Summerell v Proprietors Strata Scheme 4709 [2010] NSWLEC 1058

Land and Environment Court of New South Wales

CITATION : Summerell v Proprietors Strata Scheme 4709 [2010] NSWLEC 1058

APPLICANT William Summerell PARTIES : RESPONDENT Proprietors Strata Scheme 4709

FILE NUMBER(S) : 20002 of 2010

CORAM: Fakes C

TREES (NEIGHBOURS) :- Damage to property KEY ISSUES: Injury to Persons Compensation

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592 Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 18/03/10

DATE OF JUDGMENT: 18 March 2010

EX TEMPORE JUDGMENT DATE : 18 March 2010

APPLICANT William Summerell (litigant in person) LEGAL REPRESENTATIVES:

RESPONDENT Ms S Martin (agent)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

18 March 2010

20002 of 2010 Summerell v Proprietors Strata Scheme 4709

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Summerell of 35 Walmer Street, Sans Souci against the owners of a tree growing at 37 Walmer Street. The owners of that property are the proprietors of Strata Scheme 4709. The respondents were represented by Ms Martin from Dennis Hales Strata Management Pty Ltd. A number of residents attended the on-site hearing as did Mr Alland, Tree Management Officer for Rockdale City Council. 2 The applicant seeks the removal of a Castanospermum australe (Queensland Black Bean) as he contends that the tree could cause damage to his property and is a risk of injury to persons. 3 Specifically, he contends that leaves from the tree may block gutters thus causing possible rising damp, that overhanging branches may cause damage to the roof of his house, a skylight, and an air-conditioning unit, and that the expanding trunk and roots may cause damage to a low brick retaining wall that supports the dividing fence between the properties. 4 The risk of injury claim is due to what Mr Summerell says is the poisonous nature of the seeds of the tree if they were to be ingested. Mr Summerell's opinion is based on information sourced from a number of reliable Queensland government and university websites. One of Mr Summerell's pet dogs died after showing symptoms that he believes were consistent with those associated with the ingestion of Qld Black Bean seeds. However, there is no veterinary evidence to support this belief. The applicant voiced his concerns for children on the respondents' property and for people who may enter from the street. It is his strongly held opinion that the tree poses an unacceptable risk of injury to people. 5 The applicant is also claiming compensation of a sum of $3775.81. $2020 is for gutter guard he installed in order to keep leaves out of his gutter. He is also claiming the $197 filing fee for this application and a sum of $1558.81 for costs associated with the loss of his dog. 6 The tree was viewed from the respondents' property. The villas were constructed about 40 years ago and according to one of the residents who moved in at that time, a former tenant planted the tree in about 1975. This was disputed by Mr Summerell who stated that the tree was planted after his house was built in 1980. Therefore the tree is at least 30 years old and possibly older. 7 It is a healthy tree approximately 8-9m high growing about 500mm from the dividing fence in a garden bed between the fence and the respondent's driveway. The tree is within 2m of the applicant's house and at least 15m from the street. It has a bifurcated trunk with some included bark, however, its small stature, compact form and absence of reaction wood indicates that the risk of failure of this tree is very low and not a cause for concern. 8 A section of the canopy overhangs the applicant's roof and a portion is in contact with the roof. There was a brief view of the tree from the applicant's property but a further inspection of Mr Summerell's property was deemed, by him, to be unnecessary, as no damage has yet been caused by the tree. 9 Under s10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is a risk of injury to persons. In, Yang v Scerri [2007] NSWLEC 592 a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay.

10 The Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are: a) The tree is wholly located on the respondent's property. d) This species is known to contribute to biodiversity due to its flowering characteristics. e) The tree makes a contribution to the scenic value of the land on which it is growing. The tree is valued by the residents for the shade it provides and for its visual amenity. f) The tree has limited value to public amenity but it can be seen from the street. (h)&(i) Steps taken by either party. Mr Summerell contends that there would be damage to his property if he hadn't installed gutter guard. Mrs Stoupas, a resident, stated that as a result of a letter from Mr Summerell in 2007 regarding overhanging branches, the respondents offered to pay half the cost of removing the overhanging branches however, this offer was refused by Mr Summerell. The respondents, through Ms Martin, sought advice from Rockdale City Council about removing the tree. Following an inspection by Mr Alland, removal was refused but permission was given for pruning. (This correspondence was tendered in evidence.) 11 Returning to some of the issues raised by the applicant. With respect to the poisonous nature of the tree, the applicant has sourced material outlining the toxic nature of the seeds. This is not disputed however, no data was provided with respect to any examples of people being poisoned by this tree or the likelihood of this actually occurring. This is not an uncommon species in ornamental plantings throughout the Sydney area and beyond, and in my experience, there have been no reported incidences of people being poisoned by this tree. The seeds of this species are large, about 30mm in diameter, and enclosed in a woody pod some 150mm or more long.

12 With respect to the claim for gutter guard and the issue of debris falling from the tree, in Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, 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. This applies in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. The installation of gutter guard could be considered a normal part of property maintenance. It is noted that the claim for gutter guard is the cost of installing it around the entire house. Less than 15m of the gutter would be directly affected by the falling of leaves. 13 Commissioners do not have the jurisdiction to award costs associated with the making of an application. The costs associated with the dog cannot be awarded, as there is no proof of the connection between its death and the tree. It is noted that in his claim for compensation, Mr Summerell states that any compensation awarded would be forwarded to the Animal Welfare League of NSW. 14 Returning to s 10(2), this tree has not caused, is not causing, and is unlikely, in the near future, to cause damage to the applicant's property. Similarly the risk of injury is unlikely. 15 Therefore as none of the tests under s 10(2) are satisfied, the Court has no jurisdiction to make any orders for any interference with this tree. 16 The Orders of the Court are:

The application in its entirety is dismissed. _______________________ J Fakes Commissioner of the Court

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