Land and Environment Court New South Wales Medium Neutral Citation: Tho v New Horizon Health Care [2021] NSWLEC 1499 Hearing dates: 19 August 2021 Date of orders: 19 August 2021 Decision date: 19 August 2021 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring tree – damage to property – whether the tree caused damage – risk of damage and injury – lack of evidence – compensation – application refused Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Richard Tho (First Applicant) Lisa Brown (Second Applicant) New Horizon Health Care (Respondent) Representation: C Lim (Agent) (Applicants) D Loether (Solicitor) (Respondent) Solicitors: Bartier Perry (Respondent) File Number(s): 2021/130102 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background to the application 1. Richard Tho and Lisa Brown ('the applicants') have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the removal of a neighbouring tree and for compensation for damage to their property. The tree is on land owned by New Horizon Health Care ('the respondent'). The hearing 1. The hearing took place online via audio-visual means. Ms Lim represented the applicants as agent, while Mr Loether, solicitor, represented the respondent. I informed the parties that I would arrange a later onsite inspection if, at the end of today's hearing, I determined that would be required for this decision. However, at the end of the hearing, with the evidence and submissions before me, I informed the parties that such an inspection would not be required. 2. The applicants filed no expert evidence. Ms Lim asked the Court to accept two documents at the hearing. The first was a document, author unidentified, responding to parts of a without-prejudice offer from the respondent. It was filed outside the Court's directed timeframe for filing evidence. It would not be appropriate for the Court to accept that document. The second document was a report by an engineer. It had not been filed with the Court and was not sent to the respondent. The applicants have controlled the scheduling of their application, allowing time as needed to collect evidence prior to the hearing. COVID-19 restrictions have not prevented them gathering evidence within the directed timeframes. There was no justifiable reason to allow late filing of an expert report. 3. The respondent filed a report by consulting arborist Melanie Howden, who gave oral evidence at the hearing. Ms Howden's report provided useful information given the Court's lack of an onsite view. Framework for this decision 1. Under Pt 2 of the Trees Act, the Court can only make orders if satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicants' property, or is likely to cause injury to any person (s 10(2) of the Trees Act). For the purposes of the Trees Act, and since the Court's principle established in Yang v Scerri [2007] NSWLEC 592, I consider the near future to be a period of approximately 12 months. The Court must also consider a range of matters at s 12 of the Trees Act before making orders. 2. Before making orders, the Court must also be satisfied that the applicants have made reasonable effort to reach agreement with the tree owner (s 10(1)(a) of the Trees Act). The applicants made reasonable effort to reach agreement 1. The applicants contacted the respondent requesting something be done about the tree. The applicants also tried unsuccessfully to arrange mediation with the respondent through the Community Justice Centre. I am satisfied their efforts were reasonable. The tree 1. The subject tree is a Sydney Blue Gum (Eucalyptus saligna), native to the area. Ms Howden described the tree as healthy and without structural defects, approximately 18 metres tall with a stem diameter of 79 cm. She estimated its age to be 60–75 years. Ms Lim disputed Ms Howden's findings regarding stem diameter and tree age, but provided no evidence to the contrary and the matter is of no consequence to this decision. Ms Howden said the tree appears to have been pruned regularly. Has the tree caused damage? 1. The applicants allege the tree has caused damage to their property: a fallen branch damaged their fence, its roots have damaged their dwelling and other parts of their property. 2. In 2016, a branch fell and damaged the timber fence on the common boundary. Photos accompanying the application show the fallen branch. There were no photos showing damage, although Ms Lim insisted the applicants had numerous photos showing such damage. She insisted that the Court should arrange a site view as some of that damage is still visible. If she is referring to damaged lattice panelling atop the fence (lattice can be seen in the photograph), the damage must be minor, as it has not warranted repair since 2016. Thus, even if the tree did damage the fence, I would not be minded to make orders on that basis. 3. Ms Lim says tree roots have grown into the applicants' property. She suggested they grow under the applicants' dwelling and are extending to the other side of the property. There is no adduced evidence to support this. Inside the dwelling, almost 4 metres from the dwelling wall and more than 9 metres from the tree, are some cracked floor tiles, clearly shown in photographs. Within the dwelling, there is no alleged damage closer to the tree. There is a distinct lack of any evidence demonstrating that tree roots are associated in any way with the cracked tiles. A site inspection would not assist the Court in this regard, as no roots have been exposed under the dwelling. Had I visited the site, I would be observing the same view shown in the photographs, and nothing more: some cracked floor tiles well away from the wall nearest the tree and far from any visible roots. Ms Lim insisted the Court would gain an understanding of the tree's proximity from a site view, but photographs and diagrams clearly show the tree's location relative to the applicants' property. 4. Ms Lim said roots have lifted the grate on a drain in the courtyard between the applicants' dwelling and the tree. Photographs show a raised grate, but no tree roots. Again, the applicants have controlled the timing of the application, and have filed photographs that show damage but do not show tree roots causing damage. If, perhaps through onsite observations, I found that roots of the tree have lifted the grate, I do not see that as a reason to order tree removal. Even if this element of the application met the jurisdictional test at s 10(2)(a) of the Trees Act, I would need to consider matters at s 12 before making any orders. Any roots found here could be cut by the applicants, as roots here would be far enough from the tree that they are not structural roots and pruning them would have no significant impact on the tree. Is the tree likely to cause damage or injury? 1. The other element of the application concerns risk of future damage and risk of injury. Just as the applicants have not shown that the tree has caused damage to their property, they have not provided evidence that damage or injury is likely. There is nothing to indicate tree roots are likely to cause damage to their property in the next 12 months. Ms Howden found no defects in the tree, so further branch failure seems unlikely, as does failure of the whole tree. The respondent submitted that the tree would continue to be regularly inspected and pruned by an arborist. Ms Lim referred to high winds and other trees falling, and the possible reach of tree roots, but such general evidence cannot satisfy the Court that damage or injury is likely to result from this particular tree. Orders 1. For the reasons set out above, the Court orders: 1. The application is refused. ………………………………. D Galwey 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: 30 August 2021