Land and Environment Court of New South Wales CITATION : Oakey v Owners Corporation Strata Plan 22678; Oakey v Owners Corporation Strata Plan 5723 [2009] NSWLEC 1108 APPLICANT Jane Oakey PARTIES : RESPONDENT (FIRST MATTER) Owners Corporation Strata Plan 22678 RESPONDENT (SECOND MATTER) Owners Corporation Strata Plan 5723 FILE NUMBER(S) : 20942 of 2008; 20071 of 2009 CORAM: Moore SC - Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- Likely risk of injury LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Tuft v Piddington [2008] NSWLEC 1249 Robson v Leischke [2008] NSWLEC 152; [2008] 159 LGERA 280 DATES OF HEARING: 19 March 2009 EX TEMPORE JUDGMENT DATE : 19 March 2009 APPLICANT In person RESPONDENT (FIRST MATTER) LEGAL REPRESENTATIVES: Mr A McLeod, solicitor Kilmurray Lawyers RESPONDENT (SECOND MATTER) In person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE SC THYER AC 19 March 2009 08/20942 Jane Oakey v Owners Corp Strata Plan 22678 09/20071 Jane Oakey v Owners Corp Strata Plan 5723 JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: Three blocks of residential units with northerly or north-easterly aspects have boundaries to Hillview Street at Newcastle (although two of these blocks have street addresses in Anzac Parade to the west). The applicant resides in the middle block of units and in the middle level of that block. In September 2008, she lodged an application concerning to Norfolk Island Hibiscus trees located on the property to the east. 2 The matter came before the Court for directions on 15 December 2008 and relevant directions from the Court's Standard Tree Directions, including the Standard Medical Directions (to which we will refer further), were made in those proceedings. At an on-site hearing in Matter No: 08/20942 that we conducted on 20 January 2009, it became obvious to us that the application concerning the two Norfolk Island Hibiscus trees in those proceedings would inevitably have (if a decision requiring removal of the trees were to be made) an immediate and precedential effect on two identical trees on the opposite side of the driveway some 6 m or so away (as it emerged during the course of discussions that issues of concern to the applicant related to all four trees rather than to the two subject of that first application). As a consequence, we adjourned those proceedings and directed the applicant to file a further application dealing with the other two trees so that the owners of those trees would have the opportunity to be heard. 3 The hearing of the original application was adjourned to today. Directions were subsequently made involving the parties to both applications that evidence in one (to the extent relevant) would be evidence in the other and that the respondents in each case would be given the opportunity (if they wish to avail themselves of it) to put on any expert medical or arboricultural evidence concerning the trees. 4 Each application is made on the basis of s 10(2)(b) of the Trees Act, in that it is contended that each of the trees is likely to cause injury to a person. S 3 of the Trees Act does not include any definition of the term "injury". In earlier, unrelated case, Tuft v Piddington [2008] NSWLEC 1249, the Court considered other statutory definitions of injury to provide assistance to the Court in considering whether "injury" included illnesses, allergic reactions and other matters of a similar type. The Court held in Tuft that the wider view was applicable. As a consequence, we accept that the Court does have jurisdiction to deal with these two applications on the basis of the applicant's claim that the fibres from the fruit of the trees (when the seed pods ripen and fall to the ground and open) are blown into her property and are sufficiently fine that they are a likely cause of injury (if inhaled by any of the occupants of the property or any person visiting them). 5 There is also concern raised by the applicant about the use of barbecues where that use might lead to the fibres being ingested as part of any food that might be cooked during this period of time. It is suggested that this is a particular risk in late summer and in early autumn when the fruit ripening and falling takes place. 6 Residents of each of the other properties (that is those that own the trees on the properties to the east and to the west of the applicant's block of units) have put on statements of evidence denying that there is any such transportation of fibrous material on to their properties and that there has been no illness or discomfort experienced by any of these residents as a consequence of the seed pods of the four trees. 7 We consider it appropriate to deal with the applicant's case at the highest – assuming that the blowing of the material occurs; that it is deposited in her premises as she has informed us; that it is as fine as she has informed us; and that it is as penetrating of gaps as she has informed us. 8 As a consequence, we have decided to test the question of whether there is a likely risk of injury against the evidence taken on that basis. There are a number of matters that we need to note in this regard. The supplementary Standard Medical Directions to which we have referred relating to risk of injury matters are in the following terms [with space for date for compliance to be inserted]: Further to Direction (5) of the principal directions in this matter, the applicant is to provide, by the close of business on ………….., any statement of medical or arboricultural evidence and any supporting medical or arboricultural peer reviewed literature relied upon in support of a claim that a tree which is the subject of the application is a likely cause of injury to any person 9 There is then a further direction relating to the expert witness provisions and the Uniform Civil Procedure Rules 2005 that needs not detain us in these proceedings. 10 Despite giving that direction, the applicant has provided no expert medical or arboricultural evidence and no authoritative medical or arboricultural literature concerning Norfolk Island Hibiscus trees and their fruits and/or fibres. 11 Although Ms Oakey and others supporting her case have given evidence that residents have had rashes occasioned by the fibres, it was also their evidence that no doctor has needed to be consulted about such rashes and, as a consequence, there is no actual medical evidence whatsoever of any injury produced to us. 12 Finally, such Internet derived literature concerning Norfolk Island Hibiscus as has been provided to us (again taking it at its most persuasive) is either silent about how impacts of the fibres might be occasioned or is specifically related to the handling of the seed pods. Despite the fact that there is a note from the Parramatta City Council web page that these trees are "undesirable", we do not find this material of any assistance to the applicant. Ms Oakey has asserted that that has been provided to us on the basis that it is all arising from irritation concerns. Mr McLeod, solicitor the neighbouring property to the east, made a submission to the contrary. We are not satisfied, after considering the competing submissions, that we have sufficient evidence on that point to permit us to draw the conclusion proposed by Ms Oakey. 13 It is important to note that fear of injury is not the same as a "likely risk of injury". Before a fear is to be transferred into a likely risk, there has to be some probability that that which is feared will come to pass. "Likely" is a term related to probability and evokes elements of the foreseeability. In this case, there is a statutory linking between the risk and its likelihood – both of them being necessary to be found in conjunction with the injury about which there is concern. 14 Thus the risk may be more than merely a fear there must be some reasonable probability that it will occur. In Robson v Leischke [2008] NSWLEC 152; [2008] 159 LGERA 280, Preston CJ considered the question of annoyance or discomfort to the occupiers of adjoining land in the context of damage to property. His Honour's comments at paragraph 171 are equally analogous to risk of injury in this regard. Paraphrasing what His Honour said, however mere annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not [interposing] a risk of injury [within the meaning of s 7 of the Act, rather than, as His Honour said] damage to property). Hence, His Honour continued, "leaves fruits, seeds, twigs, bark or flowers of trees blown onto my neighbour's land might cause annoyance or discomfort to a neighbour but unless they also [in this case are a likely risk of injury to a person] on the neighbours land or elsewhere they will not be actionable under s 7". 15 The consequence is that we accept that the blowing of the seed fibres, taking the applicant's case at its highest, causes fibres to be deposited on the applicant's property and causes discomfort or annoyance. However, we cannot be satisfied, absent any actual injury or other proof by medical or scientific evidence, that there is a probability going beyond either and honestly held fear or concern or an actual element of discomfort (but not injury) that the provisions of s 10(2)(b) are triggered. 16 Having found that the relevant test under s 10(2)(b) is not satisfied,, we do not need to proceed to consider matters of discretion arising under s 12 that would bring into consideration the question of the amenity values, wildlife values and the like of the trees. 17 The necessary consequence of all the foregoing is that both applications are dismissed. Tim Moore Peter Thyer Senior Commissioner 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.