Land and Environment Court of New South Wales CITATION : Irugalbandara v Colley [2010] NSWLEC 1017 APPLICANTS Wimal and Candida Irugalbandara PARTIES : RESPONDENTS Ian and Cherie Colley FILE NUMBER(S) : 20821 of 2009 CORAM: Fakes C TREES (NEIGHBOURS) :- Damage to property KEY ISSUES: Injury to persons Compensation LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Yang v Scerri [2007] NSWLEC 592 CASES CITED: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] LEC 152 DATES OF HEARING: 20/01/2010 DATE OF JUDGMENT: 20 January 2010 EX TEMPORE JUDGMENT DATE : 20 January 2010 APPLICANTS Wimal and Candida Irugalbandara (litigants in person) LEGAL REPRESENTATIVES: RESPONDENTS Cherie Colley (litigant in person) Ian Colley (did not appear) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes C 20 January 2010 20821 of 2009 Wimal & Candida Irugalbandara v Ian & Cherie Colley JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by Mr and Mrs Irugalbandara of 5 Kelsall Street Doonside against the owners of a tree growing in the northern corner of the rear of 7 Garbet Place Doonside. The owners of that property are Mr and Mrs Colley. 2 The applicants are seeking the removal of the tree as they contend that it poses a risk of injury to persons and has caused, and could continue to cause, damage to their property. The damage said to have been caused is the blocking of gutters and downpipes leading to water damage to eaves and outdoor furniture under the pergola plus staining of tinted polycarbonate sheeting on the pergola roof. The applicants are also concerned about the future damage that roots from the tree may cause to the pergola slab, their house and plumbing system. The risk of injury is that posed by sticks, leaves and fruit that fall from the tree that could be a slipping or tripping hazard. 3 They are also seeking compensation of a sum of $2076 being comprised of: $676 for the replacement of polycarbonate sheeting for a pergola roof, $350 for cleaning of downpipes, $800 for replacement of gutter guard and $250 for the painting of eaves. 4 The tree was inspected from both properties. It is a Corymbia citriodora (Lemon-scented Gum) with bark more characteristic of a Spotted Gum (Corymbia maculata). It is in good health with very little dead wood, probably less than 2%. At about 3m above ground, the central leader bifurcates and at this point there is a minor bark inclusion indicated by reaction wood. This union appears sound. A first order branch on the southern side of the tree grows towards and overhangs the applicants' property. The attachment of this branch is sound. Other elements of the tree also overhang the applicants' property. Throughout the canopy there is some evidence of pruning and the normal shedding of dead wood. 5 The tree was planted by the respondents in September/ October 1990, some months after they moved into their house to provide shade and amenity. The tree is now about 10 m tall. It is located about 1 m from the corner boundary fences with two adjoining neighbours. A garden shed, used regularly by the respondents' son, is located beneath the tree. 6 On the applicants' property, the tree overhangs an outdoor entertainment area covered by a pergola. The pergola has a pitched roof and adjoins the house. The applicants purchased their property in 1999 and built the pergola in 2000. 7 I was shown a bundle of dead branches, some of which were many years old and may have been from another tree removed from the respondents' property. The majority were branchlets between 5 and 15mm in diameter and less than 1m long. I was shown a container of bark and leaves and another pile of leaves, the latter said to have been from a recent raking of the lawn on either side of the pergola. I was also shown small bags of detritus said to be from the downpipe and gutter. 8 Mrs Irugalbandara stated that the small sticks and fruits on the ground constituted a risk of injury and a slipping hazard. Apart from a small scratch I was shown on Mrs Irugalbandara's toe, said to have been caused by a dead stick, as yet, no injury has been caused by the tree. The applicants were insistent that future injury may be caused should a branch fail. 9 The main concern with property damage relates to the build up of leaves and debris from the tree on the roof and in the gutters of the pergola. This material is said to block the gutters thus leading to an overflow that makes the outdoor entertainment area unusable in wet weather. I was shown leaf litter allowed to accumulate on the roof since last October in preparation for the on-site hearing. The polycarbonate sheeting had no apparent physical damage and whilst there was some discolouration, the tinted sheeting appeared functional. 10 The applicants are also concerned about future damage by roots to the pergola slab and by the crown to the antenna. There is no evidence of any cracking or lifting of the pergola slab and the crown of the tree is some 3-4m away from the antenna. 11 Under s10(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 is a risk of 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. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay. 12 The Court must consider a number of matters under s12 of the Act. The relevant clauses in this case are; (a) The tree is wholly located on the respondent's property. (d) The will make a contribution to biodiversity and to the local ecosystem. (e) The tree contributes to the scenic value of the land on which it is growing and it was planted to provide shade and amenity. (f) The tree has value to public amenity. There are few private trees of any stature in the vicinity and can be seen from the street and nearby properties. (h)&(i) There tree was there and obvious, although smaller, when the applicants purchased their property and built the pergola. The respondents sought an arborist's report in response to this application. The report prepared by Australian Tree Consultants in December 2009 concludes that the tree has a minor hazard rating and there are no arboricultural grounds to warrant the removal of the tree or the removal of all of the branches overhanging the applicants' property. They state that some minor pruning would be reasonable. 13 In respect to the concerns raised by the applicants, the Trees Act 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. 14 The damage the applicants contend has been caused is due to leaf drop. 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. It would appear that leaf litter has been allowed to build up. The decision by the applicants to leave debris in the gutters for 3-4 months is their own. 15 Returning to s 10(2). The tree inspections carried out by the consulting arborists and then by me at the on-site hearing show nothing in the canopy that is likely, in the near future, to cause damage to property or is a risk of injury to persons. There is almost no dead wood in the tree and what there is, is so small that it is very unlikely to cause damage or injury. The risk of damage from roots is remote. 16 After considering the evidence and hearing from the parties, I conclude that none of the tests under s 10(2) are adequately met and therefore the Court has no jurisdiction to make Orders. While the consulting arborists stated that some minor pruning of the overhanging sections might be reasonable, for the reasons given above, the Court has no jurisdiction to make such an order. 17 The Orders of the Court are: 1. The application in its entirety is dismissed. _______________________ J Fakes 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.