Land and Environment Court New South Wales Medium Neutral Citation: Patane v Proops & Anor [2015] NSWLEC 1222 Hearing dates: 5 June 2015 Date of orders: 05 June 2015 Decision date: 05 June 2015 Jurisdiction: Class 2 Before: Durland AC Decision: The application is upheld Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage, injury, compensation, palm frond pruning ordered. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Salvatore Patane (Applicant) Paul Proops (First Respondent) Jann Proops (Second Respondent) Representation: Counsel: Salvatore Patane, litigant in person (Applicant) Paul Proops, litigant in person (First Respondent) Jann Proops, litigant in person (Second Respondent) Solicitors: - File Number(s): 20211 of 2015 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning two trees located on a property in Five Dock. The trees are identified on the application as Tree 1 (Palm) and Tree 2 (Murraya). 2. The trees are located close to the side boundary fence at the rear of a property owned by Mr and Mrs Proops (the respondents). 3. Mr Patane (the applicant) is seeking orders for the removal of the palm and Murraya and is also seeking orders for compensation in relation to the property damage he contends has been caused by the falling palm fronds. In addition Mr Patane is seeking compensation for the cost of the application fee. 4. The provisions of section 10(2) of the Trees Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application. These tests are: Has the tree caused damage to the applicant's property? Is the tree now causing damage to the applicant's property? Is the tree likely in the near future to cause damage to the applicant's property? Is the tree likely to cause injury to a person? Only if one or more of the tests is satisfied can I move on to consider what orders, if any, I should make in respect to each of the trees. The Palm 1. The palm is identified as an Archontophoenix alexandrae (Alexander Palm) and is located close to the timber boundary fence. The respondent planted the palm many years ago. 2. The palm has grown to a height of approximately 8 metres and some of the canopy of fronds overhangs the applicant's property. The palm is healthy and appears structurally sound. At the time of the hearing there was one dead frond attached in the canopy and some seed heads. 3. Both parties agree that the palm sheds approximately 6 – 10 dead fronds each year and that the fronds are in excess of 3.5 metres in length. It was also agreed that the palm sheds several large seed heads each year and that the fallen material lands on both sides of the dividing fence. 4. The applicant stores his aluminium boat in the rear yard behind the drive through garage at the side of the house. The boat has been stored in this location for several years. The boat is located in the open under the canopy of the Alexander Palm. 5. The applicant contends that on several occasions since 2009 the falling fronds from the palm have damaged his boat, the canvas boat cover, a bicycle seat and in addition that on one occasion a frond hit the bike and caused it to fall on his mower causing damage to the plastic petrol tank cover. The applicant has also stated that he has written to the respondent on several occasions advising of the risk of damage to his property. Copies of some letters were included in the application. 6. In relation to the boat cover the applicant claims that on several occasions the falling fronds have hit the aluminium supports that hold the cover taught and that the pressure on the canvas has caused the fabric to tear at the points where the supports are inserted. Several bent aluminium cover supports were shown to the Court at the hearing. 7. At the hearing the applicant pointed out where the canvas cover had been stitched to repair worn or torn areas and also showed the Court a small tear in a bike seat and some scratches on the mower petrol tank. Some scratches were also pointed out on the rear section of the boat near where the motor is attached. 8. Many images of the contended damage were included in the application and these were reviewed by all parties at the hearing. Some of the images show dead fronds on the top of the covered boat or on the ground at an unidentified location. There are several images of the canvas boat cover showing small areas of frayed fabric, holes in the fabric and images of seams that have come apart. In addition there are images of dead fronds partially detached from the top of the palm. 9. The respondent stated that many of the fallen fronds have landed on his property and that they have never caused any damage despite there being a fabric covered gazebo located directly under the canopy. The respondent did acknowledge that the foliage from adjacent tall shrubs on his property may have protected the gazebo to some degree. The respondent stated that he had never sighted an incident where the fronds had damaged the applicant's property. 10. It is apparent from the material submitted to the court from both parties that there is a long history of disputes relating to vegetation and many other issues. Any submitted material that is not relevant to the application has not been a consideration in this judgement. 11. Invoices for repairs to the boat cover and quotations for the replacement of the bike seat and mower tank cover have been in included in the application. The applicant claims that the presented invoices are paid however as no receipts are attached it is not clear to the Court if this is the case. 12. Although it is clear that the palm does shed fronds that land in the applicant's property there is no evidence that definitively links the fallen fronds to the contended damage. It is not clear to what extent, if any, falling fronds have contributed to the damage and to what extent general wear and tear or other events have been the cause. 13. There was nothing evidenced or sighted that would convince the Court that the Alexander Palm is currently causing damage to the boundary fence or any other property. 14. As there was nothing evidenced or sighted that would convince the court that the Alexander Palm has caused or is causing damage to the applicant's property in regard to past or present damage the provisions of section 10 (2) have not been met and therefore the jurisdiction has not been engaged. This element of the application is dismissed. 15. It has been determined that the evidence presented in regard to the contended past damages is not compelling enough to engage the jurisdiction to make orders and therefore it follows that there is also no jurisdiction to make orders for any compensation relating to the submitted invoices or quotations. The application in this regard is dismissed. 16. Commissioners do not have the power to order payments of legal costs, costs of reports or application fees to the Court. Claims for fees must be made by a Notice of Motion which is heard and determined by a Judge or Registrar should the applicant wish to pursue that component of the application. 17. The applicant is concerned that the falling palm fronds and seed heads are likely to cause injury to a person using the area under the canopy. 18. Given the use of the area below the palm for access to the boat and the proximity of the access stairs to the rear of the dwelling combined with the frequency at which the fronds and seed heads fall from an ever increasing height I am satisfied that injury is likely to occur. Therefore section 10 (2) of the Act has been met and pursuant to Section 9 orders can be made to prevent injury to a person. The Murraya 1. Tree 2 is a Murraya paniculata (Orange Jessamine) shrub located on the respondent's property adjacent to the palm near the rear side boundary fence. The Murraya is 3-4 metres in height and at the base the stems are approximately 300mm from the timber paling boundary fence. 2. None of the foliage of the Murraya is overhanging the fence as the applicant has pruned the shrub back to the boundary on a regular basis. 3. Both parties agreed that the Murraya has not caused damage nor is it currently causing damage to the fence or the applicant's property. 4. The applicant is concerned that the Murraya will cause damage to the fence in the near future. The applicant has made submissions relating to concerns about the constant maintenance to prune the shrub away from the fence and that future maintenance to the fence will be hampered by the proximity of the shrub. Despite the applicant's concerns he was not able to convince the Court that the Murraya was likely to cause damage to the fence in the near future. Additionally, nothing was sighted that would persuade the Court that the Murraya is likely to cause damage to the timber boundary fence in the near future. 5. I am not satisfied that that the requirements under section 10 (2) of the Act have been met in relation to the Murraya and therefore that part of the application is dismissed. Orders 1. As a result of the foregoing, the orders of the Court are as follows: 1. The application is upheld. 2. The application to remove Tree 1 and Tree 2 is dismissed. 3. Within 35 days of the date of this order, the respondent is to engage and pay for, an AQF Level 3 Arborist with appropriate insurances to prune Tree 1 (Alexander Palm). All dead and dying fronds and all seed heads are to be removed from the canopy. 4. All work shall be carried out in accordance with AS 4373 'Pruning of Amenity Trees' and the WorkCover NSW Code of Practice for the Amenity Tree Industry. 5. The contractor engaged by the respondent is to remove all debris and pruned material from the works as specified in (3) from applicant's property. 6. If required, the applicants are to provide reasonable access for the purpose of quoting and or for carrying out the works in order (3). Work is to be carried out during reasonable hours of the day. 7. The respondents are to give the applicants written notice of the works in order (3) a minimum of one week prior to the works being undertaken. 8. For the life of the palm, every six months, within two weeks either side of the anniversary of the date of these orders, the respondent is to engage an Arborist to undertake works as specified in (3). L Durland 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: 24 June 2015