Land and Environment Court New South Wales Medium Neutral Citation: Ladlow v Taylor [2023] NSWLEC 1159 Hearing dates: 17 January 2023 Date of orders: 17 January 2023 Decision date: 17 January 2023 Jurisdiction: Class 1 Before: Douglas AC Decision: The orders of the Court are: (1) Within 45 days of the date of these orders, the Respondents, at their expense, shall prune 2 dead branches which are protruding towards the Applicant's land. One branch is approximately 3 metres long x 60mm at its branch collar, and the other is approximately 2.5 metres long x 30mm at its branch collar. (2) The pruning shall be completed by an AQF level 3 qualified arborist with all appropriate insurances, and in compliance with AS4373:2007, Pruning of amenity trees. (3) The pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. (4) Should access to the Applicant's property be required to undertake the pruning works, the Applicant shall grant all reasonable access upon receipt of at least 72 hours written notice by email from the Respondents, advising the date and approximate start time of the works. (5) The pruning works shall be completed during reasonable daytime working hours. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury – leaves, fruit and small sticks falling onto paved surfaces Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 McPherson v Lake [2017] NSWLEC 1081 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Texts Cited: Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016 Standards Australia, AS4373-2007: Pruning of amenity trees Category: Principal judgment Parties: Jeffrey Walter Ladlow (Applicant) Christopher Taylor (First Respondent) Janelle Taylor (Second Respondent) Representation: J Ladlow (Self-represented) (First Applicant) C Taylor (Self-represented) (First Respondent) J Taylor (Self-represented) (Second Respondent) File Number(s): 2022/306831 Publication restriction: Nil Judgment 1. COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), by Jeffrey Walter Ladlow, the Applicant, relating to a Gum tree located in the adjacent neighbouring property. Background 1. Mr Ladlow and the Respondents, Christopher and Janelle Taylor, share a side boundary between their properties in Annangrove, in north-western Sydney. Both properties are on large blocks which the Respondents described as "acreage rural land". 2. While the Applicant's property contains many tall Gum trees, Mr Ladlow was aggrieved about one medium sized Eucalyptus haemastoma (Scribbly Gum) (the tree) growing on the Respondents' land, close to the common boundary and overhanging his property. The Applicant has occupied his property for 32 years, while the Respondents' occupation of their land was more recent. 3. Mr Ladlow proposed that orders be made for removal of the tree, or alternatively, a significant reduction of its size, based on claims that the tree presents a risk of damage to his house and to motor vehicles, and a risk of injury to residents. 4. In his Tree Dispute Claim Details (Exhibit B), filed with the Court on 14 October 2022, at question 9, Mr Ladlow submitted that: 1. "When there is a strong southerly storm or strong winds there are pieces of tree branches smashing into our upstairs bedroom window immediately facing the tree approximately 2 to 3 metres (m) from the tree canopy". 2. "Tree debris falls to the driveway below where vehicles can be parked. Damage to the persons and vehicles can be sustained". 3. The roof gutters collect lots of leaf and branch debris from the tree and hence get blocked and cause potential fire risk". 1. At question 32 of Exhibit B, Mr Ladlow claimed that he had discussed the "tree issue" with Mr Taylor in June 2022, and Mr Taylor was "happy to have the tree removed but it be at my cost". 2. Mr Ladlow also noted that he had emailed and spoken with Mr Angelo Berios, Manager – Environment and Health at Hills Shire Council (Council), on 8 and 10 August 2022, respectively, to query whether the tree can "be removed or reduced in size as to eliminate" the risks of damage and injury. 3. Mr Berios advised Mr Ladlow by email on 30 September 2022, that the Taylor's could remove the tree without Council approval as the property "is located in a designated 10/50 vegetation clearing area" and was "within 10 metres (m) of your dwelling". Mr Berios also advised Mr Ladlow that the dispute was a civil matter, to discuss it with the Taylor's initially, and that recourse was available under the Trees Act, should he be unable to resolve the dispute. 4. In an affidavit filed on 12 December 2022 (Exhibit 1), the Taylor's submitted that they do not want the tree removed for reasons including the tree's good health and sound structural stability, its contributions to privacy, shading and cooling, and to their landscape, and because it was "a daily habitat for our birds and other wildlife". 5. In Exhibit 1, the Respondents noted having granted permission for the Applicant or the Applicant's gardeners to "trim back" any branches overhanging the boundary and causing a nuisance. The Taylor's also noted that while Mr Ladlow's application under the Trees Act was based on risk of damage and injury as a result of the tree, his initial concern was risk of fire. The onsite hearing 1. The hearing was conducted onsite on 17 January 2023, and both parties were self – represented. An initial inspection confirmed that the tree was located on the Respondents' land about 700mm from the common boundary. The tree was about 12 m tall and had a structurally sound trunk and branch attachments, with a fairly dense live foliage cover consistent with its relatively advanced age. The growth rate of this species is normally relatively slow, though Mr Ladlow claimed it had grown substantially since he occupied his land. 2. Subsequently viewed from the Applicant's land, while the tree overhung the boundary, the highest branches were about 1.5 m clear of the roof and about 3 m clear of the dwelling's gutters. Mr Ladlow alleged that branches or foliage from the tree were "beating up against (his bedroom) window" in a recent southerly storm. The tree contained a low to moderate level of deadwood. Jurisdictional requirements 1. With respect to s 7 of the Trees Act, 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. The tree is situated on adjoining land. 2. The Court is obliged to consider matters pursuant to s 10 of the Trees Act. Did the applicant make a reasonable effort to reach agreement? 1. As required by s 10(1)(a) of the Trees Act, I am satisfied that there has been an attempt by the Applicant to reach agreement with the owners of the land on which the trees are situated. Mr Ladlow provided evidence of verbal and written requests for intervention with the tree. I am also satisfied that the Applicant has given notice of the application in accordance with s 8, such that s 10(1)(b) of the Trees Act has been engaged. 2. 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: (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. Is the tree likely to cause damage? 1. The Applicant made no claim that damage had occurred in the past, or was currently occurring but he anticipated future damage, and injury. Under the Trees Act, future damage is restricted to "damage in the near future". In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. 2. The tree is stout, and its bifurcated trunks appear to be strong and rigid. I am not satisfied that the tree is likely, even in the face of strong winds, to have sufficient flexibility to have swayed across the broad gap between it and the applicant's dwelling so as to make contact with the Applicant's bedroom window. In such circumstances, it is much more likely that branches would shed from the tree, and there was no evidence of wounds on the tree indicative of live branches shedding in previous storms. Having said this, it is not unlikely that small stems and foliage may have broken from the tree and impacted the Applicant's dwelling, but there was no evidence of consequent damage. 3. There are dead branches on the tree that I am satisfied are likely to break, most likely onto the paved area below. Most of these dead branches are small twigs that are likely to fall without any genuine consequences, but there are 2 overhanging larger dead branches that are unpredictable, and that may cause damage should they fall. The Applicant claimed that cars park in this area because it is shady, though the Respondents dispute this. 4. Though consequent damage is likely to be minor, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 (Granger), indicates that even relatively minor damage engages the Court's jurisdiction. 5. Therefore, s 10(2)(a) of the Trees Act is satisfied. 6. Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2)(a) of the Trees Act but it can be relevant in determining what orders, if any, should be made. Risk of Injury 1. Mr Ladlow claims that the tree presents a genuine risk of injury from overhanging branches breaking, falling and striking people. 2. Regarding injury, the Court must consider the risk posed by a tree in the foreseeable future based on the characteristics of the tree, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing (McPherson v Lake [2017] NSWLEC 1081(McPherson) [10]). 3. While Mr Ladlow acknowledged that he would not walk near or under the tree "if a major storm was brewing" the two larger dead branches are sufficiently dry that they may be cracked and thus unpredictable, even under non-windy conditions. 4. Though one may wonder "why", considering the Applicant's apprehension about the tree, the applicant stores his garbage and recycling bins in this area, and the Respondents claimed that the Applicant frequents this area on multiple occasions each day to access his bins. 5. Returning to the guidance provided in McPherson with respect to injury, considering the unpredictability of the dead branches, because Mr Ladlow may frequent this area multiple times each day to access his bins, and because his advanced age may result in slower than average reactions and more serious consequences than for someone younger, I am satisfied, albeit barely, that there is a risk of injury such that s 10(2)(b) of the Trees Act is satisfied. Mr Ladlow noted in his application that he was 77 years old, and this prevented him from undertaking maintenance which required use of ladders. 6. If at least one jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. Discretionary matters – s 12 1. If orders are to be made, the Court must consider relevant discretionary matters in s 12 of the Trees Act, as follows: * The tree is located in the Respondents' property about 700mm from the common side boundary (ss 12(a)). * With respect to removal or pruning, the tree is not protected by Council's Tree Management Policy (ss 12(b)). * The tree displays minimal past pruning and this is appropriate in terms of optimum tree health. Any removal of live foliage cover by pruning, or any other means, reduces a tree's capacity to optimise photosynthesis. This reduces the tree's potential carbohydrate supply which is necessary for a range of essential functions. Pruning should therefore not occur as part of 'normal' maintenance but should be undertaken only when necessary to achieve a required purpose (ss 12(b2)). * Only minor pruning of two dead branches is required in this case, back to branch collars, in compliance with AS4373-2007: Pruning of amenity trees (ss 12(b2)). * There were other smaller dead branches that may fall from the tree onto the area near the boundary. However, when orders are made by the Court for the pruning of dead branches, the specification is normally for branches with a diameter at the branch collar in excess of 20mm. Therefore, no orders shall be made for dead branches with a diameter less than 20mm. Rather, these relatively small dead branches are considered under the Tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292 (Barker) (see ss 12(j)) below). * Notwithstanding that in Exhibit B, Mr Ladlow failed to acknowledge any contributions that the tree may provide for the Respondents or for the local environment, the tree contributes to privacy, protection from the sun, and to the amenity and scenic value of the Respondents' land (subss 12(b3) and (e)). * Consequent of its flowering and fruiting characteristics, and particularly because the Scribbly Gum is indigenous to the area, it could be expected to provide food and shelter for local fauna, and thus would contribute to local biodiversity. Mr Taylor noted that a "hawk' frequented the tree (ss 12(d)). * The tree is likely to be providing benefit to soil stability (ss 12(g)). * Section 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. * Though the parties dispute whether cars are parked in the exposed paved area beside the garage, Mr Ladlow noted at question 12 of Exhibit B, that he restrained from parking vehicles under or near the tree if storms are predicted. Had he not, it would constitute "failure of an applicant to maintain their own property" (ss 12(i)). * Section 12(j) considers such other matters as the Court considers relevant in the circumstances of the case. In this regard, Mr Ladlow claimed (above at [5]) that "The roof gutters collect lots of leaf and branch debris from the tree and hence get blocked and cause potential fire risk". * This issue is addressed at [171] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, where Preston CJ says: "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." * Further, the Court has published a Tree Dispute Principle in Barker which, at [20], 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, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree." 1. As a result, the dropping of such small natural refuse associated with the tree is given little determinative consideration. It is not deemed to be damage under the Trees Act, and the required maintenance to clear leaves, seeds, flowers and small sticks from the garage roof, its gutters, and the surrounding area is considered to be reasonable. This element of the Applicant's claim is thus set aside. Given this maintenance expectation, I am not satisfied that the tree requires intervention based on risk of fire. Conclusion 1. I have examined the tree and the site and have reached the following conclusions: 1. The onus is on the Applicant to prove his case by submitting evidence which satisfies the Trees Act. Based on the Court's decision in Granger, where even relatively minor damage was found to engage the Court's jurisdiction, I am satisfied that 2 dead branches overhanging the applicant's property are likely to cause damage in the near future or minor injury, sufficient that s 10(2) of the Trees Act is engaged. 2. Beyond these 2 dead branches, I am not satisfied that other elements of the tree engage s 10(2) of the Trees Act. The Applicant's claim regarding damage to his dwelling's roof, gutters, or bedroom window as a result of twigs, leaves, bark, flowers or fruit falling or blowing from the tree is set aside through the application of the Tree Dispute Principle in Barker. 3. Similarly, I am not satisfied that the Applicant's fears about risk of injury in his bedroom is justified when considering the tree and site reality. The Court finds that peoples' fears about trees, reasonable or otherwise, often increase as people get older. 4. Though disputed by the Applicant, the tree provides a range of valuable environmental services. These tree benefits will not be compromised by the removal of the 2 dead branches. Orders 1. The Court orders that: 1. Within 45 days of the date of these orders, the Respondents, at their expense, shall prune 2 dead branches which are protruding towards the Applicant's land. One branch is approximately 3 metres long x 60mm at its branch collar, and the other is approximately 2.5 metres long x 30mm at its branch collar. 2. The pruning shall be completed by an AQF level 3 qualified arborist with all appropriate insurances, and in compliance with AS4373:2007, Pruning of amenity trees. 3. The pruning shall be completed in accordance with the Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 4. Should access to the Applicant's property be required to undertake the pruning works, the Applicant shall grant all reasonable access upon receipt of at least 72 hours written notice by email from the Respondents, advising the date and approximate start time of the works. 5. The pruning works shall be completed during reasonable daytime working hours. 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: 04 April 2023