Vickers v Rawson-Harris
[2016] NSWLEC 1617
•19 December 2016
|
New South Wales |
Case Name: | Vickers v Rawson-Harris |
Medium Neutral Citation: | [2016] NSWLEC 1617 |
Hearing Date(s): | 19 December 2016 |
Date of Orders: | 19 December 2016 |
Decision Date: | 19 December 2016 |
Jurisdiction: | Class 2 |
Before: | Fakes AC |
Decision: | Application dismissed |
Catchwords: | TREES [NEIGHBOURS] Damage to property; potential injury; sufficiency of evidence |
Legislation Cited: | Trees (Disputes Between Neighbours) Act 2006 |
Cases Cited: | Hinde v Anderson & anor [2009] NSWLEC 1148 |
Category: | Principal judgment |
Parties: | Kay Vickers (Applicant) |
Representation: | Applicant: K Vickers (Litigant in person) |
File Number(s): | 248748 of 2016 |
JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: The applicant purchased her Bellingen property in 2012. Growing at the rear of the adjoining property was, and still is, a mature Ficus obliqua (Small-leaved Fig). The respondent, who purchased her property 13 years ago thinks the tree is about 60 years old and possible self-sown; however, it is not possible to test that hypothesis.
The applicant contends that the roots of the Fig have blocked her sewer on two occasions and, unless the tree is removed, will do so again. She is also concerned that the roots may, at some time in the future, cause damage to the slab on which her house is built. Apart from the root damage, the applicant submits that limbs may fall from the tree, especially in storms, and injure her grandchildren who may be playing in the sand pit or cubby house which are located directly under the tree.
As a consequence, the applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the tree at the respondent’s expense. The applicant is also asking for reimbursement of the $968.00 she has spent on unblocking the sewer and pruning the canopy. The invoices in the application claim form show that in February 2014 and July 2016 a plumber removed roots from the applicant’s sewer. The other invoice is for pruning of the overhanging canopy in January 2015.
The respondent does not wish to remove the tree as she values it for the shade it affords her property, its visual amenity, and for the habitat it provides for local wildlife. The respondent has no objection to the applicant removing overhanging branches. She also stated that Bellingen Shire Council advised her that there was insufficient justification to remove the tree.
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.
As the applicant is 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/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.
Neither party provided any independent arboricultural evidence. With the arboricultural expertise I bring to the Court I observed the tree to be a healthy specimen with a structure typical of many figs. The tree comprises several stems, some with back inclusions; however I saw nothing that would leave me to conclude that the tree poses an unreasonable risk, at least in the foreseeable future.
The effect of the pruning is clear; perhaps 30% of the canopy has been removed from over the applicant’s property. The remaining overhanging branches appear normal.
While the applicant states in the application claim form that the canopy once interfered with her television antenna, there is now considerable distance between any branch and the antenna.
The applicant did not provide any evidence of any limb failure onto her property.
In regards to the sewer blockage, the plumbers’ invoices indicate that roots were removed in the vicinity of where the applicant’s sewer connects to the sewer main, which runs across the rear of the applicant’s property. While it is possible that the roots were fig roots, it is also possible the roots may be from a mature Magnolia growing on the applicant’s property between the sewer main pit cover and the applicant’s sewer pit cover. No roots had been kept and thus there was no opportunity to identify them. Similarly, there is nothing in the plumbers’ invoices to indicate whether there is a problem with the pipe or with the connection between the two pipes. Likewise there is no evidence of any damage to the slab or any evidence to suggest that this is imminent.
In the absence of any probative evidence, I cannot be satisfied to the extent required by s 10(2) of the nexus between the tree and the damage. 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…”.
Similarly, in regards to injury, there is no evidence that what the applicant fears is ever likely to eventuate. It appears that a previous owner of the applicant’s property built the sand pit and cubby house beneath the tree. While the applicant has built a structure above them to afford some extra protection, it may be possible to relocate the play areas to somewhere else on the applicant’s relatively large lot.
Regarding the claim for compensation, given the lack of evidence, I cannot order reimbursement for the plumbing costs. In respect of the pruning, it seems that the applicant undertook this on her own volition as an action permitted by Bellingen Shire Council.
Having found s 10(2) not satisfied, the Court has no power to make any orders for any intervention with the tree.
As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be ‘changed circumstances’ and fresh evidence.
However, as a consequence of the foregoing, the Orders of the Court are:
(1)The application is dismissed.
____________________________
Judy Fakes
Acting Commissioner of the Court
**********
0
5
1