Lasserre v Bekola Pty Ltd [2015] NSWLEC 1015

Land and Environment Court New South Wales

Medium Neutral Citation: Lasserre v Bekola Pty Ltd [2015] NSWLEC 1015 Hearing dates: 9 February 2015 Date of orders: 09 February 2015 Decision date: 09 February 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; compensation; no evidence of quantum of damage occurring during period of applicant's ownership Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Act 2005 Cases Cited: Liang & anor v Marsh & anor [2011] NSWLEC 1026 McLaren v Lewis No. 2 [2011] NSWLEC 176 Robson v Leischke [2008] NSWLEC 152 Category: Principal judgment Parties: Ms D Lasserre (Applicant) Bekola Pty Ltd (Respondent) Representation: Counsel: Applicant: Ms D Lasserre (Litigant in person) Respondent: Ms V Baker (Solicitor)

Solicitors: Respondent: Victoria Baker Solicitor File Number(s): 20960 of 2014

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: In November 2014 the applicant lodged an application with the Land and Environment Court under s 7, Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), amongst other things, seeking orders for the removal of a Silky Oak tree growing on an adjoining property in Parkes. 2. The orders were sought on the basis that the tree had caused, and could continue to cause, damage to the applicant's property and could pose a risk of injury to anyone on her property – in particular, anyone using the pool. 3. On 27 January 2015, the tree was struck by lightning. The applicant notified the Court and supplied photographs of the damaged tree. Given the applicant's concerns that the damaged tree created a greater risk of injury, the hearing date was brought forward to 9 February. 4. The respondent removed the tree on 6 February 2015. 5. While an element of the applicant's claim has been addressed and the tree no longer poses a risk of causing further damage or any injury, the remainder of the claim must be considered. 6. The applicant seeks the following orders: * Reimbursement of all costs associated with the making of the application; and * Compensation for damage [to pool equipment], repair of damage to a shed and roof, and for time spent gathering information and quotes for the application. 1. Section 9(1) of the Act enables the Court to make any such orders as it thinks fit to remedy, restrain or prevent damage to property or to prevent injury to any person, as a consequence of the tree the subject of the application. 2. Without limiting the Court's powers under s 9(1), s 9(2)(h)/(i) enables the court to order the payment of costs and or compensation. However, Commissioners of the Court do not have the power to order the payment of costs such as legal fees, expert reports, application fees, personal expenses and any other "costs" within the meaning of the Uniform Civil Procedure Act 2005 and the Land and Environment Court Rules 2007 (see McLaren v Lewis No. 2 [2011] NSWLEC 176). Should either party wish to do so, a separate Notice of Motion must be filed and heard by a Judge or Registrar of the Court. 3. In order to engage the Court's powers to make orders, a number of jurisdictional tests must be satisfied. 4. The tree the subject of the application must be/ have been substantially located on adjoining land. While the remaining stump indicates that the tree was not directly behind the applicant's land, the property on which the tree grew is land adjoining the applicant's property. 5. Section 4(4) of the Act states that a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on the land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred. 6. I am satisfied that the tree stump (and therefore the tree) is on adjoining land. 7. The next relevant jurisdictional test to be satisfied is s 10(2). This states that the Court must not make an order under Part 2 unless it is satisfied that the tree has caused, is causing, or could in the near future cause, damage to the applicant's property, or is likely to cause injury to any person. As the tree has been removed, the only element of that section to be determined is what damage did it cause? 8. The applicant contends that branches of the tree scratched part of the roof of a shed over which the branches grew. She maintains that this has reduced the functionality of the roof. Similarly, the applicant contends that leaf litter has accumulated in the guttering causing rust, holes and poor drainage. The applicant also states in the claim form that falling limbs damaged the shed and dividing fence. 9. Apart from the shed, the applicant claims that leaf litter from the tree resulted in the blocking of and damage to the pool cleaning system. This necessitated the replacement of a chlorinator and cleaning head at a cost of $1304. A pool pump was replaced at a cost of $598.44. 10. During the on-site hearing, the applicant elected not to press the elements of her claim relating to the shed and gutter, however, the applicant seeks compensation for the money spent on replacing the pool cleaning equipment. 11. In putting the applicant's case at its highest, I am satisfied on the photographic evidence included in the claim form, that leaves from the Silky Oak contributed to the damage to the applicant's pool cleaning system and the Court's jurisdiction to consider what, if any orders should be made, is engaged. I note the finding of Preston CJ in Robson v Leischke [2008] NSWLEC 152 at paragraph [179] that the tree the subject of an application need only be a cause of damage in order to engage the Court's jurisdiction. 12. In determining what orders should be made, the Court must consider a number of discretionary matters under s 12 of the Act. Of relevance in this case is s 12(h)(i) – is there anything other than the tree that has contributed to the damage including any act or omission by the applicant. 13. It is useful to record the sequence of events leading up to the making of the application. 14. The applicant purchased her property in September 2013. She stated that it took a few months to become aware of problems with the pool cleaning system and other issues arising from the tree. 15. In December 2013, some three months after purchase, the applicant replaced the head of the pool cleaning device and the chlorinator. A month later, in January 2014, the applicant had the pool pump replaced. She maintains that this action was necessitated by leaves blocking the system. 16. After replacing the various parts of pool equipment, the applicant wrote to someone identified as an owner of the respondent's property and advised them of the problems associated with the tree. The applicant requested that the tree be removed. As nothing came from that request, the applicant filed the application with the Court in November 2014. 17. As discussed in Liang & anor v Marsh & anor [2011] NSWLEC 1026, paragraphs [33]-[35], the applicant must own the property alleged to have been damaged by a tree at the time the damage occurred. That is, did the applicant come to the damage or the nuisance? 18. Therefore the questions to be answered before any orders can be made requiring the respondent to pay any compensation are: What damage occurred during the 3-4 month period between the applicant's purchase of the property and replacing the parts of pool equipment?; and What percentage of the costs arise from that damage? 19. There is no evidence of any pre-purchase inspection report. The age of the pool is unknown but opinions proffered by both parties during the hearing put it at between about 15-20 years. There is no evidence of any previous maintenance regime. Therefore, normal wear and tear may be a factor. It is also possible that debris built up within the system over an extended period of time. When the chlorinator and pump were replaced, no service report was prepared that may have identified any contributing factors. 20. Therefore, there is no evidence of the extent of any damage that may have arisen during the applicant's brief period of ownership between purchase, discovery and replacement. 21. There has been no damage necessitating any expenditure of money caused to the system since the pool equipment was replaced, rather, the applicant has carried out routine cleaning. 22. While the applicant maintains it was necessary at the time to replace the cleaning and filtering equipment, no notice was given to the respondent advising them of the damage. Therefore the respondent was not given an adequate opportunity to assess the damage and be consulted about the repairs. 23. As the tree has been removed, there will be no ongoing source of new leaves. The only existing source of Silky Oak leaves that may still blow into the pool are those on the roof of the shed. These can be readily removed by the applicant. 24. Therefore after considering the evidence and hearing from the parties, the orders of the Court are: 1. The application is dismissed. ______________________ Judy Fakes Commissioner of the Court