Land and Environment Court of New South Wales CITATION : Snellgrove v Agostini Pty Ltd [2010] NSWLEC 1150 APPLICANT Mrs C Snellgrove PARTIES : RESPONDENT Agostini Pty Ltd FILE NUMBER(S) : 20281 of 2010 CORAM: Fakes C - Galwey AC TREES (NEIGHBOURS) :- Damge to property KEY ISSUES: Injury to persons Pruning ordered LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Robson v Leischke [2008] NSWLEC 152 Barker v Kyriakides [2007] NSWLEC 292 DATES OF HEARING: 18/06/2010 DATE OF JUDGMENT: 18 June 2010 EX TEMPORE JUDGMENT DATE : 18 June 2010 APPLICANT Mrs C Snellgrove [litigant in person] LEGAL REPRESENTATIVES: RESPONDENT Mr M Agostini [litigant in person] JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes C Galwey AC 18 June 2010 20281 of 2010 Snellgrove v Agostini Pty Ltd JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Dalman Place Sylvania against the owner of trees growing in a property at Port Hacking Road Sylvania. 2 The applicant is seeking the removal of several trees as she contends that the trees have caused damage to her property and may continue to do so. She is also concerned that the trees may cause injury to herself or her family. 3 The damage said to have been caused by the trees is the lifting of pavers and the cracking of the ceiling and walls in a room adjacent to one of the trees. The applicant fears that one of the trees, or branches from it, could fail onto her house during storms. She also contends that the lifted pavers are a trip hazard. The applicant is also concerned about the volume of leaves that fall onto her roof that necessitates the engagement of someone to clean the roof. 4 The trees are growing at the rear of the respondent's property along the rear dividing fence between the two properties. The trees were planted about 13 years ago to comply with Sutherland Shire Council's requirements for landscaping in conjunction with the granting of a development application to construct a residential flat building on the respondent's property. The trees are to the west of the applicant's house. The applicant has lived in her house since it was built 46 years ago. 5 There is a difference in ground level of about 1.5 m between the two properties; the applicant's being lower than the respondent's. A masonry wall behind a fence retains the soil. 6 Each of the plants subject to this application must be considered individually, and an assessment made in accordance with s 10(2) of the Act. This section states that the Court must not make an order unless it is satisfied that any of the trees concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or is likely to cause injury to any person. 7 The most northerly of the trees is a Eucalyptus nicholii (Willow-leafed Peppermint). This tree is in average health and has a reasonable percentage of dead wood throughout the canopy; this is typical of the species. About 40% of the canopy overhangs the applicant's house including one low branch that the applicant is most concerned may fail. The tree is quite suppressed by the canopies of trees growing in the property immediately to the north of the respondent's property. 8 We inspected the tree from both properties and we are satisfied that the attachments of the branches show no signs of likely failure. Whilst there is some included bark in the bifurcated trunk, there are no signs that would lead us to believe that the tree is likely to fail. 9 The cracks in the walls and ceiling in one of the rooms in the applicant's house appeared to be consistent with slight separation of the joints between sheets of plaster board rather than the cracking of the plaster itself. That is, the cracks were linear and regular rather than diagonal. There were no cracks in the external brickwork of this room (or elsewhere on the side of the house facing the trees) nor in a concrete slab laid when the house was built. This slab is between the retaining wall and fence that form the western boundary of the applicant's property and the applicant's house. 10 Whilst the Eucalyptus nicholii overhangs the room in which we observed the cracks, the applicant was unable to prove the nexus between the tree and the cracks. It seems highly unlikely to us that the tree is the cause of the cracking. 11 With respect to the lifted pavers and the potential trip hazard, these are brick pavers laid by the applicant's late husband some 25 years ago. These have been re-laid on several occasions, most recently because of works to sewer pipes. It is our observation that the pavers have subsided rather than lifted. They are also at a reasonable distance from the Eucalyptus nicholii and at a much lower level. We saw no evidence that the tree has caused the displacement of the pavers. 12 Returning to s 10(2) with respect to this tree, there was no evidence to show that the tree had caused damage to the applicant's property. However, the percentage and location of the dead wood is such that it could, in the near future, cause damage to property and may cause injury to any person. Therefore as two of the tests under s 10(2) are satisfied, the jurisdiction is enlivened and the Court may make an order. 13 Before doing so, the Court must consider a number of matters under s 12 of the Act. Relevant in this case is that the tree makes a contribution to biodiversity and to the local ecosystem. It contributes to the scenic value of the property on which it is growing. The canopy of this and adjoining trees can be seen from Dalman Place and therefore the tree has some public amenity value. 14 The applicant seeks the removal of the tree however, s 9 of the Act provides for a degree of discretion in what may be ordered to prevent damage to property or injury to any person. In this matter the removal of the tree is not justified however an order will be made for the removal of dead wood – that being the element most likely to fail. 15 The majority of the remaining trees are Paperbarks. The applicant is concerned that they overhang her property and are a nuisance. In Robson v Leischke [2008] NSWLEC 152 Preston CJ at paras 171 and 172 states 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 cause damage to property on the neighbour's land they will not be actionable under s 7. 172 I note that in Barker v Kyriakides [2007] NSWLEC 292 (24 May 2007), Moore C, Hussey C and Fakes AC found, as a matter of discretion, that "[t]he 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": at [20]. However, the problem is anterior to the exercise of discretion as to whether to make an order under the Act; there is no power to make an order in relation to the tree unless such debris of the tree "has caused, is causing, or is likely in the near future to cause, damage to the applicant's property" on the land: ss 7 and 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 . 16 Therefore as none of paperbarks satisfy any of the tests under s 10(2) the application with respect to these trees is dismissed. 17 The southern-most tree is a smooth-barked Eucalypt, possibly Eucalyptus scoparia (Wallangarra White Gum). This tree has dead branches that overhang the applicant's property. For the reasons given for the Eucalyptus nicholii, the failure of these may cause damage or injury and therefore an order will be made for the removal of that dead wood. 18 In conclusion, the Orders of the Court are: 1. The application to remove the trees is dismissed. 2. The respondent is to engage and pay for an AQF level 3 arborist to remove all dead wood greater than or equal to 30 mm in diameter from the two Eucalypts. 3. This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. 4. The works are to be completed within 30 days of the date of these orders. 5. If required, the applicant is to provide all reasonable access for the works to be carried out in a safe and efficient manner. 6. The respondent is to give the applicant and any other relevant party at least 2 working days notice of the commencement of the works. _____________________________ ___________________________ Judy Fakes David Galwey Commissioner of the Court Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.