Land and Environment Court of New South Wales CITATION : Hinde v Anderson and anor (No 2) [2009] NSWLEC 1258 APPLICANT J Hinde PARTIES : RESPONDENTS L & S Anderson FILE NUMBER(S) : 20167 of 2009 CORAM: Moore SC - Thyer AC KEY ISSUES: JURISDICTION - TREES (NEIGHBOURS) :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Hinde v Anderson [2007] NSWLEC 847 CASES CITED: Hinde v Anderson and anor [2009] NSWLEC 1148 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Yang v Scerri [2007] NSWLEC 592 DATES OF HEARING: 21 July 2009 EX TEMPORE JUDGMENT DATE : 21 July 2009 APPLICANT Mr R Lancaster, barrister INSRTUCTED BY LEGAL REPRESENTATIVES: Deacons RESPONDENTS Mr P Murray, solicitor Tress Cox JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE SC THYER AC 21 July 2009 20167 of 2009 Hinde v Anderson JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: On 18 December 2007, Tour C and Fakes AC gave a decision concerning a Chinese Elm tree, the location and nature of the tree and the two properties involved in those proceedings and again in these proceedings are described in their judgement (see Hinde v Anderson [2007] NSWLEC 847) and we do not propose to repeat them for the purposes of this decision. 2 A fresh application has been made by the applicant in the earlier proceedings to have the Court consider further whether or not there should be some intervention with or removal of the Chinese Elm. 3 As a preliminary issue in the second application, a decision was given by us on the question of whether the doctrine of res judicata applied (see Hinde v Anderson and anor [2009] NSWLEC 1148). The result of that decision was our finding that a second application was competent but that the success of any second (or indeed any subsequent) application concerning a tree that had been the subject of an earlier hearing needed to be based on changes in circumstances since the first decision was made. Those changes in circumstances then needed to be tested against the four jurisdictional questions posed by section 10(2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), namely: o Has the tree caused damage to the applicant's property? o Is the tree currently causing damage to the applicant's property? o Is the tree likely in the near future to cause damage to the applicant's property? or o Is the tree a risk of injury to any person? 4 In the present proceedings, the applicant asks us to accept that the first of the jurisdictional pre-requisites in section 10(2)(a) is met – namely that the tree has caused, since the earlier decision by our colleagues, additional damage to her property. That damage is damage to a ridge cap second from the gable-end at the western end of the main portion of the house, where there has been an element of the ridge capping broken in January 2009. We accept, for the purposes of this decision (without needing to determine it), that that damage to the ridge capping was caused by a limb of a tree. 5 During the course of this morning's inspections, we have had the opportunity of an extensive examination of and arboricultural advice concerning the Chinese Elm and having pointed out to us, by Ms McKenzie, arborist for the applicant, a point at which a branch has detached from the Chinese Elm in what might be described as a generally south-eastern direction from the damaged portion of the ridge capping. 6 We have also been shown a number of dead tree elements that the applicant has retrieved from the front courtyard of her property. 7 It is the agreed position of the arborists who have given evidence during the course the site inspection (who, in addition to Ms McKenzie, comprise Mr Ford for the applicant and Mr Castor for the respondent) that none of the elements that have been retrieved are the element that has detached from the Chinese Elm at the tree stub we have shown and which we have inspected from both the properties (including inspections by binoculars from both properties). 8 Of this tree detritus collected by the applicant from her front courtyard, there were three elements that are, for the purposes of this decision, assumed by us to be elements of Chinese Elm (although, with respect to the largest of those three, Mr Castor expresses reservations – reservations we need not determine for the purposes of this decision). However, the fourth element is clearly a length of branch, from a Eucalypt, that has been deposited in the applicant's front courtyard. 9 There is, to the south-west of the applicant's property along Burran Street, located in a nearby pocket-handkerchief park, a dead or dying Eucalypt some 12 to 15 m in height. The Eucalypt branch that was found in her courtyard is approximately 20 to 25 mm in diameter at its thickest and is approximately 400 to 500 mm in length. 10 This tree, in the council reserve nearby, is the only tree of a relevant species from which this branch should have been carried and deposited in her courtyard. In addition, in the same general direction, there is a tall palm tree that has deposited a frond trapped by the wires in a local telegraph pole in a direction of wind carrying blow from the south-west (that being the direction of carry from the Eucalypt of the Eucalypt branch that has been deposited in the applicant's courtyard). 11 The question I put to the advocates to address us about, as a preliminary point, is whether, to the degree of comfortable satisfaction discussed by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, we could be satisfied that the damage to the ridge cap was occasioned by a branch from the Chinese Elm. 12 Two matters are relevant in this regard. The first is that had there not been a Eucalypt branch in the applicant's front courtyard, we would not have been prepared to speculate that that might have been possible. However, there is the unquestioned fact of such a branch of a size capable of having caused the damage to her ridge capping actually being carried to her courtyard from the Eucalypt and that that carriage is consistent with the direction of carriage of the Palm frond. 13 Second, although there are Chinese Elm branches also found in her courtyard, we have not had pointed out to us any point of detachment from the tree consistent with the significantly largest of those three branches and that the point of detachment of that branch from the tree is not consistent with the torn branch stub to which we have been taken. 14 Given that the burden of proof, on the civil standard, lies with the applicant (to the degree of comfortable satisfaction to which we have averted), we cannot be satisfied tha applicant has demonstrated that the first of the tests under section 10(2)(a) of the Trees Act is met – namely that the tree has, since the decision given by Tour C and Fakes AC, caused damage to the applicant's property. 15 Second, there is no evidence, during the course of these present proceedings, that the tree is currently causing damage to the applicant's property nor is there any evidence that could satisfy us with respect to the test in section 10(2)(b) of the Act, that the tree is a risk of injury to any person. However, we consider it appropriate to indicate that we are prepared to hear the parties further (including further evidence from the arborists, if relevant), as to why we should conclude that the jurisdiction of the Court is engaged on the basis that the tree is likely, in the near future, to cause damage to the applicants property – any such evidence will have to be in light of the rule-of-thumb published by the Court in Yang v Scerri [2007] NSWLEC 592 that "the near future" for the purposes of that test in s 10(2)(a) is, in general terms, within 12 months of the date of this hearing. Tim Moore Peter Thyer Senior Commissioner Acting Commissioner of the Court NOTE: After an adjournment to consider this ruling, the applicant elected not to present any evidence in support of a s 10(2)(a) finding and the application was dismissed. 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