Vinski v Wilson

[2023] NSWLEC 1801

Land and Environment Court

New South Wales

Medium Neutral Citation:

Vinski v Wilson [2023] NSWLEC 1801

Hearing dates:

23 August 2023

Date of orders:

23 August 2023

Decision date:

23 August 2023

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – is tree causing damage to applicants’ property – has applicant undertaken reasonable maintenance – relevant s 12 considerations

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006,

Pt 2 ss 7, 8, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

McPherson v Lake [2017] NSWLEC 1081

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

Category:

Principal judgment

Parties:

Lucy Vinski, (Applicant)
Alexandra Wilson (Respondent)

Representation:

L Vinski, Self-represented (Applicant)
A Wilson, Self-represented (Respondent)

File Number(s):

2023/195479

Publication restriction:

Nil

Judgment

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

Background

1. Lucy Vinski, the applicant, has owned and occupied a property in Naremburn, on Sydney’s north shore, for about 30 years. Alexandra Wilson, the respondent, purchased her neighbouring property in January 2019.

2. The respondent’s property had a Fraxinus griffithii (Evergreen Ash) (the tree), growing near the rear of the parties’ common side boundary, part of the canopy of which overhung the applicant’s garage, which is located in Ms Vinski’s back corner up against the common boundary.

3. The applicant claimed that the tree was damaging the corrugated iron roof of her garage and was causing an unreasonable maintenance burden from leaves and other debris falling and blowing onto the garage, in light of her elderly status.

4. Ms Vinski requested that the respondent prune and maintain the tree to prevent damage and the requirement for maintenance. Ms Wilson provided evidence of invoices and photographs showing that major branches from the tree overhanging the applicant’s roof were pruned in February 2019 and February 2023, but this failed to satisfy the applicant.

5. Consequently, Ms Vinski made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), seeking orders to remedy damage the tree had allegedly caused, was causing, or is likely to cause in the near future, and risk of injury the tree presents.

The onsite hearing

6. The hearing was conducted onsite with both parties present, along with Ms Vinski’s son. The tree in the respondent’s rear garden was inspected initially, after which the Court moved to the applicant’s rear yard to inspect alleged damage, and for the parties’ submissions.

7. Ms Vinski proposed the following (summarised) Orders:

1. Respondent to rectify damage to applicant’s garage at rear of property.

2. Respondent to maintain subject tree and her vegetation along the common boundary, on an ongoing basis, to prevent further damage to the garage.

3. Any other order as the Court sees fit.

Jurisdictional requirements

8. With respect to s 7 of the Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

9. Under s 8(1)(a) and s 8(1)(b) of the Act, Ms Vinski was required to provide notice of the application to the respondent and to Willoughby City Council. Though the case file included no record of satisfaction of s 8(1), I have invoked powers at s 8(3) of the Act to waive the requirement to provide such notice, in order to facilitate resolution of the dispute.

10. The applicant met the requirements of s 10(1)(a) of the Act. At question 32 of Tree Dispute Claim Details (Exhibit B), Ms Vinski provided evidence of engagement with the respondent, requesting pruning, and of seeking assistance towards mediation from a Community Justice Centre. Ms Wilson chose not to engage in mediation, and nor is she required to so engage.

11. Nonetheless, this effort by Ms Vinski satisfied s 10(1)(a) of the Act; to make a reasonable effort to reach agreement with the owner/s of the land on which the trees are situated.

12. The next major test that is posed, by s 10(2) of the Act, 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

13. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Act.

Findings

Garage damage

14. Evergreen Ash may grow to be a medium sized tree, but this specimen was relatively small. Ms Wilson’s evidence indicated that within 2 months of occupation, the respondent had two branches pruned for clearance from the garage roof and to reduce the extent of branch overhang. Pruning wounds from this work were visible on site, along with a more recent wound from a relatively large branch removed in February 2023.

15. The applicant’s garage was over 30 years old and its structure appeared to be compromised. Timber beams supporting the garage’s roof were sagging and exhibiting fungal decay and various sheets of corrugated iron appeared to be unattached to the roof; instead being held down by the weight of bricks. Rusted gutters that had begun to dis-attach from the roof were secured with cable ties. Part of the roof was also covered in weeds that looked like Kikuyu, growing opportunistically in a few centimetres of mulch material.

16. Though Ms Vinski claimed the tree was the cause of the garage damage and that Ms Wilson should pay for the garage’s repair, I was not persuaded that this was the case.

17. Many applications made under Pt 2 of the Act include claims of damage based on tree debris blowing or falling from neighbour’s trees and the associated maintenance burden. In Barker v Kyriakides [2007] NSWLEC 292 (Barker), at [20], the Court established the following Tree Dispute Principle to address such claims:

“20 It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms:

“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.””

18. Ms Wilson claimed that weeds had been growing on the applicant’s garage roof upon her occupation. This appeared likely, considering the extent of accumulated weeds and Ms Vinski’s submission that “half of the offending tree’s canopy has grown over my garage and dropped branches, leaves, and debris for many years causing an undergrowth soil system to exist on my garage roof.”

19. The judgment in Barker was tendered by Ms Wilson. Barker’s Tree Dispute Principle has been consistently applied by the Court and it applied here with respect to all tree debris described by the applicant and observed on ground surfaces and the garage roof. Though I acknowledge the difficulty faced by the applicant in maintaining the structurally compromised garage roof, it was clear that no tangible roof maintenance had been undertaken for many years, and it is common for people to require professional help with maintenance when their capacity reduces with age.

20. Even if accumulation of organic material on the roof did contribute to rusting of the roofing iron, which I am not satisfied was the case, this could have been prevented by occasional reasonable maintenance, as prescribed in Barker.

21. Section 12 (h)(i) of the Act considers “anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage”, and this covers the applicant’s “failure to maintain their own property” as a cause of damage. The age and nature of the structure is also considered when determining the relative extent to which the tree may or may not have caused alleged damage, as the Court considers that a certain amount of wear and tear is expected to arise with any structure over time. The garage was over 30 years’ old, it showed extensive deterioration, rust, and timber decay, and its original construction appeared inadequate. Rather than the tree, these elements appeared to be the primary causes of garage damage.

22. Further, though Ms Vinski objected to foliage from the tree or any other vegetation overhanging from the respondent’s land, it is common and normal in urban areas for tree foliage and roots to encroach beyond boundaries, usually with little consequence. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, Preston CJ, at [56], discussing branches overhanging neighbouring land in terms of the issue of nuisance, states that “mere encroachment into the neighbour’s land is insufficient to complete a cause of action” under the Act.

Risk of injury

23. Ms Vinski submitted that the tree presented a risk of injury to persons but provided no evidence in substantiation. Guided by McPherson v Lake [2017] NSWLEC 1081, at [10], 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.

24. This is a small tree that appears structurally sound and has been well maintained in recent years. No failures have been reported. The tree does not overhang a target zone occupied by people and it thus presents a low and acceptable risk. While climbing onto the garage roof may currently be risky because of questionable construction and deterioration of materials, this is not a risk caused by the tree.

Conclusions

25. Though Ms Vinski claimed that debris from overhanging branches of the respondent’s small Evergreen Ash tree had caused long term damage to her garage roof, in accordance with the Tree Dispute Principle established at [20] of Barker, debris of this nature is not considered to be damage under the Act, and any damage that may be related to such debris could have been readily avoided through occasional reasonable maintenance. Further, the tree was found to present a low risk of injury to persons, such that s 10(2) of the Act was not engaged, and the Court has no power to make Orders.

26. Though there is thus no requirement to address elements at s 12 of the Act, the applicant’s “failure to maintain her own property” and the advanced age and inadequate nature of the garage structure, were assessed at s 12(h)(i) as major contributors to the alleged damage.

27. The applicant submitted that the Court filing fee be waived or paid by the respondent. Commissioners do not have powers to order such costs. Claims for items such as these require lodgement of a Notice of Motion with the Court, which is heard before a Registrar, or a Judge.

Orders

28. The Court orders are:

1. The application is refused.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 19 January 2024