Williams v Whitford & ors [2013] NSWLEC 1201

Land and Environment Court New South Wales

Medium Neutral Citation: Williams v Whitford & ors [2013] NSWLEC 1201 Hearing dates: 21 October 2013 Decision date: 21 October 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; injury; debris in gutters Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Freeman v Dillon [2012] NSWLEC 1057 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Mr L S Williams (Applicant) Mr G F Whitford (First Respondent) Mr B I Whitford (Second Respondent) Ms N M Whitford McInnes (Third Respondent) Representation: Applicant: Mr L S Williams (Litigant in Person) Respondents: Mr G F Whitford (Litigant in person) File Number(s): 20368 of 2013

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Sussex Inlet against the owners of trees growing on an adjoining property. 2The applicant is seeking the removal of 15 trees located within 3 - 4 metres of the common boundary fence between the parties' properties on the basis that: * Leaves and other debris falling from the trees block roof gutters and valleys leading to flooding of the dwelling; * Branches falling from the trees have broken, and could break, roof tiles; * In southerly storms, whole trees may fall onto his property thus potentially causing damage and injury; and * The trees constitute a fire hazard. 3The respondents' preference is that nothing should happen to the trees as: * The trees were well-established when the applicant purchased his property; * The builder had the opportunity to locate the dwelling on the other side of the block away from the trees but elected to build it close to the trees; and * A change in the style of guttering or the installation of gutter guard would assist the applicant with managing the leaf fall. 4The respondents stated that they will abide by any order of the Court but are concerned about the financial costs of any pruning or removal of trees. 5In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 6The 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...". 7As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 is relevant. This decision has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in this matter. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the evidence of any failures, and the circumstances of the site apparent at the time of the hearing. 8All but one of the 15 nominated trees are Casuarina glauca (Swamp Oak); the other tree is a species of Eucalyptus. The Casuarinas are likely to be remnants of, or seedlings from, the original vegetation. They are located in the rear yard of the respondents' property and are part of a larger group of trees. 9Nine of the ten trees growing alongside the applicant's dwelling overhang the dwelling by a small extent. The remaining five trees partly overhang the applicant's driveway. 10Neither party engaged any independent arboricultural expert to provide written or oral evidence. 11With the expertise I bring to the Court I observed the nominated trees to be in reasonable health. I saw no significant, or even minor, dead wood on any of the overhanging portions of the casuarinas. While the Eucalypt had some dead wood I did not consider it likely to cause damage to the applicant's property or injury to anyone. I saw no signs of structural weakness in any of the larger branches overhanging the applicant's dwelling. I saw no signs of instability in any of the trees, including the Eucalypt that leans towards the applicant's driveway. 12The applicant contends that the gutters closest to the trees require frequent cleaning and are difficult to access. While the applicant claims that the build up of debris in the gutters has caused flooding to part of the dwelling, the applicant produced no evidence of that flooding or of any damage that arose from it. 13Given the absence of any evidence of damage arising from leaves and other debris in the gutters, I am not satisfied that any of the tests in s 10(2) are met and therefore the Court has no jurisdiction to make any orders on this basis. 14However, if I were wrong in this, as a matter of discretion no orders would be made for any intervention with the trees on the basis of debris. 15The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. 16There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders have been made for any intervention with a tree on this basis. I am not satisfied that there are any exceptional circumstances in this matter that would lead me to deviate from the usual application of this principle. 17In regards to the respondents' position that the trees were there when the applicant purchased his property, the Court has published another Tree Dispute Principle in Black v Johnson (No 2) [2007] NSWLEC 513. While the principle doesn't strictly apply in this matter, the thrust of the principle is relevant. 18I agree with the respondents that the builder elected to build the dwelling close to the trees rather than closer to the opposite boundary and the adjoining dwelling. In purchasing the newly constructed dwelling, the applicant adopted the situation and effectively came to the nuisance. 19In regards to the cracked tiles, while the applicant produced no photographic evidence of the damage, I am prepared to accept his statement that several tiles have been cracked, and on at least one occasion a dead branch from one of the trees was seen close to a broken tile. 20On this basis, I am satisfied that at least one of the trees, possibly tree 2, has caused damage to the applicant's property. As s 10(2) is satisfied, the Court's powers to make orders under s 9 of the Act are engaged. 21In matters where dead wood has caused damage to an applicant's property, it is common practice for the Court to make orders for the removal of dead wood from the tree. However, given my observations of the lack of any significant dead wood in any of the parts of the trees that overhang the applicant's property, there is no utility in making such an order. Similarly, I observed nothing to warrant any orders for the removal of any other branches overhanging the applicant's property. 22With respect to the applicant's concerns about whole tree failure, while this may be a hypothetical possibility, there is no evidence to suggest this is likely to be realised in the foreseeable future. Absent any independent arboricultural evidence to the contrary, no orders can be made for any intervention with any of the trees on this basis. 23The risk of fire damage to the applicant's property as a consequence of the proximity of the respondents' trees is discussed in Freeman v Dillon [2012] NSWLEC 1057 at paragraph [86]. In essence, the issue of fire has no relevance to the circumstances of this matter and the issue will not be given further consideration. 24Therefore on the basis of the foregoing, the Orders of the Court are: (1)The application is dismissed. _________________________ Judy 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: 22 October 2013