Hill v Drysdale & Harvey; Craike v Drysdale & Harvey [2010] NSWLEC 1147

Land and Environment Court of New South Wales

CITATION : Hill v Drysdale & Harvey; Craike v Drysdale & Harvey [2010] NSWLEC 1147

APPLICANTS - FIRST MATTER Bruce and Helen Hill

APPLICANTS - SECOND MATTER PARTIES : Graham and Barbara Craike

RESPONDENTS - BOTH MATTERS Meredith Drysdale Stephen Harvey

FILE NUMBER(S) : 20211; 20212 of 2010

CORAM: Fakes C - Hewett AC

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property Risk of injury

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] NSWLEC 152

DATES OF HEARING: 17 June 2010

EX TEMPORE JUDGMENT DATE : 17 June 2010

APPLICANTS In person (both matters) LEGAL REPRESENTATIVES: RESPONDENTS In person (both matters)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C Hewett AC

17 June 2010

20211 of 2010 Craike v Drysdale & Harvey 20212 of 2010 Hill v Drysdale & Harvey JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: These are applications pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning four trees growing on a property at George Evans Road Killarney Vale. The first application is made by Mr and Mrs Hill, also of George Evans Road and the second application is made by Mr and Mrs Craike who reside in Robertson Road Killarney Vale. Their property is at the rear of the respondents'. 2 Both applications are seeking orders for the removal or pruning of the trees. 3 The Hills contend that leaves and debris from the trees could block their gutters and that leaves stain the water collected from the roof. This water is used for a variety of purposes including washing clothes. They are concerned that the need to use a ladder to access the roof in order to clear the gutters could lead to injury. Their main contention is that small fruit that drops or blows onto their rear paved garden is a slip hazard. 4 The Craikes contend that branches of any of the trees that adjoin their property may fail and cause damage to their property. They are most concerned about branches that have been lopped and therefore not pruned in accordance with the Australian Standard for pruning. 5 They are also concerned about the dropping of leaves and small branches on to the roof of the garage and carport located beneath one of the trees. They say that the leaves block the gutters leading to overflow which subsequently leads to loss of soil and which has also contributed to the lean of, and damage to, the timber dividing fence at the rear of their property. As with the Hills, they are also concerned about the risks associated with using a ladder to access the roof in order to clear the gutters. 6 The Craikes also contend that roots from the trees could cause damage to their sewer and storm water pipes. They said that on two occasions a plumber has removed tree roots from the sewer in the vicinity of the trees. They also state that leaves from the Eucalypts stain their concrete driveway. 7 The trees were inspected from all properties. Under s 10(2) of the Act the Court must not make an order unless it is satisfied that any tree subject to an application has caused, is causing, or is likely in the near future to cause, damage to an applicant's property, or is likely to cause injury to any person. These tests must be applied to each tree to which an application has been made. 8 As both applicants are concerned to an extent about future damage, the Court has consistently applied the guidance decision given in Yang v Scerri [2007] NSWLEC 592 at para 14, the Court determined the following meaning of 'the near future'. Ordinarily, the near future would involve a time period extending from the date of determination of the application to 12 months. After 12 months, it would be difficult to describe a period as being " in the near future " or being close in time to the date of determination of the application. We say "ordinarily" because there may be, in the particular circumstances of the case, reason to adopt a longer period than 12 months. The adoption of a 12 month rule of thumb period means that in order to satisfy the third test in s 10(2)(a), the tree concerned would need to be likely to cause damage to property within a period of 12 months after the date of determination of the application. If it is not likely to do so within that period but rather in a longer period, the third test in s 10(2)(a) could not the satisfied and the Court would have no power to make an order in relation to the tree (assuming that no other test under s 10(2)(a) or (b) is satisfied). This would not prevent a further application being made in the future if the tree concerned becomes likely, in a future period beyond 12 months, to cause damage to property. 9 The first tree we inspected is a Eucalyptus sp., quite probably a Grey Gum hybrid, growing in the respondents' front garden. The trunk of this tree is some 4-5 m to the south east of the Hill's dwelling. The tree is healthy and there are no obvious structural defects. 10 Mr Hill contends that it is the leaves of this tree that could block his gutters and stain the water. At the time of the on-site hearing, there were no branches overhanging the Hill's property. There was evidence of branch lopping that was undertaken by the respondents in April this year. 11 Mr Hill stated that there was no blockage or damage actually caused by this tree, the main concern is potential injury that may be the result of using a ladder to access the roof in order to clean the gutters. 12 As this tree is not causing, has not caused, and is unlikely in the near future to cause damage to the Hill's property nor is there any part of the tree itself that is likely to cause injury to any person, none of the tests under s 10(2) are satisfied and therefore the Court has no jurisdiction to make an order with respect to the Grey Gum. The Court has no jurisdiction over the use of ladders. Therefore this element of the Hill's application is dismissed. 13 Tree two is a Callistemon salignus (Willow Bottlebrush) growing in the far north-western corner of the respondents' property. This tree is subject to both applications. This tree was severely reduced in height and width in April this year. 14 The Hills contend that the fruit and flower residue from this tree create a slipping hazard on the paving underneath their clothesline that is located adjacent to this tree. At the time of the hearing, there was no overhanging foliage and there was no evidence of debris from this tree on the paving. 15 The Craikes contend that leaves from this tree may blow into their property. Similarly, no branches overhang the Craike's property. 16 As none of the tests under s 10(2) are satisfied with respect to the Callistemon, this element of both applications is dismissed. 17 However, if we are wrong on the jurisdictional tests with respect to the risk of injury in the Hill's application, the Court has consistently applied the tree dispute principle published in Barker v Kyriakides [2007] NSWLEC 292. In this principle it is considered that 'For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment'. 18 The principle goes on to state that it is reasonable that such maintenance is done on a regular basis. It further states that 'The dropping of leaves, flowers, fruits, seeds or small elements of dead wood, by urban trees, will not ordinarily provide the basis for ordering removal of or intervention with a tree'. Even if we are wrong about the lack of satisfaction of the jurisdictional test for the risk of injury associated with the fruit, in this matter we see no reason to depart from the principle in Barker v Kyriakides and we are satisfied that the application of this principle, as a matter of discretion warrants the refusal of this element of the application. 19 The third tree is a Eucalyptus saligna (Sydney Blue Gum) growing near the north-western corner of the respondents' property approximately 300 mm from the dividing fence with the Craikes and approximately 2.5 m from the dividing fence with the Hills. 20 Some of the branches on the northern side of the tree were lopped in April 2010 and lopping was also undertaken some 2-3 years ago on the northern and western sides of the tree, these being the sides closest to both applicants. 21 There are no branches from this tree overhanging the Hill's property. However, they contend that leaves, fruit and small branches blow onto their paving and create a slipping hazard. Whilst these concerns are strongly held, they are unproven. We observed a small branchlet some 300 mm or so in length on the paving, however for the same reasons given for the Callistemon, this element of the Hill's application is dismissed. 22 With respect to the Craikes, they contend that as the branches have not been pruned in accordance with the Australian Standard for pruning, they may fail and cause damage to their property. We observed that no epicormic shoots have failed from the previously lopped branches and appear unlikely to do so in the near future. There were no other indications that any other above-ground part of the tree is likely to cause damage. 23 The Craikes contend that the roots of this tree have blocked their sewer. The last occasion was some 15-18 months ago. No roots were available for inspection and there was no record from the plumber. As the sewer is not blocked and there is no indication that the roots from this tree have caused or could cause damage, none of the tests under s 10(2) are satisfied with respect to this tree and therefore this element of the Craik's application is dismissed. 24 Tree four is another Eucalyptus saligna growing towards the north-eastern end of the respondents' property. Some lower branches to the north and west were lopped in April 2010. Part of the tree overhangs the Craiks' garage and carport by about 3m. 25 The Craikes' main concerns are the blocking of the gutters by leaves that causes overflowing and subsequent soil erosion. This flooding and erosion are said to have contributed to the leaning of the timber dividing fence between the Craikes and the respondents. 26 It was noted that one of the downpipes from the carport is directed onto the ground near the fence. Mr Craike was unable to explain, when asked to do so, how this differed from flooding said to be caused by leaf blockage. We saw no evidence of soil erosion. We were informed that the fence is more than 18 years old. 27 In these matters the applicant must prove, on the balance of probability, the nexus between the alleged damage and the tree. 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. 28 There is no evidence that this tree has caused any damage to the Craike's property. The overhanging branches are relatively small and appear to have sound attachments. We saw one eucalypt leaf on the driveway and no staining. There is no evidence that this tree is likely, in the near future, to cause damage to any property. Therefore as none of the tests under s 10(2) are satisfied with respect to this tree, this element of the Craike's application is dismissed.