Land and Environment Court New South Wales Medium Neutral Citation: Carter v Fraser [2022] NSWLEC 1149 Hearing dates: 15 December 2021 Date of orders: 29 March 2022 Decision date: 29 March 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders that the application is dismissed Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) –tree growing near boundary and fence; refuse from trees blowing into applicant's land; damage claimed; apprehension of further damage Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, ss 7,8,9,10,12 of Pt 2 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 72 NSWLR 98; [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: Teresa Carter (Applicant) Beverly Fraser (Respondent) Representation: T Carter (Self-represented) (Applicant) B Fraser (Self-represented) (Respondent) File Number(s): 2021/285068 Publication restriction: No Judgment 1. COMMISSIONER: The Applicant, Teresa Carter, and the Respondent, Beverly Fraser, share two perpendicular boundaries between their properties in Rutherford, in the Hunter Valley. Beyond the Applicant's rear boundary, which runs from north-west to south-east, the Respondent planted four Casuarina cunninghamiana (River She-Oaks) (the trees), three of which are located about two metres from the common boundary, and one about five metres. The trees average about 10 metres in height with a relatively narrow canopy spread, typical of the species at this age. 2. Having constructed their dwelling in 2007, in 2010 Ms Carter and her husband commenced construction of an inground pool and a shed a few metres inside their rear boundary. The parties dispute whether the trees were planted prior to the pool's construction; the Applicant says they weren't while the Respondent says they were, but this is immaterial to the outcome of this case. 3. In February 2019, Ms Carter wrote to the Respondent, initially informing Ms Fraser that she had "an issue with the huge mess" that the trees were causing and that "the pine needles keep blocking our pool cleaner and stopping the pool pump". Ms Carter requested that the trees be significantly pruned back to mitigate this impact, and also noted concern about future damage that may result from a root of one of the trees growing under the common boundary fence. 4. Ms Carter sent additional letters to Ms Fraser in November 2019 and November 2020, outlining "the ongoing damage caused by" the Respondent's trees, specifically to the pool filter and pump. In March 2021, the Applicant was unsuccessful in organising mediation through a Community Justice Centre (CJC) as the Respondent was unwilling to participate. Ms Carter next sought legal advice, and a letter from Tranter Lawyers to Ms Fraser dated 17 May 2021 notes at 2.1 that "The trees have persistently caused, and continue to cause, nuisance and damage to our client's property." 5. This letter included an ultimatum that the Respondent remove the trees within 45 days. In June 2021, the Respondent had the tree pruned, but Ms Carter noted in a final letter to Ms Fraser soon after that she was dissatisfied with the "minimal pruning of the trees", and that tree removal was the only satisfactory solution to the problem. 6. As a result, Ms Carter lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act), in order to remedy damage from the trees, and prevent damage that she believes is likely in the near future. The Applicant's proposed orders 1. In her application, Ms Carter proposes the following orders: 1. Removal of the four trees at the Respondent's expense. 2. Compensation for $445 for a new pool cleaner, $440 for legal fees and $259 for application fees to the Land and Environment Court (Court). The Respondent's case 1. Ms Fraser resists the proposed order for removal of the trees, on the basis that they attract birds and other fauna and contribute to biodiversity, provide shade and amenity, and privacy for her when using her land beyond the trees. She says they also provide shelter for her livestock, fix nitrogen and provide soil stability, and store carbon. The on-site hearing 1. The hearing was conducted on site, where both parties were self-represented. 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 the Trees Act applies that is situated on adjoining land. 2. Ms Carter has satisfied the requirement under s 8 of the Trees Act: to serve notice to the Respondent more than 21 days prior to the proceedings, and has also satisfied s 10(1)(a) of the Trees Act; to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, as displayed by letters to the Respondent since 2019, and evidence of a fruitless attempt to conduct mediation with Ms Fraser under the guidance of a Community Justice Centre representative. 3. The next major test that is posed, by s 10(2) of the Trees 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. 4. The trees are growing at least two metres clear of the Applicant's property, with little or no encroachment, but Ms Carter contended that needles (scale leaves), pollen and seed capsules from the tree, blow and fall into her pool and have damaged her pool equipment, leading to maintenance costs and premature replacement of pool cleaners. She also notes the excessive maintenance impost to clear the tree's refuse from the pool, the shed and surrounding surfaces, and frustration because "we are the ones that have to continually clean up our property because of your trees". Dropping debris 1. Though Ms Carter may suffer an ongoing maintenance impost as a result of tree debris dropping and blowing onto her property, under the Trees Act, this does not constitute damage. 2. In Robson v Leischke (2008) 72 NSWLR 98; [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 Trees 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." 3. The issue of maintenance is addressed in Barker v Kyriakides [2007] NSWLEC 292 (Barker), which, at par 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". 2. Though there is no doubt that Casuarina stems and leaves, like Pine needles, are light and regularly shed, and, occasionally along with pollen and seed pods, are likely to blow onto the Applicant's land, the tree dispute principle in Barker applies in this situation, consistent with its application since 2007. As the tree dispute principle in Barker entails an expectation of maintenance, there is no remedy available under the Trees Act for expenses for pool equipment damage that likely stems from insufficient property maintenance. This element of the claim is thus dismissed. Prevention of near future damage 1. Ms Carter noted possible damage to pool pipes and other property as a result of a root from one of the trees "pushing under the fence". 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". 1. In Stevens v Russell [2016] NSWLEC 1233 at [41], 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. The Applicant undertook no such excavation that may have shown damage associated with this root. No plumbers' receipts or other evidence has been submitted to substantiate damage as a consequence of roots. As a result, the Applicant's case regarding root damage has not progressed beyond "a theoretical possibility", so this element of Ms Carter's claim is also dismissed. 2. Pointing on site to root suckers emanating from near the base of the trees, the Applicant queried, "what happens in 5-10 years' time?" and added that "the situation would continue to deteriorate". Under the Trees Act, claims may be made for damage in the near future but based on the decision in Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. I am not satisfied from the evidence brought before the Court, that roots of the trees are likely to cause damage to the Applicant's property in the near future. Should the situation and evidence change in the more distant future, a new application may be made to the Court. 3. The Applicant's claim for compensation for $445 for a pool cleaner has been dismissed, but she also claimed $440 for legal fees and $259 for her Court filing fees. Commissioners do not have powers to order such costs. Claims for items such as these require lodgement of a Notice of Motion to the Court, which are heard before the Registrar, or a Judge. Conclusion 1. The Applicant's claim regarding damage to her pool, pool surrounds, pool equipment, and shed as a result of leaves, twigs, bark, flowers or fruit falling or blowing from the trees is dismissed through the application of the Tree Dispute Principle in Barker. No evidence has been provided to substantiate a claim of damage caused by a root or roots from the trees, nor damage in the near future. Therefore, s 10(2) of the Trees Act has not been satisfied, and I therefore have no jurisdiction under s 7 of Pt 2 of the Trees Act to make any orders with respect to the trees. As a consequence, 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 the application is dismissed. ………………………… J Douglas 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: 29 March 2022