Land and Environment Court New South Wales Medium Neutral Citation: Gorrie v Peine [2012] NSWLEC 1244 Hearing dates: 24 August 2012 Decision date: 24 August 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage or injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Threatened Species Conservation Act 1995 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592, Category: Principal judgment Parties: Mr P Gorrie (Applicant) Ms M Peine (Respondent) Representation: Applicant: Mr P Gorrie (Litigant in person) Respondent: Mr T. Flaherty (Barrister) Respondent: Michael Flaherty Solicitor File Number(s): 20568 of 2012 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER:This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Avalon against the owner of trees growing on an adjoining property. 2The applicant is seeking orders for the pruning of branches from two trees that overhang his property. Specifically, he requests that the overhanging branches be cut back to a point where they are no longer likely to cause damage or injury to property or persons on his property. He also requests that the trees be pruned on a regular basis to avoid similar problems in the future. 3The application includes a claim for compensation of $737.00. This was withdrawn by the applicant as this sum relates to two quotes for pruning and not for rectification of any damage. 4The trees are two mature Corymbia maculata (Spotted Gum) growing to the east of the applicant's dwelling. They are located on or near the southern corner of the respondent's property. The trees are part of a group of trees that includes a large Grey Gum and an Ironbark. 5The applicant contends that in windy conditions the trees continually drop small branches and other debris onto the roof of his dwelling. He is particularly concerned that in strong winds, branches will break off and cause major damage to his dwelling or cause personal injury. In his application he states: From 51 years insurance experience I know it is not a matter of if the trees will cause damage or injury but when they will cause damage or injury. Damage is already being caused by blocked gutters and drains which could cause water flooding into my property. 6The hearing was held on site. No arborists or other experts were present. The applicant was self-represented and the respondent was represented by counsel. 7On site, the applicant stated that in the three years that he and his wife have lived on their property, the two trees in question have not caused any damage to his property nor have caused injury to anyone. When the issue of leaf litter was broached, the applicant stated that he was aware that the court was unlikely to make any orders about falling debris and he did not press this issue. 8The applicant showed me several small pieces of dead wood that he said had fallen onto his property, however he could not say from which tree they had fallen. The branches were less than 20mm in diameter. 9The applicant's main concern is that in strong winds, particularly from the south-east, branches, or indeed whole trees, may fall onto his property. The applicant relies in part on a general article by the insurer, Lloyd's, on extreme weather events around the world, as well as part of a computer-generated form from an insurance company asking whether there are any trees within 20 metres of a building in excess of two storeys high. 10According to the respondent's statement, on 23 June 2012 she obtained a brief report from a consulting arborist in respect of the two Spotted Gums and the large Grey Gum. The brief field notes tendered with the statement indicate that the Spotted Gums are protected by the Pittwater Tree Preservation Order and are listed in the Threatened Species Conservation Act 1995. The notes identify minor but manageable dead wood, no significant structural defects or old failure sites; a stub in the Grey Gum is identified as being likely habitat. The notes recommend VTA [Visual Tree Inspection] at two-year intervals. 11On 27 June 2012, the respondent obtained a detailed quote from a tree contractor for selective pruning of live branches from several trees in the group, including 'shorten branch over neighbours' for Tree 2, and the removal of all dead wood down to 20mm in diameter from all of the trees. According to the respondent's statement, the work, as quoted, was carried out a week later. 12With the expertise I bring to the Court I observed the trees to be healthy with some small elements of terminal dead wood. The form of the trees is consistent with having grown as part of a group in that they have an asymmetric canopy. Tree 1 is the larger of the two and is growing to the southeast of Tree 2. Tree 1 has a secondary leader, which has been radically shortened some time ago; apart from a stub associated with that former pruning, I saw no obvious structural defects in either of the trees. A fresh cut on Tree 2 indicated it had been recently pruned. The pruning wound was on the side of the tree closest to the applicant's dwelling. It would appear that the pruning works were carried out as quoted by the contractor. Both trees appear to be protected to some extent by the large Grey Gum from winds from the southeast. I should also note that on the evening before the hearing, the area was subjected to very strong winds. 13During the course of the hearing, Mr Flaherty, counsel for the respondent, stated that he was advised by his client that Tree 1 was in fact on council-owned land and therefore the Trees Act did not apply. He stated that he had seen a survey plan showing the boundary to be below Tree 1. In his view, this was something the applicant should have confirmed. The applicant was unaware of the extent of council-owned land and had assumed it was at the maintained/ constructed frontages of both his and the respondent's properties. Jurisdictional tests 14Section 4(2)(a) states that this Act does not apply to trees situated on any land that is vested in, or managed by, a council. As no survey plan was produced, Mr Flaherty's advice could not be tested. In the absence of a survey, I would have made the same assumption as the applicant. In the event that the tree is actually on the respondent's land, I will proceed to consider it under s 10(2) of the Act. However, if I am wrong in my assumptions about the tree's location, any orders I may make for intervention with that tree would be invalid. 15In applications under Part 2, the key jurisdictional test is satisfaction of s 10(2). This states that the Court must not make an order unless it is satisfied that any of the trees concerned have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are likely to cause injury to any person. 16The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act..." 17If any one of the tests in s 10(2) is satisfied for any of the trees the subject of the application, then the Court's powers under s 9 of the Act to make any orders it thinks fit to remedy, restrain or prevent damage or injury, are engaged. If no tests are met, then the Court cannot make any orders. Findings and orders 18As the trees have not caused, and are not currently, causing damage to the applicant's property, these elements of s 10(2) are not satisfied. Based on my observations of the trees and in the light of recent pruning, there is nothing in either tree to suggest that either of them is likely in the near future to cause damage to the applicant's property or to cause injury to any person. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. This is a time period I consider appropriate in these circumstances. 19In determining possible future injury, the Court considers "the foreseeable future" based on the condition of the tree, any evidence or history of failures, and the particular circumstances of the site. In my opinion, the risk of injury falls into the category of 'theoretical possibility' or unsubstantiated opinion and as such, s 10(2) is not met in this regard. 20As s 10(2) is not satisfied for either tree, the Court has no jurisdiction to order any intervention with the trees; as a consequence, the Orders of the Court are: (1)The application is dismissed. _________________________ J Fakes 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: 30 August 2012