Young v Cole

[2008] NSWLEC 1342

Land and Environment Court

of New South Wales

CITATION:

Young v Cole [2008] NSWLEC 1342

PARTIES:

APPLICANT
Janice Young

RESPONDENT
Greg Cole

FILE NUMBER(S):

20520 of 2008

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Tree be heavily pruned or removed, damage to property, risk of injury to persons

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

12/08/2008

EX TEMPORE JUDGMENT DATE:

12 August 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Young, litigant in person

RESPONDENT
Mr G Cole, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

12 August 2008

20520 of 2008

Janice Young v Greg Cole

JUDGMENT

The two applications 20508 of 2008 and 20520 of 2008 were for the same tree and respondent. The applications were heard together and determined in a single decision. The decision was given as an extemporaneous decision. It has been revised and edited prior to publication and the written judgement for both applications is the same.

1 ACTING COMMISSIONER: A peppercorn tree grows in the south western corner of the backyard of 35 Paul Street Picnic Point, owned by Mr Cole. The tree overhangs 37 Ramsay Street Picnic Point, the adjoining property to the south. Mr Cole’s property has a single dwelling and large area of yard, as did 37 Ramsay Street prior to its development with four villas in 2002. Branches of the peppercorn tree extend a few metres over both 2/37 Ramsay Street owned by Mrs and Mrs Farrugia and 3/37 Ramsay Street owned by Mrs Young.

2 The applicants are concerned that:

Leaves and twigs block roof gutters and drains causing overflow;
Leaves stain Mrs Young’s facias and paving;
Roots may damage sewer pipes;
Roots may damage the villa buildings;
Branches may fall and cause injury.

3 The applicants seek orders that the tree be heavily pruned or removed.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are:

Has the tree caused damage to the applicant's property ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?

5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

The tree

6 I observed that the tree is a peppercorn tree (Schinus areira) about 12 m in height and spread. It appears to be in good health without included bark that may indicate weak branch junctions. I did not observe any dead wood larger than about 15 mm diameter in the canopy, nor any indications that live branches had broken from the tree. Mr Cole advised that he has had the tree inspected regularly by a horticulturist, most recently in December 2007 when the tree was described as being healthy, mature, and generally sound. I find no reason to disagree with that description. Mr Cole had the tree drilled by a pest inspector in about 2004 and no termites were found.

7 I observed that some branches had been pruned over the applicants’ properties. I accept Mr Cole’s evidence that one branch was pruned in 2002 by the developers of 37 Ramsey Street with Council permission, and that additional pruning was done by the developers and later by the applicants. I also accept Mr Cole’s evidence that one root of about 150 to 200 mm diameter was cut at about 1 m into what is now Mrs Young’s property when the villas were built in 2002.

Damage to the applicants’ property

8 The Farrugias claim that the blocking of roof gutters by leaves has caused water to overflow into the cavity wall of their house onto power lines and caused black-outs. They also claim that leaves blocking the yard pit have caused stormwater to overflow into Mrs Young’s yard.

9 Mrs Young claims that facia boards are stained from overflowing roof gutters and paving is stained from leaves where water pools.

10 I find that shorting of the power supply and staining of facia boards is damage caused by the tree, and that the tree has contributed to staining of the pavement. As the tree has caused damage to both the Farrugias’ property and Mrs Young’s property the first test in s 10(2) (a) of the Act is met with regard to both applications.

11 I find that no damage has been caused by the tree in the overflow of stormwater into Mrs Young’s backyard so this issue does not meet the tests in s 10(2) (a) of the Act.

12 With respect to possible damage to sewer pipes, the applicants’ pipes are reported to be PVC pipes laid in 2002 when the villas were developed. The applicants advised at the hearing that no blockage has occurred to these pipes, and I have not been provided with any evidence that these pipes are likely to be damaged by the tree in the near future. Therefore issues of the sewer pipes do not meet the tests in s 10(2) (a) of the Act.

13 I am advised that the Board’s sewer main crosses 37 Ramsay Street under Villa 2/37. Any damage to that pipe would not meet the tests in s 10(2) (a) of the Act as the pipe is not the property of the applicants.

14 At the hearing Mr Farrugia raised concern about a crack in the brickwork at the front of Villa 2/37 Ramsay Street. I cannot find that the crack is caused by the tree as it is on the far side of the dwelling, and no evidence has been provided to associate the tree with the crack. Therefore issues of the cracked brickwork do not meet the tests in s 10(2) (a) of the Act.

15 Mrs Young is concerned about possible damage to her property should a large branch fall from the tree. All parties agreed that no live branches have fallen from the tree, I did not observe any structural problems with the tree that might indicate branch failure is likely, and no expert advice has been provided to suggest that branch failure is likely. On this basis I find that it is not likely that damage will be caused by a large branch falling from the tree in the near future and therefore the tests in s 10(2) (a) of the Act are not met.

Is the tree likely to cause injury ?

16 The applicants are concerned that injury may be caused if a large live branch falls from the tree. As considered above, there is no history of live branch fall and no evidence that any live branch is likely to fall in the near future. Nor is there any evidence that any live branch is likely to fall at any time in the future. Therefore the tree does not meet the test in s 10(2) (b) of the Act with regard to live branch fall and likelihood of injury.

17 Mr Farrugia has described dead wood of up to 50 mm diameter and 1.5 m length that has fallen into his yard on about six occasions over the last five years. I accept that such dead wood may cause injury. However, inspection of the tree did not reveal any similar dead wood, so I cannot find that injury from this cause is likely. Therefore the tree does not meet the test in s 10(2) (b) of the Act with regard to any dead branches and likelihood of injury.

Considerations

18 Although the tree satisfies the test in s 10(2) (a) of the Act with regard to having caused damage, before determining the applications I am required to consider matters in s 12 of the Act.

19 Under s 12 (d) of the Act, I find that the tree is likely to contribute to the local ecosystem and biodiversity by providing food and shelter for various fauna.

20 Under s 12 (e) and (f) of the Act, I find that the tree contributes to the natural landscape and scenic values of Mr Cole’s land, and as it is visible from surrounding properties and streets it contributes to the scenic values of the local area. It also provides intrinsic value through local climate amelioration, oxygen production and carbon sequestration.

21 Under s 12 (h) (i) and s 12 (j) of the Act, I consider that construction of Villas 2/37 and 3/37 Ramsay Street so close to the tree by the developers in 2002 is a major cause of the problems being experienced by the applicants. Had the developer provided more open space around the tree the problems of damage may not have arisen. Similarly the design of roof guttering and yard drainage does not appear to have taken the prior and continuing existence of the tree into account.

22 Under s 12 (h) (ii) of the Act, I note that the applicants have installed mesh gutter-guard on both villas and over a stormwater pit in Villa 2/37 Ramsay Street. I also note that they claim the gutter guard is not fully effective, and gutters still need to be cleaned. In this regard the tree principle published in Barker v Kyriakides [2007] NSWLEC 292 discusses the obligations of householders who have the aesthetic and environmental benefits of trees in an urban setting and the requirement that they may reasonably be expected to undertake property maintenance including the removal of tree detritus such as leaves, nuts, fruits or small branches falling from such trees onto their property. I consider that the maintenance of the applicants’ properties required by the peppercorn tree is covered by the principle in Barker and there is no reason to order any intervention with the tree.

23 I note that at the hearing the parties considered a process for the applicants to provide to Mr Cole photographs with clear markings of any branches they would like to have pruned, and for Mr Cole to seek Local Council approval for such pruning.

Conclusion

24 With regard to injury, I find that the tree is not likely to cause injury to people. With regard to damage, I find that the tree has caused damage to the applicants’ properties by water damage arising from gutters blocked by leaves. However, after consideration of matters under s 12 of the Act I find that no interference should be ordered with the tree. As the applications were for heavy pruning or removal of the tree, I refuse the applications.

Orders

25 The orders of the Court are that the applications are refused.

___________________

Peter Thyer
Acting Commissioner of the Court