Vroharis v Austin

[2016] NSWLEC 1324

Land and Environment Court

New South Wales

Medium Neutral Citation:	Vroharis & anor v Austin & anor [2016] NSWLEC 1324
Hearing dates:	9 August 2016
Date of orders:	09 August 2016
Decision date:	09 August 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	See paragraph [23]
Catchwords:	TREES [NEIGHBOURS] Damage to property; potential injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Steve and Maria Vroharis (Applicants) Richard and Christine Austin (Respondents)
Representation:	Applicants: S and M Vroharis (Litigants in person) Respondents: R Austin (Litigant in person)
File Number(s):	166636 of 2016

Judgment

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

1. COMMISSIONER: The applicants have applied under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) in regards to 13 trees growing on an adjoining property in Mt Annan.

2. The applicants are seeking orders for the pruning of a number of trees to below the height of the guttering of their dwelling on the basis that flowers, fruit and leaves drop from the trees and accumulate in the gutter. They contend that this has caused the gutters to rust. As a consequence, they are also seeking orders for compensation of a quoted sum of about $2,500 for the replacement of the gutters at the rear of their dwelling. The applicants claim that the quantity of debris is such that it necessitates daily sweeping of the pathways and frequent clearing and cleaning of the roof tiles, pergola roof, and guttering.

3. The applicants are also seeking orders for the cutting of several trees along the front side boundary. They claim that the trees are damaging a treated pine retaining wall.

4. Apart from the damage, the applicants contend that the fallen leaves and fruit create a slip hazard and thus pose a risk of injury. Similarly, they have concerns about branches falling from a Casuarina located at the rear of the respondents’ property.

5. The respondents’ position is that the application should be dismissed.

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. As the applicants are 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 and the circumstances of the site apparent at the time of the hearing.

8. Neither party engaged an arborist to provide an independent arboricultural opinion; therefore the following observations are based on the arboricultural expertise I bring to the Court.

9. There are 13 trees identified in the application claim form. All are located on the respondents’ property close the common side boundary between the parties’ properties. The first respondent stated that he grew the trees from seed sourced from the nearby Mt Annan Botanic Gardens and planted them in or about 2004. The respondents value the trees for the food and habitat they provide for a wide range of native fauna, photographs of which are included in Exhibit 1.

10. Tree 1 is a mature Casuarina in fairly poor health. The first respondent stated that it had been a healthy tree however the side nearest the applicants’ property began to decline. The applicants have a photograph of a large dead branch that fell from the tree but which did not cause any damage to their property. The respondents have removed all major branches that were growing towards the applicants’ property; only a few smaller green branches remain but which barely overhang their property. While there is still some dead wood in the tree it is unlikely to fall onto the applicants’ property. The respondents are content to manage the risk the tree may pose to their property, which in my view is a relatively low risk. While the applicants are concerned about the debris falling from the tree, they accept that the tree has not caused any damage to their property.

11. Trees 2-4 are Lillypillies that have been pruned away from the fence. They adjoin a garden area at the rear of the applicants’ property. These trees have not caused any damage to the applicants’ property.

12. Tree 5 is a mature Lillypilly some 500mm away from the dividing fence. Trees 5, 6, and 7 are the trees closest the rear of the applicants’ dwelling and the attached rear pergola. It would seem that these trees are the source of most of the debris that accumulates on their property. The trees have been pruned away from the boundary but there is some minor overhang.

13. While the claim form identifies areas of damage to a pathway, roof tiles, floor tiles and pergola roof, the applicants acknowledge that no actual physical damage has been caused by any of the trees to these items. The complaint is about the dropping and accumulation of debris.

14. When I said I couldn’t see any holes from the underside of the guttering, the applicants stated that the inside of the guttering was rusting but had not yet led to holes. I requested the applicants provide a ladder to enable me to see the damage for myself. I found some accumulated and decomposing leaf litter but the base of the gutter was sound and no rusting or deterioration of the metal could be seen or felt.

15. The remaining trees, 8-13, are growing along the common boundary at the front of the parties’ properties. Tree 8 is a small bottlebrush; the fine tips of some branches are 400-500mm away from the corner of the applicants’ roof but no damage has been caused.

16. Trees 9-13 adjoin the section of the applicants’ property retained by the treated pine log wall. Apart from individual stems of trees 9 and 11, no parts of the trees are touching the retaining wall or appear to have caused any damage to it. Both trees 9 and 11 have multiple trunks; on each tree, the stem closest to the retaining wall is growing against it and causing some deflection. While the retaining wall is still functional, if those stems are left to grow, further damage could arise.

17. The application claim form also includes a number of references to the timber dividing fence with the allegation that the respondents’ trees have somehow caused it to lean thus necessitating some additional bracing. However, there are no orders seeking repair of the fence and there is no claim for compensation for a replacement fence although there is a quote for a replacement fence attached to the claim form. I saw nothing that would indicate any obvious impact of the respondents’ trees on the fence. The majority of the braced portion beside the applicants’ house does not have any trees growing near it. It appeared to be an old fence which generally needs replacing. However, as there are no orders sought, no further mention will be made of it.

Findings and orders

18. While I am not satisfied that any damage has occurred to the guttering 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.

19. 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.

20. 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.

21. 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.

22. Apart from trees 9 and 11, I am not satisfied that any of the trees the subject of the application have caused, are causing, or are likely in the near future to cause damage to the applicants’ property or are likely to cause injury to any person. Therefore, apart from those two trees, s 10(2) is not satisfied and the Court has no jurisdiction to order any interference with them. Orders will be made to remove the relevant stems from trees 9 and 11. This will not detrimentally affect their health or significantly reduce their amenity or biodiversity value.

23. Therefore, the Orders of the Court are:

1. Within 30 days of the date of these orders, the respondents or their agents are to remove from Trees 9 and 11, the stem growing against the applicants’ timber retaining wall. The stem is to be cut close to ground level.

2. The applicants are to provide all reasonable access on reasonable notice to enable the respondents or their agents to carry out the works in order (1).

3. The application for pruning of the remaining trees is dismissed.

4. The application for compensation for replacement and cleaning of the gutters is dismissed.

________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 09 August 2016