Borg-Musin & anor v McInnes [2014] NSWLEC 1052

Land and Environment Court New South Wales

Medium Neutral Citation: Borg-Musin & anor v McInnes [2014] NSWLEC 1052 Hearing dates: 24 March 2014 Decision date: 24 March 2014 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; injury; potential storm damage Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Rural Fires Act 1997 Cases Cited: Awad v Hardie (No. 3) [2012] NSWLEC 1067 Freeman v Dillon [2012] NSWLEC 1057 Ghazal v Vella (No. 2) [2011] NSWLEC 1340 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: Ms C Borg-Musin and Mr C Musin (Applicants) Mr D McInnes (Respondent) Representation: Applicants: Ms C Borg-Musin and Mr C Musin (Litigants in person) Respondent: Ms M Brodzik (Agent) File Number(s): 20905 of 2013

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicants in these proceedings are concerned that a tree growing on an adjoining property in Bawley Point may, in strong winds or through some other 'act of God', fall onto their house and cause serious damage and or injury. 2They have applied under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), for orders seeking the removal of the tree at the respondent's expense. 3Apart from their concerns about whole tree failure, the applicants are also concerned that the tree is a fire hazard as their property is located within a bushfire zone. They also contend that branches have fallen from the tree and damaged the roof of a vehicle parked beneath it. 4The applicants' concerns appear to be based on verbal comments made by a council tree contractor and a local logger. The applicants were told words to the effect of "Lady, if I was you I would ask my neighbour to cut that tree down." 5In applications under Part 2 of the Act, the key jurisdictional tests are found in s 10(2). This section 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 applicants are concerned 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 relevant evidence and the circumstances of the site apparent at the time of the hearing. 8As neither party engaged an arborist to provide independent expert evidence, the following observations are based on the arboricultural expertise I bring to the Court. 9The tree is an early mature Southern Blue gum (probably Eucalyptus bicostata) of moderate dimensions, growing close to the common boundary between the parties' properties. The tree is located between the parties' driveways and partly overhang's the applicants' property. 10The tree appears to be in average health with a relatively small percentage of small diameter dead wood throughout the canopy. The percentage is well within normal and expected limits. While the second applicant contends that the tree is exhibiting symptoms of "heat stress" on its trunk, I saw nothing abnormal about the tree that would lead me to concur with his opinion. 11The applicants are concerned that the tree leans towards their house. Although there is a slight lean, in my opinion the lean is within a normal range and I saw no signs of instability in the tree or the surrounding soil that would indicate a predisposition to whole tree failure. 12In regards to the alleged damage to the roof of the applicants' car, no evidence was produced to confirm this. The applicants did not inform the respondent of the incident. They now choose to park their car elsewhere. 13In putting the applicants' case and their word at their highest, damage to the roof of a car as a consequence of dead wood falling from the tree is sufficient to satisfy s 10(2) and engage the Court's jurisdiction to make orders under s 9 of the Act. 14Section 9(1) enables the Court to make any orders it thinks fit to remedy, restrain or prevent damage to an applicant's property or injury to any person. This requires consideration of relevant matters under s 12.