Land and Environment Court New South Wales Medium Neutral Citation: Rogers v Relf & anor [2016] NSWLEC 1018 Hearing dates: 27 January 2016 Date of orders: 27 January 2016 Decision date: 27 January 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application granted in part see [37] Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; compensation; sufficiency of evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 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: Mr M Rogers (Applicant) Mr C Relf and Ms D Smith (Respondents) Representation: Applicant: Mr M Rogers (Litigant in person) Respondent: Mr D Tyrell (Solicitor) Solicitors: Respondent: McKees Legal Solutions File Number(s): 21057 of 2015 Judgment 1. COMMISSIONER: The applicant owns a battle axe block in Padstow Heights. The respondents own the adjoining property to the west; along that property's eastern boundary are a number of trees. 2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of one tree, removal of tree roots, and compensation for damage caused to his property. 3. These orders are sought on the basis that the trees either have caused, or could in the future cause, damage to the applicant's property or injury to anyone on it. 4. The trees the subject of the application are identified in an arborist's report prepared for the respondents by Mr Ross Jackson. The trees are: * Tree 1(T1) Eucalyptus haemastoma (Scribbly Gum) * Trees 2-6 Cupressus sempervirens (Italian Cypress) * Tree 7 Mangifera indica (Mango) 1. At the commencement of the hearing the applicant raised an objection to the lateness of the respondents' evidence (Mr Jackson's report); the material was filed with the court 8 days later than the date specified in the directions. I was informed that an electronic copy was forwarded to the applicant several days earlier. While he accepted he was not unduly prejudiced by the lateness, the applicant raised the matter on principle. I allowed the evidence on the basis that the applicant had received the material in sufficient time to consider its contents and prepare any questions or submissions and that availability of experts can be difficult over the holiday period. 2. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. The 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…". 2. The applicant is concerned about future damage or injury. 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. 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, any history of previous failures and the circumstances of the site apparent at the time of the hearing. Tree 1 - Eucalypt 1. The applicant contends that in November 2015, in calm conditions, a very large green branch fell from T1 onto his property and caused substantial damage to it. The applicant seeks the removal of T1 because he is concerned that other limbs will fail onto his property, or indeed, the entire tree may fail at ground level and collapse onto his dwelling. Should this happen, he maintains that apart from causing major damage to his dwelling it could also result in significant injury to his family. 2. Apart from the major limb failure in 2015, the applicant states that other branches have failed in the past and that dead wood and other debris constantly falls onto the roof of his enclosed verandah which is located beneath the tree's canopy. Evidence of a more recent failure was noted on site; the broken branch is caught in the canopy. The application claim form also refers to debris, particularly flowers from the Eucalypt, causing staining of the pool. 3. The application claim form includes photographs taken at the time of the clean-up carried out by the SES. 4. Part of the compensation claim comprises $750 as the excess payable on his insurance policy. The applicant contends that it is unreasonable for him to pay for this as it was not his tree that caused the damage. The tree caused damage to three different parts of the applicant's roof, his barbecue and a panel of the dividing fence. 5. Apart from the damage caused by the fallen branch, the applicant maintains that roots from the tree have caused damage to the pebble finished, concrete slab floor of part of the enclosed verandah. A photograph in the claim form shows the crack but not its relationship to the external wall or to the room in general. 6. During the hearing the applicant stated that a concreter looked at the crack and given the proximity of the tree, assumed that the crack had been caused by tree roots. The applicant also stated that apart from the crack, the wall on the corner of the room closest to the tree had cracked and that the corner of the structure was being lifted by the roots. The applicant mentioned that the concreter/ builder had suggested underpinning was required. There is no report to substantiate this nor is there any written quote for the cost of repair. 7. The crack in the floor runs approximately parallel to the external wall of the enclosed verandah. The external wall is within 500mm of the dividing fence. The base of the trunk is approximately 2m or so from the dividing fence. 8. The failure of the branch is not disputed by the respondents. Mr Jackson inspected the tree on 13 January 2016 and prepared a report (Exhibit 1). In his opinion the tree is healthy, with no obvious structural defects and shows no signs of instability. Mr Jackson notes some minor dead wood within the canopy. In his opinion the loss of structural strength and decay at the junction of with the main trunk contributed to the failure of the large branch. He notes a dead branch stub (with decay extending below it) just above the point of failure. He further states that the dead branch stub would not have been easily seen from ground level. 9. Mr Jackson gave oral evidence at the on-site hearing. The end of the branch is still on the respondents' property. With the arboricultural expertise I bring to the Court I observed the dead branch stub identified by Mr Jackson. I also observed some decay and other degraded wood; I agree with Mr Jackson that the branch appeared otherwise sound. When asked, Mr Jackson stated that, in his opinion, the failure was unpredictable. 10. There are a number of branches which directly overhang the applicant's dwelling; the ends of two of these branches are close enough to have the potential to cause damage to the applicant's dwelling. The tree also contains a normal amount of dead wood, some of which is located close to the applicant's property. 11. In his report Mr Jackson makes a number of recommendations: removal of dead wood from the canopy, removal of the hanging branch, and selective removal of two branches which are close to the applicant's dwelling. He does not recommend the removal of the tree. 12. The respondents are content to follow Mr Jackson's recommendations and to pay for the work. They do not wish to have the tree removed as they value the tree for the amenity and screening it provides. The respondents contest the damage to the floor. 13. For the reasons he provides in his application claim form and summarised above in [9] and [13], the applicant still presses the removal of the tree. Findings – tree 1 1. Having considered the evidence I am satisfied that the tree has caused damage to the applicant's property; as s 10(2) is met, the Court's jurisdiction to make orders with respect to tree 1 is engaged. 2. I am satisfied on Mr Jackson's evidence and on my own expertise that removal of the tree is not warranted. Although there has been a failure of a large branch, there is nothing about the tree's structure that would indicate the imminent failure of another branch. I agree with Mr Jackson's recommendations and orders will be made for the removal of the two branches (illustrated in Annexure 1), removal of the hanging branch, and removal of dead wood. As the decline of branches is a normal and predictable feature of the growth of trees, the biennial removal of dead wood and any dislodged branches will be ordered. The respondents are to be responsible for this work. 3. In regards to the leaf litter, flowers and other small debris from the tree, there is no evidence of any damage arising from it. However, if I am wrong in this, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf and other litter. 4. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paragraphs [168] to [173] discusses 'damage' in general. In this discussion, his Honour specifically noted at [171] that: However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7. 1. Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The 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. 1. There 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 should be made for any intervention with a tree on this basis; and so it is with this matter. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [11] – [14], the Principle was extended to include the cleaning of mould, slime or similar arising from a tree. 2. While there might be a hypothetical possibility, the applicant has not provided any evidence to substantiate his claim that roots of the tree have caused the crack in the floor. As a consequence, no orders will be made for any compensation or rectification of the floor at the respondents' expense. 3. Although the applicant did not provide any evidence of having paid the excess of insurance policy, an order will be made for the respondents to pay the excess within 21 days of the receipt of a tax invoice for that payment. The applicant has 14 days to provide the respondents with that tax invoice otherwise any order for reimbursement lapses. It is assumed that the work to be carried out under the insurance claim includes the damage to the dividing fence. Trees 2-6 – Cypress trees 1. The applicant claims that debris and 'dust' [assumed to be pollen] from these trees blows into his property, particularly onto his barbecue area. Apart from the nuisance this creates and the extent of cleaning it necessitates, he claims that this exacerbates allergies and asthma suffered by members of his family and visitors. He says this is a particular problem on windy days. 2. The application does not include any specific orders for these trees. During the hearing, the applicant stated that all he wants is to have the trees pruned away from his property. Findings 1. The trees do not overhang the applicant's property. No medical evidence has been provided to demonstrate any nexus between the cypress trees and the allergies and asthma suffered by members of the applicant's family. 2. Therefore as no element of s 10(2) is met for these trees, no orders can be made for any interference with them. The findings on debris given for tree 1 apply to these trees. Tree 7 – Mango 1. The applicant seeks orders for the regular maintenance of this tree in order to prevent any future damage. 2. This is a small tree planted about 1.4 m from the common boundary. The branches closest to the dividing fence are very small. There is no evidence of any damage caused by this tree; similarly, it is highly unlikely that it will cause any damage to the applicant's property in the near future. As s 10(2) is not met for this tree, no orders can be made for any intervention with it. Conclusions and orders 1. For the benefit of the applicant, should the circumstances change, another application can be made; however, there must be fresh evidence that was not capable of being produced at the time of the initial hearing. This is discussed in Hinde v Anderson & anor [2009] NSWLEC 1148. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence. All of these cases are available on the Land and Environment Court's website. 2. As a consequence of the foregoing, the Orders of the Court are: 1. The application to remove Tree 1 is refused. 2. The application for compensation is granted in part. 3. Within 30 days of the date of these orders the respondents are to engage and pay for an arborist with a minimum AQF level 3 qualification in arboriculture, and appropriate insurance cover, to carry out the following work on the Eucalyptus haemastoma (Tree 1): 1. Selective removal of the two branches illustrated in the photograph in Annexure 1. The branches are to be removed back to the trunk at the branch collars. 2. Removal of all hanging/ dislodged branches from the canopy of the tree. 3. Removal of all dead wood with a diameter of 40mm or greater at it base from all parts of the tree that overhang the applicant's property inclusive of two metres within the respondents' property. 1. The work in order (3) is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent. 2. The applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and the safe and efficient carrying out of the works in (3). 3. The works in (3)(b) and 3(c) are to be carried out every two years within two weeks either side of the anniversary of the first pruning until such time as the tree is removed. Orders (4) and (5) apply. 4. The applicant is to provide the respondents with a tax invoice for the payment of $750.00 excess insurance within 14 days of the date of these orders otherwise order (8) lapses. 5. The respondents are to reimburse the applicant the sum of $750 within 21 days of the receipt of a tax invoice verifying the payment of the insurance excess. _______________________ Judy Fakes Commissioner of the Court 21057 of 2015 - Annexure 1 (375 KB, jpg) ********** 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: 28 January 2016