Land and Environment Court of New South Wales CITATION : Agius v Forrester [2007] NSWLEC 857 APPLICANT Maurice Agius PARTIES : RESPONDENT Esabel Forrester FILE NUMBER(S) : 20822 of 2007 CORAM: Moore C - Fakes AC KEY ISSUES: Trees (Neighbours) - Neighbour Application :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128; Hornsby Shire Council v Malcolm (1986) 60 LGRA 429; CASES CITED: Yang v Scerri [2007] NSWLEC 592; Barker v Kyriakides [2007] NSWLEC 292; Wyong Shire Council v Shirt (1980) 146 CLR 40 DATES OF HEARING: 5 December 2007 EX TEMPORE JUDGMENT DATE : 5 December 2007 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT In person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C FAKES AC 5 December 2007 07/20822 Maurice Agius v Esabel Forrester JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONERS: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Mr Agius of 51 Hunter Street, Riverstone concerning a Lemon Scented Gum (Cymbria citriodoria) (the tree) located on the adjacent property at 42 Railway Terrace. Mrs Forrester owns the property upon which the tree is located. 2 The tree is about 20 m high. Mrs Forrester's property is separated from Mr Agius' property by a narrow strip of land which is owned by a property fronting Regent Street. As in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128, we have applied the decision of the Court of Appeal in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 to consider properties in such circumstances to be adjoining for the purposes of the Act even though there is a small strip of land separating the two properties in this case. 3 We are obliged to consider Mr Agius' application against the four tests posed by s 10(2)(a) and (b) of the Act. 4 In the past three years (that is during the period which Mrs Forrester has owned her property), there have been two branches which have fallen from the tree onto Mr Agius' property or the strip separating the two properties. The branch fall which has given rise to the present application was a branch failure which caused damage to a skylight on the rear garage and storeroom structure on Mr Agius' property. This took place on 5 July 2007. That incident has given rise to this application for pruning or removal of the tree and a claim by Mr Agius for $320 in compensation for his insurance excess for the 5 July 2007 branch failure together with photocopying and associated photographic costs for this application. 5 We have considered the issue of the removal of the tree or ordering pruning against the third of the tests in s 10(2)(a) of the Act by considering whether it is likely in the near future that the tree will cause further damage to Mr Agius' property. As to what in the near future might mean, the Court has given a guidance decision in Yang v Scerri [2007] NSWLEC 592 that, in general terms in the near future is likely to mean a period not exceeding 12 months. We consider that it is appropriate, in these circumstances, to adopt that period of time for our consideration of this application. 6 We have looked at the branch junction of the two major leaders of the tree where there is a minor element of bark inclusion but we consider there is no likelihood of major failure at that point as there is no significant reaction wood and there is no other indication of any likelihood of whole or major failure of the tree. 7 We have also looked at the various branch junctions on the tree at their points of attachment – we have undertaken this inspection by binocular and from the roof terrace on Mr Agius' house. We are unable to see any detectable signs of weakness of attachment of any of those branches. 8 The branch which failed and fell on Mr Agius' roof in July 2007 appears to have failed at a point where there may have been a weaker catchment due to other existing deadwood immediately above the point of attachment of the live branch. Such existence of that the deadwood would not have been unable to be detected had we not had the opportunity of inspecting that point on the tree through binoculars from Mr Agius' roof terrace. This aspect is a matter to which we will return in the context of the compensation claim. 9 However, there does not appear to be any other point of branch attachment where the same circumstances arise. As a consequence, we are not able to be satisfied that there is, on the balance of probabilities, any likelihood in the near future of any further failure and thus risk to Mr Agius' property by graduated from the tree 10 Mr Agius also raises the question of leaves from the tree being deposited in his backyard and this necessitating him undertaking regular maintenance activities to clean them up. In the case of Barker v Kyriakides [2007] NSWLEC 292, the Court dealt with the question of the responsibilities for ordinary maintenance by people who live in urban environments and who have the environmental and aesthetic benefits of trees in such environments. In Barker v Kyriakides, it was held that, unless there were special circumstances to the contrary, no application should be granted for interference with or removal of a tree merely because of the deposition of nuts, leaves, berries, twigs and the like on a neighbouring property. We have examined the circumstances of this tree and its location adjoining Mr Agius' property and buildings. We are satisfied that there are no special circumstances that would persuade us that we ought not adopt and apply the principle enunciated in Barker v Kyriakides. 11 As consequence of the foregoing conclusions, there is no basis to order any interference with or removal of the tree. 12 We now turn to consider the question of the claim for compensation. This is a somewhat more difficult issue. The compensation claim, as earlier indicated, has, as its principal element, the claim for reimbursement of the insurance excess for damage to the skylight on the roof of Mr Agius' garage. Mr Agius raised, with Mrs Forrester and her late husband, his concerns about tree after a small branch fell from it some time prior to the branch failure which led to the present proceedings. Mrs Forrester and her late husband did nothing in response to this concern. However, as the High Court discussed in Wyong Shire Council v Shirt (1980) 146 CLR 40, it may not be unreasonable to do nothing if the likelihood or reasonable foreseeability of the risk giving rise to damage was sufficiently slight as to not to warrant action being taken. 13 The evidence which we have seen of the deadwood present at the point of failure of the branch which fell on Mr Agius' roof was only observable from Mr Agius' roof terrace and only observable by binocular. It would not have been observable from Mrs Forrester's rear yard had she undertaken such an examination. 14 Therefore we cannot be satisfied, on the balance of probabilities, that it would have been reasonably foreseeable by Mrs Forrester that there was any real risk of the further branch failure and that the damage which was caused would be caused to Mr Agius' property. Under such circumstances, we are satisfied that it was not unreasonable for Mrs Forrester and her late husband to do nothing in response to Mr Agius' requests. Therefore the compensation claim fails. As both elements of Mr Agius' application have been unsuccessful, the application is dismissed. Tim Moore Judy Fakes Commissioner of the Court 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.