Wilson v Farah

[2017] NSWLEC 1006

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wilson v Farah & ors [2017] NSWLEC 1006
Hearing dates:	10 January 2017
Date of orders:	10 January 2017
Decision date:	10 January 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage; debris in pool
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Marina Wilson (Applicant) Vivian, Anthony, and Kathy Farrah (Respondents)
Representation:	Applicant: Marina Wilson (Litigant in person) Respondents: Kathy Farrah (Litigant in person/ Agent)
File Number(s):	285570 of 2016

Judgment

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

1. COMMISSIONER: In December 2014 the applicant purchased her Killarney Heights property. She and her partner moved in in February 2015. The property includes a swimming pool, with cover, in the rear garden. The pool is partially overhung by a mature and established Citharexylum spinosum (Fiddlewood) growing in the corner of the respondents’ adjoining property.

2. The applicant contends that debris from the tree, specifically the flowers and leaves, has caused, and could continue to cause, damage to the pool. The applicant submits that the level of maintenance required in order to maintain the pool in a useable state, is more than ordinary. As such, 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 Fiddlewood at the respondents’ expense.

3. The respondents reject this proposal but, in order to mitigate the impact of the shedding, would agree to the removal of overhanging branches – subject to consent being granted by Northern Beaches Council under council’s tree protection controls.

4. 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.

5. Injury is not pressed although in correspondence included in the application claim form, the applicant raises concerns about the relationship between the tree species and sinusitis.

6. 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…”.

7. 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.

What is the damage?

8. The application claim form and other exhibits contain photographs of debris floating on the water, on the pool surrounds, on the pool cover, and on the nearby lawn. There are photographs of the greenish water and of considerable algal growth on the base and inner sides of the pool.

9. The applicant states that because of the volume of debris that had accumulated in the pool, the condition of the pool and water was such that in February 2016, the pool had to be drained, cleaned, refilled and treated with 200kg of pool chemicals to render it fit for use.

10. It appears that the applicant’s contention that the algal growth constitutes ‘damage’.

11. No evidence was adduced to demonstrate that there has been, or is likely in the near future to be, any material damage to the fabric of the pool or any other component.

12. In Robson v Leischke [2008] NSWLEC 152 at paragraphs [168]-[173], Preston CJ discusses “damage to property”. In essence, there must be physical damage to physical and tangible property on an applicant’s land. At [171] His Honour states:

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.

13. I am not satisfied, to the extent required by s 10(2) that any damage has occurred to the pool as a consequence of the leaves and flowers, or is likely in the near future to occur, however, if I am wrong in this, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter and other debris.

14. 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.

15. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [1]-[14], the Principle was extended to the cleaning of mould and slime.

16. 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.

17. The applicant purchased a property with a pool overhung by an established tree. While she was unaware of the particular flowering and leaf-shedding characteristics of this species, the need for pool maintenance should have been clear as all trees eventually shed flowers, fruits and leaves to a greater or lesser extent. As a consequence, when these predictable events occur, there may need to be an increase in the degree of maintenance required.` Apart from the Fiddlewood, there are a number of other trees on the applicant’s land and other adjoining properties that shed material, some of which is likely to end up in the pool. However, I accept that the Fiddlewood will contribute the greatest volume.

18. While the applicant contends that the required maintenance (up to 3 x per day) is unreasonable, as I am not satisfied that any actual damage has been caused by the tree, s 10(2) is not satisfied.

19. As such, the Order of the Court is:

1. The application is dismissed.

__________________________

Judy Fakes

Acting Commissioner of the Court

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Decision last updated: 10 January 2017