Dumont v Kennedy [2016] NSWLEC 1021

Land and Environment Court New South Wales

Medium Neutral Citation: Dumont v Kennedy [2016] NSWLEC 1021 Hearing dates: 29 January 2016 Date of orders: 29 January 2016 Decision date: 29 January 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] : Potential damage to property or injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Hinde v Anderson & anor [2009] NSWLEC 1148 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Ms K Dumant (Applicant) Ms C Kennedy (Respondent) Representation: Applicant: Ms K Dumant (Litigant in person) Respondent: Ms C Kennedy (Litigant in person) File Number(s): 20931 of 2015

Judgment 1. The applicant owns a property in Thornleigh. In the front garden of the adjoining property to the northeast is a copse of trees, many of which are likely to be remnants or seedlings of the original forest. One of these trees is a large, mature Angophora costata (Sydney Red Gum). Other trees include Syncarpia glomulifera (Turpentine), other Angophoras, a Eucalyptus sp. and other native and exotic 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 the Angophora closest to her property – identified as T2 in the diagram in the application claim form. 3. These orders are sought on the basis that: branches may fall from the tree onto her property and cause damage or injury; leaves and other debris, in particular the capsules, create a slip hazard on her sloping driveway; and the leaves and other debris are flammable and therefore pose a fire risk, and therefore require regular removal from her guttering. 4. 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. As the applicant is 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; 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, and evidence or history of past failures, and the circumstances of the site apparent at the time of the hearing. 3. Neither party engaged an arborist to provide independent expert advice. With the arboricultural expertise I bring to the Court I observed the tree to be a healthy mature specimen with no obvious structural defects or any signs of instability. There is evidence of previous pruning which was verified by the parties. There is very little dead wood of any size within the tree. Only a relatively small portion of light canopy overhangs the applicant's driveway. 4. The applicant stated that the tree had not caused any damage but the clearing of debris was usually a daily task. 5. While I am not satisfied that any damage has occurred to the guttering as a consequence of the leaves, or is likely in the near future to occur, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter. 6. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paras 168 to 173 discusses 'damage' in general. In this discussion, his Honour specifically noted (at para 171) that: 171 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. 2. In regards to the fire risk associated with the debris, I note the finding in Freeman v Dillon [2012] NSWLEC 1057 in [86] which states in part: …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. However, if a bushfire damaged the trees and caused part or all of the tree to fail and cause damage to an applicant's property or injury to any person, then this may engage a consideration of s 12(h)(i) and s12 (i)(i), that is "anything, other than the tree, that has contributed, or is contributing, to any such damage/ injury or likelihood of damage/ injury". As discussed by Preston CJ in Robson at [210] this: "would also allow consideration of extraordinary natural events, acts of God, and their contribution to the damage or the likelihood of damage to property or the likelihood of injury to any person". 1. Whilst not disregarding the applicant's concerns, on the evidence before me, I am not satisfied to the extent requires by s 10(2) that any of the tests within that section are met. As a consequence, the Court has no jurisdiction to make any orders for any intervention with the tree. 2. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, should the circumstances change in the time since the Court determined the earlier application and there is fresh evidence, a new application can be made. 3. The Orders of the Court are: 1. The application is dismissed. _________________________ Judy Fakes Commissioner of the Court