Tadros v New South Wales Land and Housing Corporation

[2022] NSWLEC 1524

Land and Environment Court

New South Wales

Medium Neutral Citation:

Tadros v New South Wales Land and Housing Corporation [2022] NSWLEC 1524

Hearing dates:

23 May 2022

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – whether neighbouring trees have damaged the applicant’s property – whether trees are likely to cause damage or injury – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Category:

Principal judgment

Parties:

Sandra Tadros (Applicant)
New South Wales Land and Housing Corporation (Respondent)

Representation:

Counsel:
S Tadros (Self-represented) (Applicant)
K Lloyd (Respondent)

Solicitors:
McCabes Lawyers (Respondent)

File Number(s):

2021/361589

Publication restriction:

No

Judgment

Background to the application

1. COMMISSIONER: Sandra Tadros (the Applicant) lives at her Roselands residential property with her family. Neighbouring land is owned and managed by the New South Wales Land and Housing Corporation (the LAHC, or the Respondent). Three trees on the Respondent’s land are a short distance from the Applicant’s rear fence:

1. an 8-metre Swamp Oak (Casuarina glauca) approximately 3 metres from the Applicant’s rear boundary;

2. a 20-metre Spotted Gum (Corymbia maculata) approximately 4 metres from the boundary; and

3. a 24-metre tall Spotted Gum approximately 5.5 metres from the boundary.

2. Ms Tadros has complained to the LAHC about the trees for several years, often receiving no response, or a response that provided no clear resolution. In December 2019 the LAHC removed a Swamp Oak that grew close to the boundary fence, but Ms Tadros wants the remaining three trees removed. In December 2021, Ms Tadros applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the LAHC to remove the three trees and to pay her $19,281.82 to rectify damage to her property. Ms Tadros’ claim includes recovery of costs incurred in making her application to the Court. Commissioners of the Court do not have the power to award costs.

3. The LAHC engaged Danny Draper, arborist of Urban Tree Management, to assess the trees and prepare a report, which is dated 4 May 2022, 19 days before the hearing. The trees were pruned prior to the hearing.

4. The final hearing took place onsite, allowing me to view the trees, Ms Tadros’ property and the surrounding environment.

Reasonable effort to reach agreement

5. Before making orders under Pt 2 of the Trees Act, the Court must be satisfied at s 10(1) that the Applicant has made reasonable effort to reach agreement with the trees’ owner.

6. Due to the apparent quiescence that the LAHC showed to the many complaints they received from Ms Tadros, the eventual effort required by her might be considered unreasonable. Ms Tadros was justifiably vexed by the silence or tardy responses she received. She complained over several years before the LAHC took any action. I am satisfied that Ms Tadros made more than a reasonable effort to reach agreement (s (10(1) of the Trees Act).

Have the trees caused damage?

7. Before making orders, the Court must also be satisfied at s 10(2) of the Trees Act that the trees have caused, are causing, or are likely in the near future to cause, damage to the Applicant’s property, or are likely to cause injury to a person. If the tests at s 10 are satisfied, the Court must consider the relevant matters at s 12 before making any orders enabled by s 9 of the Trees Act.

8. The test at s 10(2) of the Trees Act must be considered for each tree separately. Ms Tadros alleges that the trees have caused damage that includes:

• damage to her boundary fence;

• damage to the surface of the back yard;

• damage to a hedge that grew along her side of the boundary;

• damage to the steps and deck at the rear of her dwelling;

• shading of garden and solar panels; and

• damage to sewer or stormwater pipes running across her property.

Fence and ground

9. Ms Tadros submitted that roots of the trees have damaged the wooden paling fence along her rear boundary, and the ground in her back yard. She stated in her affidavit (at pars 60 and 61):

“I understand that, given the size of The Trees, there is currently overgrown roots which are affecting the fence line of My Property and the Neighbouring Property. The roots coming through the ground have caused the ground to become uneven and the fence has been raised.

On one occasion, in approximately September 2019, I noticed that The Trees' roots together with consistent branches dropping onto the fence line, the fence line had become damaged, and I did not believe it to be structurally sound.”

10. Regarding the ground, there is no evidence that property on the land has been damaged: see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) at [166]. If roots have caused the ground surface to be slightly uneven, this could be easily remedied by top-dressing, so that even if this element of the application satisfied the test at s 10(2) of the Trees Act, orders would not be made.

11. Turning to the fence, Ms Tadros’ statement attributed some displacement of the fence due to a combination of roots and falling branches, but she then stated (at par 62):

“On 15 January 2021, the gardening contractors engaged by the Respondent was witnessed mowing the lawn of the property on 13 Violet Street Roselands. He was witnessed riding the mower close/on the boundary fence which resulted in the fence being broken. This was witnessed in person and was recorded on the surveillance cameras on My Property. Set out at page 134 is a true and correct copy of the video footage taken on 15 January 2021 of the fence being damaged.”

12. The principal damage to the fence, resulting in the need to replace it, was caused by a contractor using a ride-on mower. This damage was not caused by the tree, so is not damage that can be remedied under the Trees Act. Evidence provided to the Court does not demonstrate, to the level of satisfaction required at s 10(2) of the Trees Act, that any of the trees caused damage to Ms Tadros’ fence.

Hedge

13. Ms Tadros had a hedge along her side of the rear boundary. She removed it some time ago after debris from trees ruined it. Debris included twigs and foliage. Her photographs show most of that debris to be from a Swamp Oak, one of which was close to the boundary and overhung Ms Tadros’ property. That tree has now been removed. It appears that any damage to the hedge could have been avoided by removing debris on a regular basis, as per the Court’s tree dispute principle established in Barker v Kyriakides [2007] NSWLEC 292 (Barker) at [20]:

“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.”

14. Tree-related maintenance required at Ms Tadros’ property is no more onerous than that seen in many other tree disputes. Relying on the principle in Barker, I will not make any orders on this element of the application.

Steps and deck

15. Ms Tadros submitted that the trees have damaged parts of her property at the rear of the dwelling, including the deck and steps. Photographs show debris from the trees has sometimes fallen onto the deck and steps, but no damage was observed. The issue of cleaning up debris falls within the principle in Barker, included above in this judgment. There was no evidence that roots have damaged these parts of Ms Tadros’ property. No orders will be made on this element of the application.

Shading

16. Ms Tadros submitted that shade from the trees prevents her growing plants in her garden and interferes with the operation of solar panels on her roof. These issues might be considered a nuisance, but do not satisfy the requirement at s 10(2)(a) regarding damage: see Robson at [173].

Sewer or stormwater pipes

17. Ms Tadros has called Sydney Water several times since May 2018, when they first came to clear pipes. According to Sydney Water’s report, tree roots were found in the pipes. However, evidence adduced in these proceedings does not permit me to make orders. Firstly, if roots were in pipes, it is not clear to which tree those roots belonged. I cannot order interference with three trees when only one of those trees, or even another tree, might have roots in the pipe. Secondly, it is not clear if tree roots damaged a pipe, or simply grew into a pipe that was already damaged by other factors. Ms Lloyd, counsel for the Respondent, pointed out that the Applicant has not undertaken the investigation required on this element of her application, or other elements involving property damage.

Are the trees likely to cause damage or injury?

18. For his report, Mr Draper undertook a risk assessment of the three trees. In his report, Mr Draper numbered the trees in reverse order to that shown in the application and above at [1]. Mr Draper did not observe any faults that might lead to whole tree failure. He found no significant defects in Tree 1 (Swamp Oak) or Tree 2 (Spotted Gum). The risk of damage or injury caused by those two trees was low, so no works were recommended. He found large deadwood present in Tree 3 (the taller Spotted Gum, ‘Tree 1’ in his report). Dead branches might fall onto pedestrians, parked cars or the fence, with a moderate risk of causing damage or injury. He observed no other defects in Tree 3. Mr Draper found all three trees “…appeared viable and stable.”

19. Mr Draper recommended pruning of Tree 3 to remove deadwood from its crown. Prior to the hearing, Tree 3 was pruned, with all dead branches removed, other than small branches or twigs.

20. My own observations during the onsite hearing confirmed Mr Draper’s findings. From a ground-based inspection, I saw no significant defects in the three trees. Only Tree 2 had any branch overhanging Ms Tadros’ back garden, but the overhanging branch was structurally sound and unlikely to fall in the foreseeable future.

21. Ms Tadros stated that a branch once fell and struck her head, but she did not say from which tree the branch fell. The branch fell before Tree 3 was pruned. I find that it is now unlikely that branches will fall from the three trees, or that their stems or roots will fail, within the foreseeable future. Therefore, I find it unlikely that any of the trees will cause damage to the Applicant’s property in the near future, or that they will cause injury to a person.

22. Ms Tadros may find twigs, leaves and other debris fall from the trees into her property, requiring some cleaning up, but the Court’s jurisdiction under Pt 2 of the Trees Act is limited to consideration of damage and injury only.

Consideration of relevant matters

23. With no cause for orders at s 10(2) of the Trees Act, there is no need for me to consider the matters set out at s 12 of the Trees Act.

Orders

24. As a result of the foregoing, the Court orders:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 28 September 2022