Land and Environment Court of New South Wales CITATION : Kent v Karpisek [2010] NSWLEC 1149 APPLICANT Dr Peter Kent PARTIES : RESPONDENT Mr A Karpisek FILE NUMBER(S) : 20250 of 2010 CORAM: Fakes C - Galwey AC KEY ISSUES: TREES (NEIGHBOURS) :- Future damage to property Injury to persons LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Yang v Scerri [2007] NSWLEC 592 CASES CITED: Robson v Leischke [2008] NSWLEC 152 Dooley & anor v Nevell [2007] NSWLEC 715 DATES OF HEARING: 18/06/2010 DATE OF JUDGMENT: 18 June 2010 EX TEMPORE JUDGMENT DATE : 18 June 2010 APPLICANT Dr P Kent [litigant in person) LEGAL REPRESENTATIVES: RESPONDENT Mr P Wood, solicitor Philip R Wood, Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes C Galwey AC 18 June 2010 20250 of 2010 Kent v Karpisek 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 Burraneer Bay Road Caringbah against the owner of trees growing in a property in Gannons Road Caringbah. 2 The applicant is seeking the removal of all overhanging branches and one of three trunks of a Fig tree and the drilling of a eucalypt to determine the presence or otherwise of termites. 3 The applicant is concerned that branches from the fig that overhang his roof may cause damage to the tiles. He is also concerned that one of the trunks of the fig is causing damage to the dividing fence. He contends that the roots of the tree have displaced the gravel path between the fence and the house and that, in the future, roots may cause damage to the foundations of his house. 4 With respect to the eucalypt, the applicant is concerned that dead branches falling from the tree may cause injury. He is also concerned that the entire tree may fail onto his property. This concern is based on the failure of another eucalypt some 4-5 years ago. This tree fell onto an adjacent tennis court and close to the corner of his town house. The applicant was uncertain as to whether the tree that fell was dead or alive at the time. 5 Each of the trees 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. As the applicant is concerned about future damage, the Court has regularly referred to the guidance decision given in Yang v Scerri [2007] NSWLEC 592. As a rule of thumb, the near future is a period of 12 months from the date of the determination. 6 The trees are a Ficus sp., possibly Ficus virens (White Fig) and a Eucalyptus grandis (Flooded Gum). They are growing at the rear of the respondent's property near the northern boundary fence. The trees predate the applicant's property and are part of a large garden in which rainforest plants predominate. The respondent's solicitor tendered a 1993 letter from Sutherland Shire Council indicating that council had included a condition in a development consent for the building in which the applicant now resides that specified that the fig was not to be damaged. 7 The Fig (identified as a Magnolia grandiflora in the application) is a healthy specimen that consists of three main trunks. One trunk abuts the metal dividing fence between the applicant's and respondent's properties. It is this trunk that the applicant wants removed. Whilst there is some included bark between these stems, there is no indication of any instability. 8 The respondent pruned branches overhanging the applicant's property at least three years ago. This work appears to have been carried out in accordance with the Australian Standard for pruning. However, some regrowth has occurred and some of the overhanging branches are touching the applicant's roof. The attachment of the branches appeared normal and sound. There was very little dead wood of any size any where in the tree. 9 The applicant stated that he knows of no damage that the tree has caused to his roof but he is concerned about future damage. 10 With respect to the fence, we observed some minor displacement of one of the panels adjacent to the northern-most trunk. We were informed that the fence was constructed well before 1993 when the applicant's property was developed. We observed other areas of displacement associated with another tree on the respondent's property and about which the applicant was unconcerned. 11 With respect to the mounding of the gravel path and the potential damage to the foundations of the house, there is no material damage to the path; the surface is functional and the use of the space is infrequent. We observed no cracking in either the house or in a section of paved pathway in close proximity to the Fig. 12 Considering the tests under s 10(2), the fig has not caused damage to the roof nor is it likely to in the near future as the branches appear well attached. In Robson v Leischke [2008] NSWLEC 152 at 56, Preston CJ states that mere encroachment is not damage, and in 169 that damage must be proved. 13 With respect to the fence, it appears as though the fig has contributed to the displacement and therefore could be said to have caused damage. As this satisfies one of the jurisdictional tests under s 10(2), the Court may make an order. However, s 9 of the Act provides for discretion in the making of orders. Before making an order, the Court must consider a number of matters under s 12 of the Act. 14 In this regard, the tree makes a contribution to the scenic value of the land on which it is growing and to the locality. The canopy of this and other trees on the respondent's property can be seen from some distance and therefore make a contribution to public amenity. The tree will also contribute to the local ecosystem. The fence in question is reasonably old and in less than pristine condition. The displacement is more aesthetic than a matter of being dysfunctional. 15 The applicant seeks an order for the removal of the stem principally for the reason of overhanging branches and presumably to avoid further damage to the fence. After viewing the structures, we are not satisfied that the damage, or the risk of future damage, is such that it requires any order for any intervention with the tree. The remedy sought by the applicant is disproportional to the damage. 16 As a consequence of the forgoing, the application to remove the most northerly of the trunks of the Fig or any overhanging branches is dismissed. 17 The Eucalyptus grandis is a healthy specimen with no obvious structural defects. We were shown several small diameter (less than 15 mm) dead branches, (two of which were about 2 m in length) that the applicant contends could have caused injury had they struck someone. 18 Less than 5% of the tree overhangs the applicant's property and what does overhang appears to be small diameter live branches with healthy foliage. There were no signs to indicate the likelihood of whole tree failure. 19 The applicant seeks orders for the drilling of the tree to determine whether or not termites may be present. This is presumably because any termites that may be present might cause internal damage to the tree that may predispose the tree to failing. This is an action that was open to the applicant before the final hearing. Standard tree directions 5 and 13 given at the preliminary hearing enable an applicant to obtain further information should they require it. However, the Court has no jurisdiction over termites or any other creature that may live in or on trees (see Dooley & anor v Nevell [2007] NSWLEC 715). 20 No damage has been caused by this tree, nor is it likely in the near future to cause damage given the limited extent of any overhanging branches and the healthy condition of the tree. Similarly the likelihood of this tree causing injury to any person is remote. Therefore as none of the tests under s 10(2) are satisfied with respect to this tree, this element of the application is dismissed. 21 In conclusion, the Orders of the Court are that the application in its entirety is dismissed. _______________________ ______________________ 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.