Clune v Falconer [2008] NSWLEC 1458

Land and Environment Court of New South Wales

CITATION : Clune v Falconer [2008] NSWLEC 1458

APPLICANT Robyn Clune PARTIES : RESPONDENT Roger Falconer

FILE NUMBER(S) : 20916 of 2008

CORAM: Fakes AC

KEY ISSUES: Trees (Neighbours) :- Removal of trees: injury to persons.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

Yang v Scerri [2007] NSWLEC 592 CASES CITED: Robson v Leischke [2008] LEC 152 Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 07/11/2008

DATE OF JUDGMENT: 7 November 2008

APPLICANT Robyn Clune, Self Represented LEGAL REPRESENTATIVES:

RESPONDENT N/A

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes AC 7 November 2008

20916 of 2008 Robyn Clune v Roger Falconer JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Ms Robyn Clune of 14 Hodgson St Randwick and the owner of trees located at 16 Hodgson Street. The owner of that property is Mr Roger Falconer. 2 Mr Falconer was not in attendance at the beginning of the on-site hearing but was present just before the judgement was given. He had nothing to add to the proceedings when asked if he would like to do so. All material relating to the matter that had been posted to Mr Falconer by Ms Clune via registered post had been returned to her unopened. As a result of Mr Falconer's late attendance, the trees were viewed only from the applicant's property. 3 The applicant is concerned about several trees to the east of her property, that being the side boundary she shares with Mr Falconer. The trees are one Jacaranda, one dead tree reported to be an African Olive, one Fig (possibly a Port Jackson Fig wrongly identified in the application as a privet) and one Canary Island Date Palm. At the on-site hearing, the applicant withdrew her concerns about the Date Palm. 4 The applicant is seeking the removal of the Jacaranda and the dead olive and the pruning back of the Fig for the following reasons: o The leaves and flowers of the Jacaranda block the gutters causing an overflow that the applicant contends shorts out an outdoor light, o This necessitates the cost of employing someone to clean the gutters, o The leaves and flowers stain part of the metal roof, o Leaf and flower fall onto the paving in the courtyard creates litter and staining and is a nuisance to clean, o The trees block light into her garden, o The fig tree harbours mosquitoes, o The dead olive may contain termites that might cause damage to her property; and o The trees allow access to possums which jump on the roof and cause a disturbance. 5 The applicant also contends that the petals from the Jacaranda are a slip hazard and therefore could cause injury to persons. The application included a claim for compensation for $150.00 for each time the outdoor light needed to be replaced. This matter was not discussed on site and the application contained no tax receipts for such repairs. As a result the claim for compensation is dismissed. 6 The Jacaranda is a healthy tree that has been substantially pruned away from the applicant's property at her expense. Only a small percentage of the canopy now overhangs her property and one section is close to the television aerial. The Jacaranda was in flower at the time of inspection and there were some flowers in the applicant's property. The olive is dead but is unlikely to cause any damage to the applicant's property should it fail. The fig is healthy and some branches do overhang the applicant's courtyard. 7 The applicant stated that the respondent does little to maintain his property. This statement appears to be reasonable given the general unkempt appearance of the respondent's garden. 8 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. 9 The Court must also consider a range of other matters under s 12 of the Act. The relevant clauses in this case are: (a) The trees are wholly located on the respondent's property. (d) The use of the trees by possums indicates that they may some contribution to local biodiversity, (e) The trees do make a contribution to the scenic value of the land on which that are situated (f) There is some value to public amenity as there is a block of home units to the north of the respondent's and applicant's properties. The trees are therefore seen by many people and provide a screen between the units and the respondent's (and applicant's) properties. (h)&(i) The applicant has undertaken pruning works and maintains her property. She has installed gutter guards but these have had limited success. The respondent has taken no steps to maintain his trees. 10 With respect to the concerns raised by the applicant, the Trees (Disputes Between Neighbours) Act 2006 is restricted to actual or potential actual damage being caused to property or injury to persons. In Robson v Leischke [2008] LEC 152 (1 May 2008) at 56, Preston CJ states that mere encroachment is not damage, in 169 that damage must be proved and in 171 annoyance or discomfort to an applicant by such things as leaves and flowers blown onto their property from their neighbour's land is not "damage to property on land' within s7 of this Act unless they also cause damage to property on the neighbour's land. 11 In Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This applies in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. 12 In Robson v Leischke [2008] LEC 152 (1 May 2008) at 189, Preston CJ states that " 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 as habitat." In this matter, the issues about possums, termites and mosquitoes apply to this determination by Chief Justice Preston. 13 The Trees(Disputes Between Neighbours) Act 2006 does not apply to light see Robson v Leischke [2008] LEC 152 (1 May 2008) at 135. 14 The applicant is clearly frustrated with the lack of assistance from the respondent however, the Act can not offer any remedy in this situation as the issues specified in s 10(2) are not adequately satisfied, Therefore the orders of the Court are that the application is refused.