Land and Environment Court of New South Wales CITATION : Lee v Long [2009] NSWLEC 1201 APPLICANT Lee, Ley Hoon Amy PARTIES : RESPONDENT Long, Ken & Anor FILE NUMBER(S) : 20114 of 2009 CORAM: Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- damage; flat metal roof. LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 26 May 2009 EX TEMPORE JUDGMENT DATE : 26 May 2009 APPLICANT Ley Hoon Amy Lee (Litigant in person) LEGAL REPRESENTATIVES: RESPONDENT Ken Long (Litigant in person) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 26 May 2009 20114 of 2009 Ley Hoon Amy Lee v Ken and Narelle Long JUDGMENT 1 ACTING COMMISSIONER: Ms Lee (the applicant) is the owner of 7 Poplar Court, Castle Hill. She makes an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify and prevent property damage, to prevent injury, and seeking compensation regarding a Tallowwood tree (the tree) growing on adjoining land to the west. She seeks orders to have the tree removed, or failing that to have the branches that are over the bedrooms of her house cut back to the trunk, and for help to pay for repair to her rusting roof. 2 Ms Lee moved into her home in 1980 when the house was 15 years old. She was told the tree was planted five years before, in 1975. Her house has its original flat steel roof with concealed guttering. The roof is now 44 years old, has some rust, and she believes that it needs to be recoated or replaced. She says that the roof has leaked causing damage in the lounge rooms because leaves and twigs collect on the roof blocking flow to the gutters. She says that a branch from the tree broke a skylight on the roof in 1985. She says that a live branch about 80 mm diameter and 6-8 m long fell beside her house in 2004-5, a live branch about 50 mm diameter and 3-4 m long fell in cyclonic conditions about three weeks ago, and a dead branch about 30 mm diameter and 2.5 m long fell onto her paving last week. None of those branches caused any damage. Ms Lee fears that large branches may fall, or the whole tree may fall, causing damage to her house or injury to her family. At the hearing she pointed out some raised blocks in her paving that she thinks are caused by roots of the tree. The block paving was installed about 24 years ago. 3 Mr and Mrs Long (the respondent) are the owners of 7 Bonnefin Place, Castle Hill (the property) the adjoining land to the west. They bought their home in 2000. The tree is in the north-eastern corner of their backyard. They are fostering their six and eight year old grandchildren, and have an aviary and play equipment under the tree. They say no branches have fallen on their property and they have no concerns about the safety of the tree. 4 Mr and Mrs Long provided a package of information to the Court, containing a statutory declaration, photographs, letters from Baulkham Hills Shire Council, and receipts for pruning they have done. That package was not on the Court file and not available to me prior to or at the hearing. I reserved my decision at the hearing so that I could obtain and consider that information, which I have now done. 5 On the basis that the application proceeded beyond the directions hearing to the on-site hearing, I am satisfied that: o The applicant is owner of the land in accordance with s 3(1) and s 7 of the Act; o The applicant has made reasonable effort to reach agreement with the respondent in accordance with s 10(1)(a) of the Act; o The applicant has given notice to the parties in accordance with s 8 of the Act; and o The property is "certain land" in accordance with s 4(1), and not land to which the Act does not apply (s 4(2)). 6 I have observed the dividing fence, and both parties agree that the fence is on the common boundary. The tree is growing about 1.5 m on the Longs' side of the common boundary. On that basis I find that the tree is situated wholly on the property, meeting s 4(3) and s 7 of the Act. 7 As a consequence there is an application that the Court may determine. 8 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property on the land? Is the tree now causing damage to the applicant's property on the land? Is the tree likely in the near future to cause damage to the applicant's property on the land? Is the tree likely to cause injury to any person? 9 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 10 Further, before determining an application, the Court is to consider the matters in s 12 of the Act. The tree 11 The tree is a Tallowwood (Eucalyptus microcorys), about 18 m tall with a crown spread of about 15 m and trunk diameter of about 0.7 m. It is a tree within the meaning of that term in s 3(1) of the Act. It appears to be a mature, well balanced tree in good condition with no obvious structural problems. Its trunk appears to be sound, and it appears to be well attached in the ground. There is some dead wood in the crown. I could see locations on the trunk where Mr Long advised that branches had been pruned at his cost following representations from Ms Lee in 2000 and 2005. Damage and injury 12 I accept that the tree broke Ms Lee's skylight in 1985, and on the balance of probabilities the tree is likely to be the cause of slight lifting of Ms Lee's paving. On that basis, I am satisfied that the tree has caused damage to Ms Lee's property on her land, meeting the first test in s 10(2)(a) of the Act. As a consequence the Court has power to make such orders as it thinks fit regarding the tree, in accordance with s 9 of the Act. 13 As the last damage by a falling branch occurred in 1985, I do not find that damage or injury from a branch is likely in the near future. Also, as the tree appears to be structurally sound, there is no reason to expect major branch or whole tree failure to cause damage in the near future, or injury. s 12 Considerations 14 Addressing the matters in s 12 which the Court is required to consider: (a) The tree is located about 4 m from the nearest corner of Ms Lee's house. Some branches of the tree overhang Ms Lee's roof. (b) The tree is protected by the Tree Preservation Order of Baulkham Hills Shire Council. Following his application to Council, and inspection by Mr Diversi, Council issued a permit valid to 2 September 2009 which states: Eucalyptus microcorys (Tallowwood) ….should be deadwooded and pruned to reduce end weight by removing no more than 15% of the canopy. (c) There is no evidence that the tree has any historical, cultural, social or scientific value. (d) The tree is an Australian native but not endemic to the area. It would contribute to the local ecosystem through provision of food, shelter and nesting sites for some species. The Longs say that it provides shelter for white cockatoos, kookaburras, rainbow lorikeets and sparrows. (e) The tree is a beneficial landscape feature for the Longs' property. It also makes a strong contribution to the natural landscape and scenic value of the local area where it is one of the new canopy trees that provide a light woodland cover. (f) The tree contributes to public amenity through oxygen production, carbon sequestration, cooling summer shade, reduction of stormwater runoff, and deflection and dispersal of strong winds. (g) The roots of the tree are likely to reduce soil erosion nearby. (h) Damage (i) Contribution other than the tree, Act or omission by applicant: 1. There are three other large trees nearby that are also likely to be a source of leaves on Ms Lee's roof. Those trees are a Eucalypt in the front yard of the adjoining house to the north-east, a Liquidambar in the backyard of a property to the north, and a Jacaranda in the backyard of the property to the south. Ms Lee advised that there was also a large gum tree in the property to the north-west but it was removed by the owners after a request from her in 2002-3. The removed tree may have made a substantial contribution to debris on the roof in the past, and the other trees between them may be an equal or greater source of leaves than the Tallowwood. 2. The design of Ms Lee's roof, being flat with concealed gutters, two skylights and two fan exits, has areas that obstruct free flow of water, trap leaves and debris, does not provide enough slope to clear debris, and has little tolerance before flooding and leakage occurs. 3. The metal roof is now about 44 years old. I climbed onto the roof with the parties to inspect the areas of concern to Ms Lee. I observed that the roof appeared to be in good condition generally. There is rust where there has been interference with the metal such as around the skylights and vents, and at the ends of the sheets, and in some other areas. There appeared to be a bit more rust under the tree than in other areas, but that may be due to a combination of debris from the tree and the shading of that area by the tree. Mr Long advised that he was employed from 1965 to 1985 by BHP who made the roof sheeting. He was customer contact officer for BHP, and says that the original warranty for the roofing was 10-15 years. It seems that Mrs Lee is fortunate that the roof has given 44 years of service so far. 4. The paving damage is minor and is not a trip hazard. Although it is likely to be caused by roots of the tree, it may also be that areas have sunk over time. (ii) Applicant's or tree owner's steps to prevent or rectify the damage: 1. Ms Lee states that she blows the leaves off the roof every 3-6 weeks, but from my observation, blowing the leaves would be likely to blow them into the concealed gutters which would be very difficult to clean. 2. Mr Long had the tree pruned in response to requests from Ms Lee: in 2000 at a cost of $440, and a further three large branches removed in 2005 at a cost of $700. 3 Mr Long has obtained a permit from Council to prune the tree again, and says that he intends to do that pruning before the permit expires in September 2009. 4 In March 2009, Mr Long requested that the tree be reinspected by Council. The written response from Council dated 30 March 2009 states: The site has been re-inspected and I wish to advise that as discussed with you on site the dropping of leaves and twigs is not considered sufficient grounds for the removal of an otherwise healthy tree. (i) Injury The Longs' management of the tree as noted above is also action to reduce risk of injury. (j) Other matters relevant in the circumstances of the case: (1) The Longs have been responsible managers of the tree since they purchased the property in 2000. They responded to Ms Lee's past requests by pruning the tree at their own cost in 2000 and 2005, and have obtained a permit and say they intend to prune the tree by September 2009. (2) The current permit for pruning the tree advises that dead wood should be removed, and it is reasonable to expect they will do that. (3) The Longs have explained that they have financial hardship due to limited income and their fostering responsibilities. Conclusions 15 I find that skylight damage in 1985, paving that has been slightly lifted, and roof leakage that is likely to be the result of the roof design and the contribution of leaves from other trees, is not sufficient reason to order removal or interference with the tree. 16 I find that rust on the metal roof after 44 years, even if the presence of leaves may have contributed to the rust, is also not sufficient reason to order removal or interference with the tree. 17 Similarly, I find that rust on the roof that has lasted at least three times the original warranty period for the material, is not a reason to order that compensation be paid by the owner of the tree, considering also that other trees have contributed to leaves on the roof, and The Longs have only been owners of the tree for nine years of its 34 years of growth. 18 On the basis that the tree has been inspected by Council and only pruning has been permitted, and the tree appears to be well balanced, healthy and without structural defects that are likely to cause damage to Ms Lee's property or injury, I find there is no reason to order removal or interference with the tree. 19 On the basis that the Longs have shown themselves to be responsible owners of the tree and reasonable neighbours, having carried out pruning of the tree at their own cost in 2000 and 2005 in response to Ms Lee's requests, and as they have obtained a permit and intend to prune the tree by September 2009, and as they have some financial hardship, I find that it is not appropriate to order them to carry out pruning of the tree. Orders 20 The orders of the Court are: 1. The application is refused. ___________________ Peter Thyer Acting Commissioner of the Court The formal orders may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 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.