Strata Plan 53247 v Hammond
[2016] NSWLEC 1642
•23 December 2016
Land and Environment Court
New South Wales
Medium Neutral Citation: Strata Plan 53247 v Hammond [2016] NSWLEC 1642 Hearing dates: 23 December 2016 Date of orders: 23 December 2016 Decision date: 23 December 2016 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage or injury not likely; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Category: Principal judgment Parties: Strata Plan 53247 (Applicant)
Peter Hammond (Respondent)Representation: Ian Smith, agent (Applicant)
Peter Hammond, litigant in person (Respondent)
File Number(s): 236234 of 2016
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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The owners of Strata Plan 53247 (‘the applicant’) in Woolloomooloo have applied to the Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the removal of three neighbouring palms. Mr Peter Hammond (‘the respondent’) owns the neighbouring property on which the trees grow.
The situation
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Three Cocos Palms approximately 16 metres tall grow close to Mr Hammond’s rear boundary. The applicant’s apartment block to the north is approximately two metres from the boundary. The ground floor apartment, and its small external paved courtyard extending to the boundary, are at a lower level than the respondent’s garden.
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A large fig tree grows on the property to the east of Mr Hammond’s. Its broad crown spreads beneath the crowns of the three palms and extends over the applicant’s property.
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The palms appear to be healthy and structurally sound. Some fronds and fruits from the palms could be seen on the ground in both the applicant’s and the respondent’s properties.
Applicant’s reasons for wanting the trees removed
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The applicant contends that the trees are likely to cause damage to its property and injury to someone on the property.
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The applicant says that dead fronds that fall from the palms are heavy and fall from a considerable height, and may injure somebody.
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The applicant says that berries and other debris fallen from the palms creates a trip hazard in the small courtyard of the ground floor apartment.
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The applicant contends that there is too much debris to clean up and that if debris blocks the courtyard’s drain, the courtyard floods and water flows into the apartment.
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The applicant says that the owner of the ground floor apartment is elderly, has to make regular visits to clean up the courtyard, and has lost income because it is difficult to keep long-term tenants in such a situation.
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The applicant argues that debris falls from the palms onto the building’s roof and into guttering, blocking gutters, requiring too much maintenance.
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The applicant contends the palms prevent sufficient light from entering the apartment, especially the ground floor apartment.
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The applicant contends that the respondent previously agreed to removal of the palms, but then would not remove them.
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The applicant says the trees provide no privacy for the respondent as their crowns are above sight lines between the properties.
The respondent sees no need to remove the trees
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Mr Hammond says the trees have probably been there for 40 years or more, and have never caused damage or injury. He argues nothing has changed, and so they are unlikely to do so now.
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Mr Hammond contends that maintenance of the applicant’s property is the applicant’s responsibility.
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Mr Hammond argues that the trees provide a sense of privacy even if they do not directly screen sight lines between the properties.
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Mr Hammond says he had earlier agreed to the trees’ removal if the applicant paid for the work. The applicant did not wish to pay, so the trees were not removed.
Findings
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The application relates to possible damage or injury in the future. The applicant does not claim that the trees have damaged the property.
Damage or injury from falling fronds
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Dead fronds fall from the three palms. They fall from a height of some 15 metres. On the evidence of both parties, falling fronds have never caused damage or injury. Branches from the neighbouring fig tree spread beneath the palms’ crowns, so that dead fronds are likely to have their fall slowed before they hit the ground.
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Beneath the palms, the garden area on Mr Hammond’s property appears to have infrequent human presence. According to the applicant’s own evidence, the courtyard of the ground floor apartment receives little use.
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Considering the above, I am not satisfied that falling fronds are likely to cause any damage or injury.
Berries and other debris from the palms
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The applicant provided no evidence that berries or other debris are likely to directly cause damage or injury as they fall. Mr Smith submits: that berries and other debris lying on the ground may be a trip hazard; that berries and debris might block the drain and cause flooding; that insects breeding in the berries are a nuisance; and that gutters blocked by debris may overflow.
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The concerns raised by the applicant may result from the presence of berries and debris from the palms. Damage (or injury or nuisance) caused by insects does not fall within the Court’s jurisdiction, even if insects are breeding in parts of or from the trees. If damage were to result from tree parts, for instance berries blocking a drain, this could be reasonably avoided through routine maintenance. The Court established the following principle at (20) in Barker v Kyriakides [2007] NSWLEC 292:
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.
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The situation regarding fallen debris in this matter is no more burdensome than I have viewed in many other cases, so I see no reason to veer from this principle here.
Light
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If the palms contribute to shading of apartments, this is not ‘damage’. This would not enliven the Court’s jurisdiction under Part 2 of the Trees Act.
Orders
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I find that the three palms are unlikely to cause damage to the applicant’s property in the near future, and are unlikely to cause injury to any person. The Court has no jurisdiction to make orders. As a result:
The application is dismissed.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 29 December 2016
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