Toma v Mergen [2011] NSWLEC 1251

Land and Environment Court New South Wales

Medium Neutral Citation: Toma v Mergen [2011] NSWLEC 1251 Hearing dates: 29 July 2011 Decision date: 29 July 2011 Jurisdiction: Class 2 Before: Hewett AC Decision: Application upheld in part Catchwords: TREES [NEIGHBOURS]; property on the land; insects and spiders are not trees Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: S Toma (Applicant)

M L Mergen (Respondent) Representation: Solicitors Mr Zarb (Applicant)

Ms Marta Lilian Mergen (Respondent in person) File Number(s): 20378 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Stanbrook Street Fairfield Heights against the owner of tree growing on an adjoining property in Stanbrook Street. 2The applicant was represented at the hearing by Mr Zarb, solicitor. 3The applicant contends that three trees on the respondent's land have caused her roof gutters to become blocked, leading to water ingress into her garage. She contends that a further three trees on the respondent's land block sunlight to her rear garden and clothesline, although two of these trees are about 2 m in height at present and she contends that they will in the future cause a loss of sunlight. 4The applicant further contends that a creeper plant growing on the applicant's garden shed and on the side fence is a source of spiders, insects and dirt. 5The applicant seeks orders to remove one tree and immediately trim a second tree, so that she can erect a carport. She seeks orders for the regular trimming of three trees to prevent leaf fall to her property. She seeks orders for the removal of two newly planted trees near her side fence and the cleaning up of all climbing plants covering the respondent's garage walls and the common fence. Finally, she seeks orders restricting the respondent from planting trees near the fence and that any trees that are planted in future are not to get any higher than the boundary fence. 6It was accepted by the parties that before an order can be made under the Act, the Court must be satisfied as to the existence of a causal connection between a tree that is the subject of an application and the damage or injury claimed by the applicant. 7Under s 10(2)(a) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future, to cause damage to the applicant's property. 8Where it has been determined that the Court does have jurisdiction, matters under s 12 are to be considered. 9It was explained to the parties that each of the trees would need to be considered individually. In this matter, I have adopted the tree numbering as shown on the sketch plan submitted by the applicant. 10T1 is a Banksia tree ( Banksia integrifolia ). It is situated in the front garden of the respondent's land and close to the boundary fence. It is about 8 m in height and leans toward the boundary extending slightly over the applicant's driveway. The applicant contends that as a result of the encroachment of the canopy of this tree, she will not be able to construct a carport for which she has Council consent. 11Mr Zarb, for the applicant, submits that a Council planner advised the applicant that she would need to negotiate pruning with her neighbour when the time came to erect the carport. 12Part 2 s 7 of the Act states: An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on land or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. 13The relevant part of this section is 'property on the land'. At the time of the hearing, the carport had not been erected and therefore cannot be considered as property 'on the land'. As a consequence of the foregoing, the Court's jurisdiction is not enlivened and no order can be made in relation to T1. 14T2 is a 10 m high paperbark tree ( Melaleuca bracteata ) and T3 is a 1215 m high Lilly Pilly ( Syzygium paniculatum ). Both trees are situated close to the boundary fence and their canopies extend above the applicant's tile roof. One branch of T2 and a number of branches of T3 are in direct contact with the ridge capping and adjacent tiles on the roof. 15The applicant contends that leaves from trees T2 and T3 have caused her roof gutters and downpipes to block, resulting in her needing to have the gutters cleaned every 3 months. 16As a matter of jurisdiction (as discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152 at 171 and 172), the mere deposition of material does not cause damage and enliven the Court's jurisdiction under the Trees Act. I did not observe any damage to the applicant's property from the deposition of such material. If I am wrong on that point, I consider the Tree Dispute Principle adopted by the Court with respect to trees in urban environments and published in Barker v Kyriakides [2007] NSWLEC 292 to be appropriate in this matter. 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. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. 17I see no reason to depart from this principle in considering the application to prune trees T2 and T3. However, I am satisfied that T2 and T3 are likely to damage the applicant's roof as a result of the branches being in direct and constant contact with the ridge capping and tiles. I am also satisfied as to the likelihood of these two trees causing damage in the next 12 months, that being a test that has been adopted in the past by the Court, consistent with the guidance given in Yang v Scerri [2007] NSWLEC 592. As a consequence, the Court's jurisdiction is enlivened and orders can be made. 18T7 is a Virginia Creeper ( Parthenocissus tricuspidata ) a woody vine growing on the respondent's garage wall but at the time of the hearing this vine was not growing on the boundary fence as stated in the application. Section 4 of the Trees (Disputes Between Neighbours) Regulation 2007 states: For the purposes of the definition of tree in section 3 (1) of the Act, bamboo and any plant that is a vine are prescribed. 19Whilst T7 meets the definition 'tree' there is no damage or injury caused by this vine. The applicant's contention that the vine harbours 'spiders, insects and dirt' is not a matter that enlivens the Court's jurisdiction. In Robson v Leischke [2008] NSWLEC 152 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. 20As a consequence of the foregoing, no orders can be made with respect to tree T7. 21T4 is a mature Camphor laurel (Cinnamomum camphora) situated in the respondent's rear garden about 1.5 m from the boundary fence. The tree is about 15 m in height. It has been lopped in the past and some regrowth now extends up to 3 m over the applicant's rear garden. The applicant contends that leaves from this tree accumulate over a stormwater drain inlet in her rear garden, causing it to block from time to time. 22As previously stated, the accumulation of leaves is not damage caused by a tree and therefore the principle concerning normal maintenance applies in this instance and no orders will be made concerning T4. 23The applicant contends that T5 and T6, being new Lilly Pilly trees planted in the respondent's rear garden, will at some time in the future, block sunlight to her garden and clothesline. This is not damage to property or injury to persons and therefore the Court's jurisdiction is not enlivened with respect to T5 and T6. 24Before making an order, which in this matter concerns trees T2 and T3, the Court is required to consider matters under s12 of the Act. The relevant matters are: (a) the trees are wholly on the respondent's land. (b2) the tree can be pruned without severely impacting on their form or health. (d) the trees do contribute to the local ecosystem and to biodiversity as they are native species producing shade, forage and seasonal fruit. (e) the trees contribute to public amenity as a result of their visual prominence, shading and general softening of an urban area that is characterised by a low level of tree cover. (h) (ii) the applicant paid for the respondent's trees to be pruned 6 years ago. 25As a consequence of the foregoing the orders of the Court are: (1)The application is upheld in part. (2)The respondent is to engage and pay for an AQF level 3 arborist with the necessary insurances, to prune those branches of tree 2 ( Melaleuca bracteata ) and tree 3 ( Syyigium ) that are in direct contact with the respondent's roof tiles and ridge capping. The pruning is to achieve a clearance of not less than 1 metre from the respondent's tiles and ridge capping. (3)The work in (2) is to be undertaken in accordance with AS 4373-2006 and the NSW Workcover Industry Code of Practice for Amenity Trees. (4)The work in (2) is to be completed within 30 days of the date of these orders. (5)The applicant is to provide access to her property for the respondent's tree contractor to the extent necessary to permit the safe and efficient execution of the works. (6)The respondent is to provide the applicant with not less than three (3) working days notice of the need to access the applicant's property to carry out the work. Philip Hewett 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. Decision last updated: 26 August 2011