Land and Environment Court New South Wales Medium Neutral Citation: Gennusa & anor v Dangerfield & anor [2015] NSWLEC 1194 Hearing dates: 26 May 2015 Date of orders: 26 May 2015 Decision date: 26 May 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part – see [30] Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; sufficiency of evidence of causation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991 Limitations Act 1969 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Moroney v John [2008] NSWLEC 32 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Mr Phillip Gennusa (First Applicant) Mrs Sarina Gennusa (Second Applicant) Mrs Toni Dangerfield (First Respondent) Mrs Daune Aartsen (Second Respondent) Representation: Applicants: Litigants in person Respondents: Litigants in person File Number(s): 20181 of 2015 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicants who own a property in Putney have applied under s 7, Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of two trees growing on the adjoining property. They are also seeking a sum of $15,560.00 in compensation for damage to their property they allege has been caused by the respondents' trees. 2. The trees are two mature Cinnamomum camphora (Camphor Laurel) growing in the rear yard of the respondents' property and close to the common boundary. The respondents suggest that the trees may be up to 100 years old as they were part of a much older and larger estate that has since been subdivided. They say the trees were planted beside a former tennis court. The respondents do not wish to remove the trees. They contend that the trees were present when the applicants purchased their property some 17 years or so ago and elected to build their dwelling close to the trees. The respondents' evidence (Exhibit 1) includes letters to and from Ryde Council highlighting their concerns about the location of the applicants' dwelling and the severing of roots. 3. The applicants contend that the trees have caused the following damage to property on their land: * Permanent staining and cracking of tiles on a rear balcony; * Lifting and cracking of tiles on stairs leading down from the balcony; * Cracking of brickwork and render on the side of their dwelling; * Destabilisation of part of the common dividing fence; and * Destruction of a TV antenna. 1. The compensation claim includes the following items: * A quote for repair and rectification of the structural work and tiling ($10,010.00); * A quote for the cleaning of gutters ($550.00); * A quote for the antenna ($440.00); * A quote to replace the dividing fence ($4,000.00); and * Reimbursement for the cost of pruning the applicants undertook ($600.00). 1. The applicants have undertaken some of the retiling and repaving themselves. 2. The application is also made on the basis that the trees could cause injury to anyone on their property. The concerns in regards to injury appear to be related to falling branches and the slippery nature of the fruits on the tiles. 3. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. These tests must be applied to any tree the subject of an application. 2. The 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…". Damage 1. Each of the elements of damage is considered in turn. The fence 1. About 12 years ago, the parties shared the cost of installing the timber dividing fence between the parties' properties. The applicants contend that roots from the trees have caused the displacement of the fence. At the hearing it was clear that several panels of the fence are significantly displaced and are leaning towards the applicants' dwelling. However, these sections do not adjoin either of the trees. The panels close to the trees are generally vertical and the steel posts that support the panels are barely displaced. 2. The tops of three palings are broken. The applicants maintain that this damage was caused by branches falling from the respondents' trees. The applicants included photographs of dead branches that had fallen into their property. I find it probable that falling branches have damaged the fence and this is sufficient to satisfy s 10(2)(a) and thus engage the Court's power to make orders under s 9. 3. In determining what if any orders should be made, relevant matters in s 12 must be considered. Relevant here is s 12(h). The applicants' property is downslope of the respondents' property. The applicants' land has been excavated to enable construction of their dwelling. I observed the difference in ground level to be much greater near the sections of fence that are substantially displaced, than the levels near the trees. While no evidence was adduced as to other causes, it is possible that the posts are unable to withstand the weight of soil. The applicants stated that there used to be another tree on the respondents' land in the vicinity of the displaced fence but it has since been removed. Section 4(4) of the Act allows consideration of trees that have been removed that were in existence when the damage (or injury) occurred. However, no evidence was adduced to confirm a nexus between that tree and the damaged fence and nor was that tree included in the application. 4. In considering what, if any orders should be made in regards to the damaged palings, the effect is cosmetic/aesthetic and the damage does not affect the functionality of the fence. The damage is therefore essentially de minimus and too minor to warrant an order of the Court for any rectification at the respondents' expense. I also note that the applicants did not avail themselves of the opportunity for orders to be made for the reminder of the fence under s 13A of the Dividing Fences Act 1991. Guttering 1. The applicants claim that debris falls from the trees and accumulates in the guttering below; during the hearing debris and weeds were observed in the guttering. They stated that the gutters were cleared about 3-4 months ago. While not part of their claim, the applicants stated that because of the build-up of debris, the gutters overflow and there is water damage to part of the façade. 2. As I was not shown any actual damage to the guttering, I cannot be satisfied that the tests in s 10(2)(a) are met; thus the Court's jurisdiction is not engaged. However, if I am wrong in this, as a matter of discretion, no orders would be made for any intervention with the trees on the basis of debris in gutters. The Court has consistently applied a long-standing Tree Dispute Principle published in Barker v Kryiakides [2007] NSWLEC 292 which states 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. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. 1. There are many examples of the application of this Principle and there have been no examples where there are such exceptional circumstances that the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter. Structural damage – tiles, paving, render 1. The applicants included a letter and accompanying photographs from Arch Tanti and Partners Pty Ltd dated 8 July 2003. The profession of the author is not stated on the letter but the applicants said the author was/is an engineer. The letter relevantly states: As requested we visited the abovementioned site to report on the extent of damage caused by two camphor laurel trees located at…Ryde, being the adjoining site. Tree roots have caused cracks to the cement rendered surface on the side elevation of the residence as illustrated on attached photographs marked A & B. Cracks to concrete paths are illustrated on photographs marked C & D. Photograph marked E shows tree roots from the camphor laurel trees penetrating the fence line and advancing towards the side of the residence. The cost of the damage may be around $2500.00, however the tree roots will cause further damage, possibly causing damage to the house footings which may cost several thousand dollars to repair. 1. The author estimates the cost of the removal and suggests the applicants inform the respondents of the present and future damage he opines has and will be caused by the trees. 2. The report is a compendium of photographs. There is no indication of any excavation or of any other investigations being undertaken to substantiate the author's opinion or any consideration of any other potential causes. The tree root shown in photograph E is still there. It appears to have been severed many years ago. The applicants stated that when their dwelling was being constructed, as required by the conditions of development consent, they engaged an arborist to remove overhanging branches and to supervise the cutting of roots. The cracking of the render appears to be much the same now as shown in the photographs taken in 2003. Similar cracking was observed in the render in a part of the front section of the house; the applicants stated this was due to a problem they have with stormwater. 3. As the applicants have not provided any evidence to satisfy the nexus between the trees and the damage to the paving, stairs and render, s 10(2) is not met and the Court has no jurisdiction to make any orders for any interference with the trees on this basis. 4. During the hearing the applicants stated that because of the debris falling from the trees, the tiles and render at the rear of their dwelling were in far worse condition than tiles and render at the front and the presence of the trees diminished their enjoyment of the land. 5. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA at [171], Preston CJ states: 171 However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7. 1. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302, the Tree Dispute Principle in Barker was extended to include the cleaning of mould and slime. The antenna 1. The applicant said that the antenna was damaged in 2005, allegedly by a branch from the closest Camphor Laurel. When asked, the applicants stated that they did not bring this to the attention of the respondents at the time. In Moroney v John [2008] NSWLEC 32 at [32]-[33], the Court has held that s 14(d)(1) of the Limitation Act 1969 applies to compensation claims under the Trees Act. The consequence is that there is a general six-year time limit, from the date of the filing of an application under the Trees Act, for compensation claims for past damage to an applicant's property. 2. Even though there was no evidence to prove causation, the claim for compensation is out of time. It also appears as though the antenna is still functional as it has not been replaced. Injury 1. I am satisfied on the basis of the photographs in the application claim form that dead branches of a size capable of causing injury (and indeed, potentially causing damage) have fallen from the respondents' trees onto the applicants' property. The areas onto which they have fallen are areas likely to be frequently used. 2. In the absence of any independent arboricultural expert evidence put forward by either party, with the arboricultural expertise I bring to the Court, I note that the trees have been inexpertly pruned in the past and a number of large branch stubs remain; there is also some dead wood in the canopies above the applicants' property. However, in my opinion, the greatest risk of potential injury arises from the normal and predictable failure of dead wood which is easily remedied by undertaking periodic removal of it. 3. Therefore I am satisfied that s 10(2)(b) is met and the Court's powers to make orders are engaged. Orders 1. The Orders of the Court are: 1. The application is upheld in part. 2. The application to remove the trees is dismissed. 3. The application for compensation is dismissed. 4. Within 60 days of the date of these orders the respondents are to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove from both Camphor Laurels all dead wood down to 40mm in diameter at its base from all parts of the trees that overhang the applicants' property including a distance of 3m from the dividing fence within the respondents' property. 5. The works in (4) are to be carried out in accordance with the general and specific provision s of AS4373: 2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. 6. The applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and for the safe and efficient carrying out of the works in (4). 7. Every two years, in the month of May, and until such time as the tree/trees is/are removed, the respondents are to carry out the works in order (4). The subsequent pruning is to commence in 2017. 8. The orders in (5) and (6) apply to the orders in (7). __________________ 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: 29 May 2015