Land and Environment Court New South Wales Medium Neutral Citation: Haddad v Fisher [2015] NSWLEC 1278 Hearing dates: 27 July 2015 Date of orders: 27 July 2015 Decision date: 27 July 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: [TREES] NEIGHBOURS: Damage to property; injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Mr G Haddad (Applicant) Ms E Fisher (Respondent) Representation: Applicant: Mr G Haddad (Litigant in person) Respondent: Mr A Fisher (Agent) File Number(s): 20274 of 2015 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The parties in this matter own adjoining properties in Castle Hill. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of a tree growing on the respondent's property. 2. The orders are sought of the basis of the potential damage the tree may do, as a consequence of stem and or branch failure, to the dividing fence and to property on the applicant's land. The applicant also contends that pollen falling from the tree has blocked his pool filter and that pollen settles on other parts of his property. In addition, the applicant claims that the pollen causes allergies and that any limbs or stems that may fall onto his land could injure anyone present at the time. 3. In applications made under Part 2 of the Act, the key jurisdictional test is found in section 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. 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…". 2. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. 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 history of previous failures and the circumstances of the site apparent at the time of the hearing. 3. The tree is question is a mature Lilly Pilly planted by the respondent's parents in the late 1950s. It is growing in the southern corner of the respondent's property close to the common boundary. The tree is a healthy specimen with two co-dominant leaders. 4. In June 2013 the applicant engaged Mr Peter Richards, a consulting arborist, to inspect the tree. Mr Richards was present at the hearing. He stated that in 2013 he was only able to view the tree from the applicant's property. The report he prepared in regards to that inspection recommended removal of the tree on the basis of the potential structural weakness of the dual included co-dominant leaders, one of which overhangs the applicant's pool. 5. Prior to the hearing, Mr Richards inspected the tree from the respondent's property (in accordance with standard Tree's Act direction #13). During this inspection he removed accumulated leaf litter from between the two stems in order to determine the structural integrity of the attachment. While he considers there is no connecting tissue between the two stems, he concluded that the stems appear sound and stable and are unlikely to fail in the near or foreseeable future. However, Mr Richards recommended regular monitoring. 6. Mr Richards could not identify any branches overhanging the applicant's property that in his opinion are likely to fail in the near or foreseeable future. 7. The applicant could not produce any evidence of any damage allegedly caused by the pollen. 8. In regards to the allergies the applicant contends are caused by the pollen, the Assistant Registrar issued the supplementary directions in Schedule B of the Court's standard 'tree' directions. These are directions specific to claims of "injury' where the injury is an illness, allergy or similar medical condition. The directions require expert and verifiable evidence to be provided proving the nexus between the allergy and the tree in question. In this matter, the applicant was directed to file any material upon which he intended to rely by 1 July 2015. No such material or evidence was filed. Findings 1. Given Mr Richards' opinion that stem or branch failure is unlikely in the near or foreseeable future, an opinion with which I concur (given the arboricultural expertise I bring to the Court), and the absence of any other supporting evidence, I am not satisfied that any of the tests in s 10(2) are met. 2. While I am not satisfied that any damage has occurred to the applicant's property as a consequence of the pollen, or is likely in the near future to occur, as a matter of discretion I would not make any order for any intervention with the tree on the basis of the fall out of pollen. 3. In Robson v Leischke [2008] NSWLEC 152 Preston CJ at paragraphs 168 to 173 discusses 'damage' in general. In this discussion, his Honour specifically noted at [117] that: 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. Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle 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. To date it has been adopted consistently and there have been no examples where 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. 2. I also note that the applicant built his pool about four years ago and elected to construct it beneath the respondent's tree rather than positioning it on the other side of the block in an area free of overhanging branches. 3. Therefore, as the Court's jurisdiction is not engaged, 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: 28 July 2015