Land and Environment Court New South Wales Medium Neutral Citation: Allen v Kalokotos [2019] NSWLEC 1538 Hearing dates: 19 December 2019 Date of orders: 19 December 2019 Decision date: 19 December 2019 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders: (1) The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – tree causing damage to shed and fence – apprehension of injury – expectation of maintenance Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Graeme Allen (First Applicant) Margaret Allen (Second Applicant) Nick Kalokotos (Respondent) Representation: G Allen (Litigant in person) (First Applicant) M Allen (Litigant in person) (Second Applicant) N Kalokotos (Litigant in person) (Respondent) File Number(s): 2019/299798 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication. 1. COMMISSIONER: The applicants, Mr and Mrs Allen, share a property boundary with Mr Kalokotos, the respondent, where the rear of the Allen's land meets the western side of Mr Kalokotos' rear yard in Erowal Bay. Mr Kalokotos' property has been owned by his family for many decades, and is currently occupied by his daughter. I understand that the Allen's have also owned their property for many years, and that the dispute over the trees has been protracted. 2. Mr and Mrs Allen lodged an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), in order to remedy damage that two trees have caused, are causing, and are likely to cause in the near future. They further claim that the trees represent a serious risk of injury to their family. 3. The main tree for consideration is a mature Cupressus macrocarpa 'Brunniana' (Monterey Cypress) (T1), about 14 metres in height with a canopy spread of approximately 12 metres. It is located off centre of Mr Kalokotos' back yard, about 5 metres from the common boundary. The second tree (T2), is a small Melaleuca bracteata, about 5 metres tall, growing close to the common boundary. The applicant's case 1. In their application, Mr and Mrs Allen propose the following orders: 1. "Court to order removal of tree 1 (T1) including the root system, by qualified arborist (AFQ30)(sic) within 3 months of hearing date at the respondent's cost's." 2. "Court to order removal of tree 2 (T2) including the root system, by qualified arborist (AFQ30)(sic) within 3 months of hearing date at the respondent's cost's." 3. "Court to order respondent be liable for any damages incurred to applicants' property (including boundary fences) caused by the removal of trees 1 and 2 and their root systems from the rear of the respondent's property." 1. The Allen's claim that (summarised) "T1 is a very large exotic pine tree which by nature has a very shallow but invasive large root system. These roots have penetrated the applicants' yard and are growing underneath the concrete slab for D1 (damage location 1) which is now showing signs of cracking underneath the garaport." 1. The applicants also claim that "the tree is already listing in excess of 15 degrees from the centre of the applicant's dwelling", that "the degree of listing increases after heavy rain and strong winds". Additionally, they "are very fearful that before too long T1 will lose its grip on the soft boggy ground and is blown over towards the applicants' residence and when this occurs there is a very strong likelihood that T1 will completely destroy the applicants' dwelling (D1) and cause harm, injury or death to any person within D1 at the time." The respondent's case 1. Mr Kalokotos resists the proposed order for removal of the trees, but supplied a copy of a quote for pruning of T1. The on-site hearing 1. The hearing commenced with both parties in the respondents' back yard for an inspection of the trees. 2. Based on the respondent's written submissions, I would estimate T1 is about 50 years old, in mid-maturity. A useful life expectancy of 80 years is a conservative guide. T1 appears to be healthy and vigorous, with a dense foliage cover. Its trunk and branches display no obvious faults, nor is there any reported history of branch failures. 3. The Court moved to the applicant's yard to assess the extent of damage, and risk of injury, attributable to the trees, and then under cover for submissions. T2 is growing closely adjacent to the shared timber paling fence. The tree has previously been removed to near ground level, where the cut trunk is about 225 mm in diameter. T2 now comprises a few small basal suckers, emanating from the sides of this stump. Jurisdictional requirements 1. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. 2. Mr and Mrs Allen have satisfied the requirement under s 8 of the Act: to serve notice to the respondent more than 21 days prior to the proceedings. 3. They have also satisfied s 10(1)(a) of the Act; to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, as displayed by transcripts of communication between the parties over many years. Mr Allen notes at Q32 of his 'Tree Dispute Claim Details' (Claim) that he has "been verbally communicating with the respondent for the past 15 years regarding both pruning and removal of T1 and T2 but without success." 4. Regrettably, Mr Allen seems to misunderstand his rights and responsibilities and appears to believe that he has a legal and or moral entitlement to have the trees pruned or removed. As such, his dealings with Mr Kalokotos display a tone of repeated demands, rather than negotiation in an attempt to reach agreement. 5. Notwithstanding this, while a concerted effort to negotiate an amicable and mutually acceptable outcome is desirable before an application under this Act is made to the Court, the Court accepts that opportunities exist until the end of the hearing for negotiations between the parties to occur, and thus s 10(1)(a) is deemed to be satisfied. 6. The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant's property or is likely to cause injury to any person. 7. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb in relation to damage, the 'near future' is deemed to be a period of 12 months from the date of the determination. Dropping debris 1. Mr Allen noted ongoing issues of scales (leaves) and other debris from T1 dropping onto the roof of B1, filling his gutters and clogging downpipes. At question 8 of his Claim, he notes the recent use of an extendable power pole pruner (5.5 metres) to prune "overhanging branches", "as a direct result of the respondents failure to address the pruning of overhanging branches of T1, although requested to do so many times…over a very long period of time." 2. Again regrettably, Mr Allen did not prune the branches of T1 at or near the boundary, but some metres within Mr Kalokotos' property. Unsurprisingly, this outraged the respondent, who reported this as trespass to Huskison Police, and this incident has clearly deepened the dispute. 3. Significantly, while Mr and Mrs Allen suffer an ongoing maintenance impost as a result of tree debris dropping and blowing onto their property, under the Act, this does not constitute damage. 4. In Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 (Robson) at [171], Preston CJ said that "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 Act. Hence, "leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours 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. The issue of maintenance is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at [20], establishes the tree dispute principle. "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 will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree." 1. Further, while branches encroaching above and across neighbouring properties may be unwelcome, in Robson at [56], in analysing nuisance, his Honour notes that 'mere encroachment into the neighbours land is insufficient to complete a cause of action for nuisance." Similarly, encroachment is not damage. Fence damage 1. Mr Allen contended that T2 is damaging the timber fence, and needs to be removed so the fence could be replaced. It was evident, however, that the fence was leaning towards Mr Kalokotos' property and resting against the tree's basal suckers. Looking along the boundary, the base of T2 is clearly within the respondent's property. 2. While fencing contractors may need this tree removed in order to replace the fence, as Mr Allen contended, there was no evidence of fence damage that has been caused by T2. Even if T2 was growing between the palings of the fence, as Mr Allen contends in Q17 of his Claim, such minor damage would be set aside under s 12(i) of the Act, which addresses the failure of an applicant to maintain their own property. 3. I am also not satisfied that T2 is likely to cause damage in the near future, and therefore the issue of the boundary fence is set aside and dismissed. Concrete cracking 1. Mr and Mrs Allen contend that roots from T1 "have penetrated the applicants' yard and are growing underneath the concrete slab for D1 (damage location 1) which is now showing signs of cracking underneath the garaport." 2. The Court was shown an area of minor cracking on the southern side edge of the concrete slab supporting the garaport, closer to the front (western end) than the back, and well clear of T1. 3. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage". 4. In Stevens v Russell [2016] NSWLEC 1233 at [40], Fakes C notes that: "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required." 1. No tree roots are evident near this cracking, and there are many other reasons why concrete may develop cracks. Therefore, there can be no finding that T1 is a cause of this damage, and thus this element is also dismissed. Risk of Injury 1. Using the guidance decision published in Yang v Scerri with respect to injury, the Court considers the risk posed by a tree (or trees) 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. 2. The applicants base their claim that T1 is likely to cause injury on the following factors: 1. The type of tree. 2. The size of the tree. 3. The angle or lean of (the) tree. 4. The type of soil that the tree is grown in. 5. The shallow root system allowing the tree to list and move severely in wet and windy conditions. 1. Monterey Cypress naturally occur near the sea (Monterey Bay, California) on the west coast of the USA. They are renowned for their salt and high wind tolerance, and hardiness. As such, one would expect this to be a very suitable species for this coastal environment. 2. T1 is a mid-sized tree suitable for an urban environment. It is not a large tree, nor does it have a tall large canopy, directly over the applicants' residence. Under the Act, consideration is also given to "the tree was there first." 3. Tree roots generally grow laterally away from the trunk base in a loosely radial pattern. They often spread well beyond the tree's canopy, and are usually found fairly close to the surface as they need to access oxygen for respiration. Stability in the soil is a product of the cumulative shear resistance of this broad spreading web of roots. 4. When a tree becomes unstable in the soil, and thus increasingly prone to windthrow, there are normally signs such as soil heaving and lifting, or cracking, which an arborist may interpret. In this situation, there are no such indications that the structural integrity of T1's root system or root/trunk junction is compromised, nor that the tree is unstable in the ground. 5. Mr and Mrs Allen's contention that the tree is already listing in excess of 15 degrees from the centre of D1 is not supported by the evidence on site, nor in photographs supplied. The tree has a slight lean, perhaps five degrees, towards the back of the respondent's yard, rather than towards the garaport. 6. In any case, a leaning trunk does not normally reflect a structural problem. When healthy trees grow on a lean, perhaps to gain more sunlight or in response to prevailing winds, they produce extra growth, as and where needed, in both roots and branches, to optimise strength. 7. Therefore, it is only when a tree with a vertical trunk starts to lean, or a leaning tree increasingly leans (i.e. partial windthrow), that the tree may be a hazard. The Allen's contend that "the degree of listing increases after heavy rain and strong winds", but if this were so, once again, there would be indications of soil heaving and cracking around the tree base, and there is no such evidence. 8. There is nothing about the type or texture of the soil that raises concern, particularly considering the species tolerance to heavy winds. In San Francisco, these trees have been successfully used over the long term to stabilise areas with sandy soil. 9. There are no obvious characteristics of T1 that cause concern with respect to risk of injury. There is no apparent sign of structural weakness in the trunk, nor issues with structural stability. There are no obvious faults at branch junctions, nor history of failures of overhanging branches, nor near misses. No formal risk assessment has been provided to support the Allen's claim. 10. Overall, there is a complete absence of evidence to support probable likelihood of injury. I am not satisfied that the trees represent a risk of injury that would be considered anything greater than low, and this is considered an acceptable risk. The claim with respect to likelihood of injury is thus also dismissed. 11. Therefore, with s 10 not satisfied, I have no jurisdiction under the Act to make any orders with respect to these trees under s 7 of Part 2. As this application is set aside, there is also no requirement to consider the discretionary matters in s 12. Orders 1. As a consequence of the foregoing, the Court orders that: 1. The application is dismissed. ……………………….. J Douglas Acting Commissioner of the Court ********** Amendments 13 March 2020 - Correction to typographical error in Respondent's name 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: 13 March 2020