McLellan & anor v Hull & anor; Randell & anor v Hull & anor [2013] NSWLEC 1209

Land and Environment Court New South Wales

Medium Neutral Citation: McLellan & anor v Hull & anor; Randell & anor v Hull & anor [2013] NSWLEC 1209 Hearing dates: 31 October 2013 Decision date: 31 October 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Applications upheld in part; pruning ordered Catchwords: TREES [NEIGHBOURS] Damage to property; Sooty Mould beyond jurisdiction Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: 20561: J & S McLellan (Applicants) 20597: A & J Randell (Applicants) Both matters: J & P Hull (Respondents) Representation: 20561: Applicants: J & S McLellan (Litigants in person) 20597: Applicants: A & J Randell (Litigants in person) Both matters: J and P Hull (Litigants in person) File Number(s): 20561 of 2013 20579 of 2013

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The owners of two properties in North Balgowlah, the McLellans and the Randells, have applied under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the pruning of branches from an oak tree growing on an adjoining property. 2The applicants claim that branches from the tree could cause damage to their properties, specifically to the McLellans' garage roof and the Randells' dwelling roof and electricity/communications cables. 3The applicants also raise concerns about debris falling from the tree and in particular the fallout of a 'black excretion' (Sooty Mould) onto their properties. They contend that the Sooty Mould stains pavers and other elements of their properties. 4The first respondent has no objection to the removal of dead wood but is concerned about the removal of too much foliage as the tree is a habitat tree for Tawny Frogmouths (seen in the tree). The second respondent has no objection to the removal of other branches. 5Section 7 of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the applicant's land, as a consequence of a tree to which the Act applies that is situated on adjoining land. 6The tree is a mature Quercus robur (English Oak). It is growing at the rear of the respondents' property and overhangs the adjoining properties owned by the applicants. The first respondent indicated where several large branches had been removed without her consent. 7The McLellans engaged an arborist, Mr Peter Castor of the Tree Wise Men to prepare a brief report on the tree. Mr Castor notes that at the time of his inspection in December 2012, the tree was healthy with no obvious structural defects. With the expertise I bring to the Court I concur with Mr Castor's appraisal however I observed a number of dead branches throughout the canopy. I consider the percentage of dead wood to be within the normal range for a tree of this age, size and species. 8Based on conversations with the McLellans, Mr Castor recommends removal of dead wood in excess of 50mm in diameter, pruning of branches in contact with the asbestos roof of the respondents' shed, pruning of branches in contact with the Randells' roof, and pruning to provide clearance for powerlines and a clothesline. 9In addition, Mr Castor suggests monitoring the population of aphids in the tree, and if necessary, taking steps to manage their numbers. 10In 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. 11The 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...". 12As both applications are concerned in part about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree, any history of failures and the circumstances of the site apparent at the time of the hearing.