Ross v Filactos & anor [2012] NSWLEC 1315

Land and Environment Court New South Wales

Medium Neutral Citation: Ross v Filactos & anor [2012] NSWLEC 1315 Hearing dates: 6 November 2012 Decision date: 06 November 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Potential damage to property; majority of trees on applicant's land Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Freeman v Dillon [2012] NSWLEC 1057 Category: Principal judgment Parties: Mr K Ross (Applicant) Mr C Filactos & Ms H Bitsikas (Respondents) Representation: Applicant: Mr Hill-Smith (Solicitor) Respondents: Mr C Filactos & Ms H Bitsikas (Litigants in person) Applicant: Craney Family Solicitors File Number(s): 20632 of 2012

Judgment 1COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Macquarie Hills against the owners of trees growing on an adjoining property. 2The applicant is seeking orders for the removal of nine conifers at the respondents' expense on the basis that branches may fall from the trees, whole trees may fall over, and the potential bushfire hazard posed by them. The applicant's concern is that any of these events could cause damage to his property. 3In response to the filing of the application, the respondents engaged a surveyor to survey the boundary line, fence line and trees between the parties' properties. 4The survey shows that all but four trees in question are substantially or wholly on the respondents' land. The majority of the trees are on the applicant's land. The dividing fence between the two properties bears little relationship to the actual boundary. 5Section 7 of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the land (that is, the applicant's land), or to prevent injury to any person, as a consequence of a tree to which the Act applies that is situated on adjoining land. That is, the trees must be on the respondent's land and that land must adjoin the applicant's land. 6The Court has no jurisdiction to consider trees on an applicant's land. 7The application contains a photograph of part of a tree resting on the metal dividing fence however there is no caption or any reference to the relevance of that (or any other photograph). The respondents' note that this failure occurred on the Queen's Birthday long weekend in June 2007 [the weekend the Pasher Bulker washed ashore in nearby Newcastle]. The survey shows that the failed section came from a tree growing on the applicant's land. This section of tree has been removed. 8The applicant also contends that a branch fell from one of the trees but no damage was caused. There was no evidence regarding from which tree the branch fell. Several trees have been cut to large stumps since the application was made. 9Apart from the trees being a fire risk, the applicant is concerned that similar failures could occur in similar conditions. 10In applications made under Part 2 of the Act, a key jurisdictional test is satisfaction of s 10(2) of the Act. This states that 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 or is likely to cause injury to any person. 11The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...". 12As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in this matter. 13Of the four trees that are substantially or wholly on the respondents' land, with the expertise I bring to the Court, and in the absence of any independent arboricultural evidence sought by either party, I saw nothing that would indicate either whole or partial failure of a tree or branch that is likely in the near future to cause damage to the applicant's property. 14In regards to the trees being a bushfire hazard, the Court considered fire in Freeman v Dillon [2012] NSWLEC 1057 at [88]: 88Despite this concern and the evidence, I am not satisfied that general bushfire risk posed by trees is within the jurisdiction of the Court under the Trees Act. A tree in itself does not start a fire...a person lights a fire, lightning strike, sparks from machinery etc may start a fire. However, if a bushfire damaged the trees and caused part or all of the tree to fail and cause damage to an applicant's property or injury to any person, then this may engage a consideration of s 12(h)(i) and s12 (i)(i), that is "anything, other than the tree, that has contributed, or is contributing, to any such damage/ injury or likelihood of damage/ injury". As discussed by Preston CJ in Robson at [210] this: " would also allow consideration of extraordinary natural events, acts of God, and their contribution to the damage or the likelihood of damage to property or the likelihood of injury to any person". As no injury or damage has occurred as a result of a bushfire affected tree, this element of the application is dismissed. 15Therefore, as no damage to the applicant's property has occurred as a consequence of a tree being affected by fire, this element of the application is dismissed. 16Both parties raise the issue of costs. Commissioners do not have the jurisdiction to award costs. A separate Notice of Motion must be filed and the matter would be heard by a Judge or Registrar of the Court. 17In conclusion, as s 10(2) is not satisfied for any of the trees in question that are on the respondent's land, the Orders of the Court are: (1)The application 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. Decision last updated: 08 November 2012