Small v Minard & anor [2016] NSWLEC 1048

Land and Environment Court New South Wales

Medium Neutral Citation: Small v Minard & anor [2016] NSWLEC 1048 Hearing dates: 15 February 2016 Date of orders: 15 February 2016 Decision date: 15 February 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Potential damage; debris Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Eva Small (Applicant) Matthew and Catherine Minard (Respondents) Representation: Applicant: Mrs E Small (Litigant in person) Respondents: Mr Minard (Agent) File Number(s): 20936 of 2015

Judgment 1. COMMISSIONER: The applicant owns a property in Long Jetty. Growing on the adjoining property to the northeast is a Casuarina glauca. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the lopping or removal of the tree. 2. The orders are sought on the basis that leaves/ needles from the tree are blown or fall into her guttering. The applicant contends that this poses a danger of flooding. She maintains that she has to have the guttering cleared twice a year. 3. The on-site hearing commenced with an inspection of the tree. It is a mature specimen that, according to the respondents, was reduced to about a third of its size by a storm in April 2015. With the arboricultural expertise I bring to the Court, the form of the tree is entirely consistent with storm damage. Photographs included in the application claim form illustrate the former size of the tree. 4. The tree is at least 4m from the dividing fence and no part of it now overhangs the applicant's property. The guttering is approximately 700mm from the fence. 5. 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. Injury is not pressed. 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…". 3. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is generally a period of 12 months from the date of the hearing. 4. During the hearing the applicant stated that as yet, no damage has been caused by the tree. She stated that mould has been found in a wardrobe located on the side closest to the tree and blocked guttering and that items of clothing had to be disposed of. The inference, it seems, is that the leaves have caused or contributed to this problem. 5. The application claim form includes a photograph of needles in the guttering; the photograph may have been taken before the storm or before a scheduled clearing. However, when asked, the applicant was not able to adduce any evidence capable of satisfying any element of s 10(2)(a). Therefore, as a consequence, the Court has no jurisdiction to order any intervention with the tree. 6. While I am not satisfied that any damage has occurred to the guttering as a consequence of the leaves, 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 leaf litter. 7. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at [168] to [173] discusses 'damage' in general. In this discussion, his Honour specifically noted (at [171]) 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. I note that the guttering is only about 2.8m above ground and easily accessible from a step ladder. 2. Therefore, the Orders of the Court are: 1. The application is dismissed. ____________________________ Judy Fakes Commissioner of the Court