Giuliani-Bruno v Rumman & anor [2014] NSWLEC 1069

Land and Environment Court New South Wales

Medium Neutral Citation: Giuliani-Bruno v Rumman & anor [2014] NSWLEC 1069 Hearing dates: 16 April 2014 Decision date: 16 April 2014 Jurisdiction: Class 2 Before: Fakes C Decision: The application is dismissed Catchwords: TREES [NEIGHBOURS] Damage; potential injury; no evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: C P Giuliani-Bruno (Applicant) H Rumman (First Respondent) L Merdawi (Second Respondent) Representation: Applicant: Ms C P Giuliani-Bruno (Litigant in person) Respondents: Mr H Rumman (Litigant in person) File Number(s): 20072 of 2014

Judgment 1COMMISSIONER: The applicant is seeking orders for the removal of all 13 trees growing along the rear of the respondents' property and close to the dividing fence between the parties' properties. She is also seeking orders for the repair of damage to the edge of stencilled concrete at the rear of her property that she contends has been caused by the roots of the respondents' trees. The applicant is also concerned about future damage that may be caused to the pipes that service the pool pump and pool at the rear of her property. 2Apart from damage, the applicant is also concerned that branches falling from the trees in strong winds may injure her small children. She is also concerned that injury may arise should a branch fail onto the area in which pool chemicals are stored. Apart from injury caused by the branches, the applicant is also concerned that uneven concrete, as a consequence of root damage, could be a tripping hazard. 3The applicant estimates that repairs to the concrete will cost about $2000. She is also claiming the costs associated with the title search and filing of the application with the Court. 4In regards to the latter costs, Commissioners do not have the jurisdiction to award such costs. If she wishes to, the applicant can file a Notice of Motion, which will then be heard by a Registrar or Judge of the Court. 5The application is made pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 6In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This states that the Court must not make an order under this Part unless it is satisfied that any of the trees about which an application is made, 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. 7The 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...". 8As 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. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, any relevant evidence, and the circumstances of the site apparent at the time of the hearing. 9The respondents' trees were inspected. They were planted in about 2011 as a condition of development consent for the respondents' new dwelling. They are healthy trees. While there are several larger specimens of more advanced stock, the majority of the trees are between 2-2.5m tall. The trees are a cultivar of Lillypilly, (Syzygium paniculata Backyard Bliss) -developed as a hedging plant. 10There is a level change between the parties' properties, the respondents' property being slightly upslope. Due to earlier problems with soil washing onto the applicant's property, the builder installed a drain beneath the trees. I also observed a low retaining structure between the garden bed and the metal dividing fence. 11The damage to the stencilled concrete is shown in photographs attached to the applicant's material. There is a linear crack along the concrete edge close to the fence. The crack appears to be the result of subsidence of that narrow section of concrete. 12The applicant contends that the crack appeared when the respondents' trees became visible above the fence, and therefore in her opinion, this was proof that the trees must be responsible for the crack. 13The applicant was unable to show me any evidence of any roots as she said this would necessitate removing concrete. 14In regards to the pool pipes, no damage has occurred and the applicant did not adduce any evidence to demonstrate that such damage was imminent and that the roots of the respondents' trees are the likely cause. 15There is no evidence that the trees have caused any injury. The applicant is concerned that the trees move in the wind and branches may fall. There was no evidence of any branches having fallen into her property. 16Neither party engaged an arborist or any other expert. With the expertise I bring to the Court I consider that the branch structure of this cultivar is very compact. I saw nothing to lead me to conclude that any injury is likely to occur in the foreseeable future to anyone as a consequence of the respondents' trees. As stated above, most of the trees are only just above the fence; the taller ones are about 700mm or so above the fence line. 17The subsidence of the concrete is atypical of the type of damage that usually arises from root growth. Typically, concrete is lifted. The uniformity and type of crack would suggest something other than roots is the cause, however, the cause remains a mystery. 18Therefore, I am not satisfied to the necessary extent that any part of s 10(2) is met and therefore the Court has no jurisdiction to make any orders for any interference with the trees, and certainly not removal. 19As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence. 20In conclusion, the Orders of the Court are: (1)The application is dismissed. _______________________ Judy 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: 16 April 2014