Land and Environment Court New South Wales Medium Neutral Citation: Beales v Hamilton [2014] NSWLEC 1257 Hearing dates: 05 December 2014 Decision date: 05 December 2014 Jurisdiction: Class 2 Before: Durland AC Decision: The application is dismissed Catchwords: Trees (Disputes Between Neighbours); damage; injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: R Beales (Applicant) M Hamilton (Respondent) Representation: R Beales, litigant in person (Applicant) M Hamilton, litigant in person (Respondent) File Number(s): 20729 of 2014 Judgment 1This is an application made pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The application has been made by Mr Beales, a property owner and resident in Mt Annan, in relation to five trees located on the adjoining property. 2For the purpose of documenting this decision the trees will be referred to in accordance with the numbering used on the site plan that is included in the application. 3Tree 1 (T1) is a Eucalyptus scoparia (Wallangarra White Gum) located in the rear corner of the respondent's (Mr Hamilton) property near the common side boundary with the applicant's property. 4Tree 2 (T2) is a Eucalyptus tereticornis (Forest Red Gum) located centrally within the respondent's rear yard. 5Trees 3 (T3), 4 (T4) and 5 (T5) are Banksia integrifolia (Coastal Banksias) and are located in the respondent's property along the rear side boundary that is common with the applicant's property. 6The applicant is seeking orders for the removal of Tree 1 and Tree 2. When pressed about what orders are being sought in relation to Trees 3, 4 and 5 Mr Beales was unclear and indicated that the Court should make a decision. 7Under section 10 (2) of the Act, 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 a person. 8There is no claim that T1 and T2 have caused or are currently causing damage to the applicant's property however the applicant expressed concerns that the trees may cause damage to his property in the future or cause injury to a person. The applicant contends that T1, T2 and T3 are causing damage to his property. 9In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a 'rule of thumb', the appropriate timeframe for 'the near future' is a period of 12 months. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the condition of the tree and circumstances of the site apparent at the time of the hearing. Limb failures and whole tree failure 10The applicant expressed concerns in relation to the proximity of T1 to the common side boundary fence near the rear of the site. The applicant also showed the Court the vegetable garden located in the rear corner of his property in the vicinity of T1. Mr Beales is worried that should T1 drop a large limb or should whole tree failure occur his property may be damaged or that injury may occur to a person. Mr Beales is also concerned that should T2 fail in its entirety that his property may be damaged or that injury may occur to a person. 11It was noted on site that no part of the canopy from T1 or T2 overhangs the fence into the applicant's property. The respondent engages an Arborist to periodically prune the trees including the removal of deadwood and any branches overhanging the applicant's property. Some of the pruning has been undertaken at the request of the applicant. 12Mr Beales included a statement from Simon Tabone of Arbor Ability in his application. The statement is dated 2011 and includes some general comments in relation to Eucalyptus scoparia as a species however includes no specific or current assessment of T1. The information is of limited (if any) assistance to the Court. 13The respondent submitted an Arborist's Report relating to T1 and T2 prepared by Mr Karl Flowers from Fine Cut Tree Services. Both T1 and T2 are assessed as being in good health with no obvious defects. 14With the expertise that I bring to the Court as a qualified and professional Arborist I agree with the assessment made by Mr Flowers however would add that, in relation to T1, there is epicormic growth arising from the ends of branch stubs that have not been pruned back to branch collars. 15The issue of the stubs and associated epicormic growth on the side of the canopy closest to the respondent's property was raised on site by Mr Soldo from Camden Council who recommended to the respondent that these stubs be removed. 16There were no limbs from the Banksia trees (T3 - 5) overhanging into the applicants property at the time of the hearing. 17The applicant expressed concerns that as the trees grow limbs will overhang the fenceline and possibly cause damage to his property. 18The applicant pointed out sites within the canopy of T5 where overhanging limbs had been pruned by the respondent in the past and expressed his frustration that he had to regularly request such pruning. 19In relation to the applicant's concerns about limb or whole tree failures in the future there has been nothing evidenced nor sighted that satisfies me that the trees are likely to cause damage to the applicant's property in the near future or that the trees are likely to cause a risk of injury to a person. 20I have no jurisdiction with respect to limb or whole tree failure and therefore that part of the application is dismissed. Sewer main 21The applicant raised concerns about the proximity of T1 to the sewer main. A Sewer Service Diagram submitted with the application indicates that the sewer line is located in close proximity to T1. The applicants stated that he is not aware of any damage to the sewer line caused by the tree in the past nor is there currently any damage occurring that he is aware of. 22In relation to the applicant's concerns about the proximity of T1 to the sewer main there has been nothing evidenced nor sighted that satisfies me that the trees have caused damage, are causing damage or are likely in the near future to cause damage to the applicant's property and therefore that aspect of the application is dismissed. Paved pathway 23T3 and T4 (Banksia integrifolia) are semi mature and approximately 5/6 metres in height. T3 is located approximately 1.2 metres from the fence and T4 approximately 2 metres from the fence. 24The applicant contends that the displacement of some of the unit pavers located along the side of his garage and adjacent to the respondent's property has been caused by the roots of the Banksia trees (T3, 4, 5). 25There was no evidence provided that there is a link between the damage and the trees nor was there anything sighted that would suggest a likely link. The retaining wall located between the trees and the pavement is intact and showing no sign of cracking or displacement. 26In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Craig J discussed the degree to which the Court must be satisfied about the link between the tree and any damage attributed to the tree. At [62] Craig J stated that "something more than a theoretical possibility is required in order to engage the power under the Trees Act". 27In relation to the applicant's claim that the Banksia trees on the respondent's property are the cause of the movement in the pavers located along the side of his garage there has been nothing evidenced nor sighted that satisfies me that the trees are the likely cause of the movement and therefore that aspect of the application is dismissed. Debris and Leaf Drop 28Mr Beales has expressed concerns relating to leaf litter and debris from Trees 1 - 5. He has raised issues relating to the inconvenience of cleaning up the debris, leaves getting into the washing on the line, leaves on the property generally, leaves filling the gutters creating blockages and the likelihood of leaves being a fire hazard. 29I am not satisfied that the debris and leaf litter has caused any damage or is likely to cause damage in the near future however if I am wrong in that I would not make orders for an intervention with the trees on the basis of leaf litter. I am guided by the Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 that says: 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. 30The 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 and therefore this element of the application is dismissed. Fire 31The applicant raised concerns that the build-up of leaf litter in the roof gutters will cause a fire hazard. 32The property is not located in an area that is mapped as a bush fire prone zone, however even if it were, I would not make orders for an intervention with the trees on the basis of fire hazard. 33The risk of fire damage to the applicant's property as a consequence of the flammable nature of trees is discussed in Freeman v Dillon [2012] NSWLEC 1057. As discussed by Fakes C at [86]: "I am not satisfied that general bushfire risk posed by trees is within the jurisdiction of the Court under the Trees Act. A tree in itself does not start a fire...a person lights a fire, lightning strike, sparks from machinery etc may start a fire." 34If damage to property, or injury to a person had occurred as a result of a fire affected tree it may be that the making of orders would be appropriate however as no injury or damage has occurred as a result of a bushfire affected tree, this element of the application is dismissed. 35Having considered all relevant matters I am not satisfied that the requirements under 10 (2) of the Act have been met in relation to any of the trees and therefore orders cannot be made. Orders (1)The application is dismissed. L Durland 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. Decision last updated: 11 December 2014