Land and Environment Court of New South Wales CITATION : Klopfer v Pierce [2009] NSWLEC 1333 APPLICANT Evelyn Klopfer PARTIES : RESPONDENT Thomas Pierce FILE NUMBER(S) : 20453 of 2009 CORAM: Pearson C - Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Robson v Leischke (2008) 159 LGERA 280 CASES CITED: Yang v Scerri [2007] NSWLEC 592 Barker v Kyriakides [2007] NSWLEC 292 DATES OF HEARING: 16 September 2009 DATE OF JUDGMENT: 13 October 2009 APPLICANT LEGAL REPRESENTATIVES: In person RESPONDENT No appearance JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pearson C and Thyer AC 13 October 2009 20453 of 2009 Evelyn Klopfer v Thomas Pierce JUDGMENT 1 Commissioners: Two Lemon scented Gum trees (the trees) are growing in the backyard of 114 Riley Street, East Sydney (the property). The trunk of each tree is located about 4 metres from the common boundary with the adjoining lands to the south. Ms Klopfer is the owner of both 116 Riley Street, East Sydney and 19 Burnell Place, East Sydney, the adjoining lands to the south. She makes an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify or prevent property damage and to prevent risk of injury to people. She seeks orders regarding the western, larger tree: that the two branches overhanging 114 Riley Street, East Sydney be cut off, and the branch overhanging 19 Burnell Place, East Sydney be pruned, at the cost of the owner of the property. 2 The owner of the property is Mr Thomas Pierce. On 17 August 2009 the usual Directions for Class 2 matters under the Act were made requiring service of the application and supporting documents on both the Council of the City of Sydney (the Council) and Mr Pierce. Ms Klopfer later contacted the Court to outline her difficulties in providing the documents to Mr Pierce in person. On 8 September 2009 the Court directed Ms Klopfer to serve a copy of the application on Mr Pierce by 11 September 2009. Ms Klopfer contacted the Court on 11 September 2009 by email to advise that she had given the papers to Mr Pierce that day, and at the hearing on 16 September 2009 Ms Klopfer provided a statutory declaration confirming that she had given Mr Pierce a copy of the papers on 11 September 2009. Neither Mr Pierce nor any representative attended the hearing. In correspondence to the Court Mr Pierce indicated that he works in Adelaide during the week. In a letter dated 11 September 2009 Mr Pierce stated his position in relation to the application, which is that he opposes pruning; if it is to take place it should be from Ms Klopfer's side of the boundary of those limbs that overhang, in accordance with the council's permission and at Ms Klopfer's cost. Evidence 3 The hearing was held on site, and we observed the trees from Ms Klopfer's backyard and from her upstairs rooms. We did not enter Mr Pierce's property at the hearing. 4 In support of her application Ms Klopfer has provided an arboricultural report dated June 2009 prepared by Mr Kyle Hill, an AQF level 5 arborist. In his report Mr Hill states that the trees have displayed an "accelerated growth" rate since the spring of 2007, and "Multiple large diameter branches (plus several smaller diameter) which have for several years overhung my clients backyard or to close her properties built structures are becoming quite a significant problem related to solar access as well as their potential to cause damage to her built structures. Both are current concerns as opposed to being a concern in the near future, (i.e. the next 12 months)." 5 Ms Klopfer provided a Notice of Determination 2008/122413 dated 8 September 2008 issued by the Council authorising the reduction pruning of two internal lateral branches with a maximum dimaeter of 60mm at the point of attahcment to the internal branch that overhangs the rear building at 116 Riley Street, selective pruning of two lower branches with a maximum diameter of 80mm at the point of attachment to the tree that overhangs the building and rear courtyard of 116 Riley Street, and removal of deadwood up to 20mm diameter, to lapse on 8 September 2009. At the hearing Ms Klopfer provided a copy of a Notice of Determination extending the time for the consent to carry out these works to 15 September 2010. Neither Mr Hill, nor Ms Knight from the Council, attended the hearing. 6 Ms Klopfer has provided medical statements from the following practitioners: · Dr A Trachtenberg, dated 3 June 2009; · Dr Emily Stone, dated 5 June 2009; · Angela Henry, dated 17 June 2009. 7 Dr Trachtenberg states that Ms Klopfer suffers from severe asthma and emphysema and that her condition is aggravated by "the fine particulate matter falling down from the flowers of the lemon gum trees coming from her neighbour". Dr Stone states that Ms Klopfer has significant impairment of lung function "and should not be exposed to exacerbating factors". Ms Henry (pulmonary rehabilitation coordinator) states that Ms Klopfer has identified a situation concerning the trees which release a "powder-like" substance after flowering which covers the garden and outdoor area, and states that "it is my professional opinion that this 'powder' and the constant effort to remove it, significantly impacts on Ms Klopfer's condition and exacerbates her breathlessness, fatigue and associated anxiety". 8 In her application Ms Klopfer made the following claims: -When the trees are flowering they drop the branches of flowers, flowers, and later a white powder which covers her garden -She has emphysema and the flowers and the powder affect her very badly -The leaves block her gutters, including the gutters at the front of the house -The trees, Bougainvillea and other things growing on Mr Pierce's property cause a lack of sun and light to her property -Deadwood drops from the trees, in particular a dead branch was caught in the branches of her maple tree in about October 2006 9 At the hearing Ms Klopfer provided further description of the material that falls from the trees, and stated that the roof gutters of her house need to be cleaned of gum leaves every 3 to 6 months; the roof guttering on the Riley Street frontage of her house was blocked by gum leaves in about 2008, and leaked into the house at the end of the guttering furthest from the downpipe; the trees drop dead branches (twigs up to about finger thickness), leaves and fruit all year round; and leaves twigs and fruit of the trees collect on her roof and need to be removed. Ms Klopfer stated that the staminate material from the flowers of the trees has caused her some breathing problems, however her main concern is with what she describes as a white powder. Ms Klopfer did not think the trees had flowered in 2009. 10 Ms Klopfer accessed diary entries on her computer. The record for 20 July 2007 notes that the gum trees were flowering then; 23 July 2007 refers to a "heap of flowers from the gum tree outside the back door"; entries on 25, 26 and 29 July 2007 refer to flowers. Entries on 14 August 2007 and 19 June 2008 mention bats in the trees. An entry on 15 March 2009 refers to locating a diary entry in June 2008, and states "the flowers begin a bit before that, and they also attract the bats who squeal and go for the flowers" and that "by mid June and into all of July the white mist or powdery stuff that falls from the trees is beyond me". 11 Ms Klopfer's neighbour from 118 Riley Street, Mr Eccles, stated that he has lived there since the end of 2007 and could recall having flowers and stems dropping in his garden; however he could not recall seeing a powder. Consideration 12 Having observed the trunks of the trees growing about 4 m north of the dividing fence to Ms Klopfer's land, and well clear of what appears to be Mr Pierce's northern boundary, we are satisfied that the trees are entirely on Mr Pierce's property, meeting s 4(3) and s 7 of the Act. Consequently, as we find that each tree is a "tree" within the meaning of that term in s 3(1) of the Act, there is an application that the Court may determine. 13 When assessing an application under the Act, 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 each tree before making an order regarding that tree. These tests are: -Has the tree caused damage to the applicant's property on the land? -Is the tree now causing damage to the applicant's property on the land? -Is the tree likely in the near future to cause damage to the applicant's property on the land? -Is the tree likely to cause injury to any person? 14 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 trees 15 The trees are Lemon scented Gums (Corymbia citriodora). Mr Hill states that the trees are mature and estimated to be in excess of 30 years old, and "have not achieved anywhere near their potential full size." 16 We observed that the tree located towards the east of Mr Pierce's backyard is about 12 m tall, has a suppressed form, and does not overhang the common boundary. The tree located towards the west of Mr Pierce's backyard is about 14 m tall, and although three branches overhang the common boundary, it is a small tree with light branches considering its reported age. We did not see any dead wood larger than 20 mm diameter in the western tree. Findings: Damage 17 Regarding the eastern tree: due to its small size, that it does not overhang the common boundary, and that it is not specifically identified as having caused, now causing, or likely in the near future to cause damage to Ms Klopfer's property, we find that it does not meet any of the tests in s 10(2)(a) of the Act. In this respect we have considered the "near future" as being a period of about 12 months: Yang v Scerri [2007] NSWLEC 592. 18 Regarding the western tree, we note that the only damage that Ms Klopfer claims this tree has caused to her property is water leakage into her home from the guttering at the front of her house. Ms Klopfer indicated at the hearing that the leak was down the wall on the northern side of the building, at the end of the guttering furthest from the downpipe, and that she had been told by the person who cleared the gutters that the blockage was caused by gum leaves. We observed that there is a large Brush Box tree growing in Riley Street near the front of Ms Klopfer's house. On the basis that the Brush Box tree is on the same side of the pitched roof as the guttering, and much closer to the guttering than the western tree, and that the guttering leaked at what should be the uphill end of its length, we are not satisfied that the leak was caused by leaves of the western tree. Consequently, we find that the western tree does not meet the first test in s 10(2)(a) of the Act. If we are wrong in this regard, then consistent with the Court's decision in Barker v Kyriakides [2007] NSWLEC 292, we would not be satisfied that it would be appropriate to order the removal or significant interference with the tree on the basis of its dropping of leaves, twigs and the like on the applicant's property. 19 We note there is no claim that the western tree is now causing damage to Ms Klopfer's property, and we were not shown any damage. On that basis we find the western tree does not meet the second test in s 10(2)(a) of the Act. 20 We note that Mr Hill's report states that the large overhanging branches have the potential to damage Ms Klopfer's built structures. However, the report did not specify how any specific part of any structure would be damaged, and at the hearing we were not shown how such damage would occur. We did not see any deadwood in the tree that would be likely to fall and cause damage to Ms Klopfer's property in the near future, nor do we find that fallen leaves, twigs, and berries are likely to cause damage to Ms Klopfer's property in the near future. On that basis we find the western tree does not meet the third test in s 10(2)(a) of the Act. If we are wrong regarding leaves, twigs, and berries, then consistent with the Court's decision in Barker v Kyriakides, we would find it is not appropriate to order the removal or significant interference with the tree on that basis. Findings: Injury 21 Ms Klopfer claims there are two ways by which injury may occur. First, injury from falling dead branches which may injure any person under the trees; and secondly, injury that would be specific to her as a result of her medical conditions, as follows: -Breathing problems caused by the "white powder" when it blankets her backyard, and breathlessness, fatigue and associated anxiety exacerbated by her strenuous activity to clean up the "powder-like" substance, and exposure to the associated airborne material; -Less serious breathing problems caused by fallen flower parts of the trees. 22 At the hearing we did not observe any deadwood larger than about 20 mm diameter in the trees. On that basis we find that the trees do not meet the test in s 10(2)(b) of the Act with regard to likely injury from falling deadwood. 23 Ms Klopfer stated at the hearing that the "white powder" occurred only in 2007 and 2008, it did not occur this year nor in any other of the almost 40 years that she has lived there. She also stated that the trees flower in August generally and the "white powder" occurred soon after flowering, over about a week. 24 We note some discrepancy between what Ms Klopfer said at the hearing and her written submission which states that the (western) tree has flowered in June – August, and the "powder" drops when the flowers have nearly finished. We also note some further discrepancy with her diary records which state in part: 19 June 2008 The garden is full of dust of the flowers from the Lemon gum trees. ….. I HEARD the flying bats squeaking at dusk.. …. They must have been having a lovely time up there, even if there were only two of them! …. 27 June 2008 I swept the garden yesterday too. But of course with the wind and the gum tree blooming, all the garden at the back is again full of a fine dust which comes off the lemon flowers or whatever it has up there. 6th July 2008 I am SO tired of the crap that is coming off the gum trees. It is like a total white shower all the time which blankets the garden ….. 27 July 2008 ... I cannot cope with the stuff coming down from the gum trees. .... 25 Ms Klopfer says there has been no "white powder" in 2009, and that the trees do not seem to have flowered this year. We were not shown any sample of the "white powder" from previous years. At the hearing Ms Klopfer agreed that she could not be sure what part of the trees the "powder" is from. 26 Mr Hill's report states: ..... by simply removing any branches overhanging her properties it is unlikely any person could successfully challenge that such a reduction would not offer some relief from tree parts, specifically annually produced flower parts which fall into her properties. After two (2) years of observing the seasonal inconvenience of the falling flower parts ....... I advised my client to approach the City of Sydney Council "Tree Management officers" with an application to seek permission to prune offending branches. 27 With regard to fallen flower parts of the trees, we accept Ms Klopfer's evidence that it causes her to have breathing problems. As the trees are likely to flower most years in the future, we find that on this basis the trees meet the test in s 10(2)(b) of the Act. However, we understand that the flowering occurs for no more than about a month each year, and not in every year. Also, we understand from Ms Klopfer's evidence that the flower parts are a minor problem compared to the "powder". Further, Ms Klopfer has common law rights allowing her to prune the branches of the trees back to the boundary, and if necessary she may seek the Council's consent to do so. We are not persuaded that it would be appropriate to order any intervention with the trees on this basis. 28 In relation to the "powder" which Ms Klopfer claims falls from the trees, we note that Mr Hill refers to "flower parts" but does not specifically state that he has observed any "white powder" from the trees, or from any other trees of the same species. We are not aware of any other instances of this tree species dropping large amounts of "powder" separate from the common fibrous flower parts. Ms Klopfer has not provided any evidence that the large amount of "powder" is a recognised phenomenon of the species. There were no flowers on the tree or "powder" in the courtyard at the time of the hearing, and thus there was no visual evidence to support Ms Klopfer's claims. Circumstances may well be different if some future application were made enabling a hearing at a time the trees were flowering. On the basis of the evidence before us, however, we are not persuaded that any "powder" is from the trees, and we consequently find that the trees do not meet the test in s 10(2)(b) of the Act in this regard. Bats 29 Ms Klopfer has two concerns regarding bats, firstly their noise in the trees and when they drop onto her roof, and secondly that the flowers in the trees attract the bats. It may be that the powdery material that concerns Ms Klopfer results from the bats feeding and/or defecating, however in the absence of firm evidence we are unable to make any findings in this regard. 30 Preston CJ discussed damage or injury directly caused by animals in Robson v Leischke [2008] NSWLEC 152, (2008) 159 LGERA 280 at para [189] in the following terms: … the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees …. . On that basis, we find that noise caused by bats, and the white "powder" if it is caused by bats, does not meet the tests in s 10(2) of the Act. Access to light 31 Ms Klopfer claims that the trees, Bougainvillea and other things growing on Mr Pierce's property interfere with sun and light to her land. Preston CJ discussed access to light and views in Robson v Leischke [2008] NSWLEC 152; (2008) 159 LGERA 280 at para [173] in the following terms: Although the New South Wales Law Reform Commission recommended that the new statutory scheme should address such concerns, the legislature expressly declined to do so, as the second reading speech and Parliamentary Debates plainly state. Obstruction of a view from land or of access to light on land by a tree situated on adjoining land does not constitute "damage to property on the land ". On that basis we find that any obstruction of sun and light by trees on Mr Pierce's property would not meet the tests in s 10(2) of the Act. Conclusion 32 For the above reasons, we are not satisfied on the evidence before us that the threshold jurisdictional requirements of s10(2) of the Act are met. Accordingly, there is no basis for ordering any intervention with the trees, and the application should be dismissed. Orders 33 The orders of the Court are: 1. The application is dismissed. ___________________ Linda Pearson Commissioner of the Court ___________________ Peter Thyer Acting Commissioner of the Court The formal orders may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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. 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