Simpson & anor [2017] NSWLEC 1533
Hearing dates:	22 September 2017
Date of orders:	22 September 2017
Decision date:	22 September 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] : Damage to property; potential injury; sufficiency of evidence; debris
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
Category:	Principal judgment
Parties:	Glenn Stevenson (First Applicant) Enid Stevenson (Second Applicant) Ian Simpson (First Respondent) Jacinta Simpson (Second Respondent)
Representation:	Applicants: G & E Stevenson (Litigants in person) Respondents: I Simpson (Litigant in person)
File Number(s):	2017/193014

JUDGMENT

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

1. COMMISSIONER:   The applicants own a property in Eleebana, in the Lake Macquarie local government area. They contend that a Callistemon growing on the respondents’ adjoining property has caused, and could in the near future cause damage to property on their land or injure someone if a branch fell or was inexpertly removed.

2. The applicants have applied under s 7 Part 2 of the Trees (Disputes Between neighbours) Act 2006 (Trees Act) for orders seeking the removal of overhanging branches by an experienced and qualified arborist. They are also seeking orders requiring the respondents to pay for the cleaning of their carport roof, guttering and downpipe and the clearing of the associated stormwater pipe. A quote of $448.00 for this work is included in the application claim form.

3. Additionally, the applicants are seeking the reimbursement of the court filing fee. In regards to this request, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.

4. The applicants filed supplementary material seeking to extend the orders to require the respondents to remove a pipe and rope structure from the dividing fence and repair the fence allegedly damaged during the installation of the pipe and rope structure. This request has nothing to do with the tree the subject of the application and is thus beyond the Court’s jurisdiction under the Trees Act.

5. The respondents do not wish to remove the tree as it attracts birds and other wildlife and screens the applicants’ carport from their deck.

6. In applications under Part 2, the key jurisdictional test is found in s 10(2). This 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.

7. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.

8. As the applicant is partly concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.

9. The tree is a mature Callistemon viminalis (Weeping Bottlebrush) growing near the common side boundary between the parties’ properties. Part of the canopy overhangs the applicants’ carport. Some overhanging branches have been removed by the first respondent however the task could not be completed as the applicants would not permit the respondent access to the carport roof because of their concerns that should there be an accident it may void their insurance.

10. In regards to the alleged damage, in their application claim form the applicants state:

• The carport roof is consistently covered in leaf foliage and small branches;

• The carport roof is likely to be damaged by the overhanging tree limb if it were to break, or cut/removed by unqualified persons;

• The leaves that fall from the neighbours’ tree have extensively blocked the gutters on the three sides of the carport. There are now small plants growing in the gutters, as the gutters are full of decomposed foliage;

• The fibre cement ceiling under the carport has pulled away and sagged. This is caused by the rain water unable to drain away, due to extensive leaf blockage in the gutters. This water flows back onto the fibre cement ceiling and can spill onto our car.

• The underground drain [from the downpipe] to the street is blocked with silt and possibly roots due to the close proximity of the neighbours’ tree.

11. Regarding potential injury, the applicants state:

• If the large overhanging tree limb were to break and fall, it would seriously injure or kill any person under it;

• There is no safe way for an unqualified person to remove the tree.

• Any attempt by an unqualified person to remove the tree would risk serious injury or death.

12. The second applicant drew my attention to a letter included in the application claim form which she wrote to the respondents on 20 March 2017, some six months ago. The letter mentions a conversation with the first respondent some eight months previously in which his attention was drawn to the tree blocking gutters and the associated back up of water into the carport ceiling. The letter also states that several years ago, water entered the house and caused damage to the walls and carpets.

13. During the on-site hearing it was confirmed that the previous damage occurred about six years ago; it was also established that the respondents were not told of this at the time.

14. The applicants are concerned that the build-up of leaves may lead to the same problem.

15. During the on-site hearing I inspected the carport roof and guttering from a ladder and from the roof. I observed accumulated leaf and other plant debris, including material from the Callistemon, in the gutters and on the roof. I noted a small crack in the corner of one tile. I saw that one ceiling panel beneath the carport roof had dropped by a few millimetres at one end. I saw no staining of the ceiling panel in that section.

16. The exterior of the guttering and the downpipe appeared to be in good order, Apart from the small crack in one tile, the tiled roof also appeared in very good condition. I was informed that the roof and guttering were original and about 30 years old.

17. The first applicant stated that a tile had been broken during the removal of some of the overhanging branches however that particular tile was not obvious. That damage, if indeed there is damage, was incidental to the pruning and not due to the failure of the branch itself.

18. When asked, the first applicant stated that the last time the gutters were cleared was about 18 months ago. Prior to then he stated that he used to clear them about every 6 months but stopped due to concerns about his safety on the roof and that he was generally fed up with having to clean up debris from the neighbours’ trees.

19. The applicants have not adduced any evidence to prove that the Callistemon has damaged the stormwater pipe, or that it is likely in the near future to do so.

20. While I am not satisfied that any damage has occurred to the guttering, the downpipe, the carport roof or the ceiling panel as a consequence of the leaves, or is likely in the near future to occur, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter.

21. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paragraphs [168] to [173] discusses ‘damage’ in general. In this discussion, his Honour specifically noted (at [171]) that:

171 However, 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 (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour’s 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.

22. Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that:

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 ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

23. There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter. The applicants have not established that there are exceptional circumstances that would warrant the making of orders. The carport is single storey and in my view, the guttering is easily accessed by ladder and does not require access onto the roof in order to clear it.

24. The applicants have allowed the build-up of leaves despite being aware of the potential consequences of doing so. When recently notified of the problem, the respondents took some action.

25. In regards to the previous water damage, there is no evidence, such as a report from an insurance assessor, which might prove the causal connection between the respondents’ tree and the damage.

26. In the absence of any independent arboricultural opinion to the contrary, and with the arboricultural expertise I bring to the Court, I saw nothing that would lead me to conclude that the tree itself poses any foreseeable threat to any person.

27. In conclusion, on the evidence before me and with the benefit of the site inspection, I am not satisfied to the extent required by s 10(2) of the Trees Act that any orders for further intervention with the tree are warranted. Similarly, for the reasons given above, no orders will be made requiring the respondents to pay for the cleaning of the applicants’ property.

28. Therefore the Orders of the Court are:

1. The application is dismissed.

______________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 25 September 2017