Land and Environment Court New South Wales Medium Neutral Citation: Tripolone & anor v Baddeley & anor [2016] NSWLEC 1058 Hearing dates: 17 February 2016 Date of orders: 17 February 2016 Decision date: 17 February 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application granted in part – see [20] Catchwords: TREES [NEIGHBOURS] Damage and injury; removal refused, pruning ordered Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Ghazal v Vella (No. 2) [2011] NSWLEC 1340 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: Joe and Anita Tripolone (Applicants) Stephen and Alba Baddeley (Respondents) Representation: Applicants: Mark Warren (Solicitor) Respondents: Mr S Baddeley (Litigant in person) Solicitors: Applicants: Collins & Thompson File Number(s): 21151 of 2015 Judgment 1. COMMISSIONER: In the late 1980s and early 1990s the parties in this matter purchased their properties in Cherrybrook. On the respondents' land were a number of eucalypts. In approving a development application for the construction of the respondents' dwelling, Hornsby Council allowed the removal of several of the trees but required the retention of an established Eucalyptus pilularis (Blackbutt) growing near their south-eastern boundary. Part of the applicants' north-western boundary adjoins the respondents' property and the tree. 2. The applicants have applied under s 7, Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the Blackbutt, or in the alternative, pruning of all branches overhanging their property and the annual inspection/maintenance of the tree. 3. The orders are sought on the basis that branches falling from the tree have caused damage to their property. The applicants are concerned that branches and debris will continue to fall thus posing a risk of future damage to their property and possible injury to themselves or their pet dog. 4. The respondents have applied to Hornsby Council on several occasions for permission to remove the tree. Council refused removal but allowed pruning by up to 15% of the canopy. Pruning was carried out in 2005, 2006 and 2010. The respondents contend that, on the advice of a consulting arborist, the tree is healthy and structurally sound. The respondents maintain that the applicants extended their dwelling and placed it beneath the canopy and therefore any removal of overhanging branches should be at the applicants' expense. 5. 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 applicants are concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is generally 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/s, history of previous failures, and the circumstances of the site apparent at the time of the hearing. 3. Neither party engaged an arborist to provide expert evidence. With the arboricultural expertise I bring to the Court, with the assistance of binoculars from a number of vantage points, in particular from the street outside the applicants' property, I observed the tree to be a healthy, mature specimen with no significant structural defects. Branch attachment appeared normal and sound. I observed a small cavity in the trunk being used as a nesting site by Rainbow Lorikeets; there was nothing about the shape of the surrounding tissue that appeared unusual. The tree contains a normal amount of dead wood consistent with its age and growth habit. 4. The application claim form includes a number of photographs of branches which have fallen from the tree onto the applicants' property. One green branch fell through the clothesline and onto the edge of the dwelling; other photographs show dead branches, broken roof tiles/ ridge capping, damage to a cushion, and debris on the ground and roof. The applicants state that apart from damage to the roof, a garden shed and the clothesline, falling branches have punctured outdoor furniture and the lining of the swimming pool. They are also concerned that leaf litter accumulates in the gutters and valleys of the roof and could dam any water falling onto it leading to backwash under the tiles. The applicants also mention bird droppings splattering clothes and paving as well as the risk of fire. 5. Apart from physical damage to their property, the applicants are also concerned that limbs may fall onto a member of the family or the dog and thus cause injury. They state that they are unable to fully enjoy their back garden or pool through fear of falling branches. 6. Having viewed the tree and on the basis of the applicants' photographs, I am satisfied that branches falling from the respondents' tree have caused damage to the applicants' property. Although the percentage of dead wood in the tree is not high, there is some dead wood overhanging the applicants' property; the eventual failure of dead branches is inevitable. Therefore, I am also satisfied that future damage, or even injury, could occur as a consequence of the predictable failure of these dead branches. As a consequence, s 10(2) is satisfied and the Court's jurisdiction to consider what, if any, orders should be made pursuant to s 9 of the Act, is engaged. 7. Before determining the matter, I am required to consider relevant matters under s 12 of the Act. The following sub-clauses are relevant: * The tree is located wholly on the respondents' land within a couple of metres of the common boundary (s 12(a)). * Council's Tree Management Officer attended the hearing. He advised the Court that the tree, as a locally indigenous species, is protected by Hornsby Council's Tree Preservation Order (TPO) however a tree owner may remove up to 10% of the canopy without applying to council for a permit (s 12(b)). As stated elsewhere, council has refused permission to remove the tree. * The applicants have requested pruning to the fence line. With the expertise I bring to the Court, this would remove a sizeable portion of healthy branches and create large wounds. The removal of dead wood will have no adverse impact on the tree as long as the work is carried out in accordance with AS4373:2007 (s 12(b2)). * The tree is likely to be a remnant of the original tall forest and will therefore contribute to the local ecosystem and to biodiversity. As previously stated, the tree provides habitat for birds. There are other mature trees nearby and the tree is likely to provide connectivity for wildlife (s 12(d)). * The tree is visible from the public domain and contributes to the landscape character of the area (s 12(e)(f)). * When the parties purchased their land the tree, although smaller, would have been well-established and a reasonable size. Although the applicants chose to extend their dwelling and bought it closer to the tree, it would appear from the site's topography that options were somewhat limited. The respondents stated on site that they have agreed with their insurance company to implement a regular program of tree maintenance with inspections every six months to be carried out by a consulting arborist. They have carried out pruning work on at least three occasions (s 12(h) & (i)). 1. Having considered the parties' positions I find there is no arboricultural basis for ordering either the removal of the tree or a significant portion of the canopy back to the boundary fence. While stability is unlikely to be affected, the removal of healthy foliage is unwarranted. The respondents mentioned that some arborists who have attended the site have stated that no work needs to be done to the tree. I disagree; there is dead wood present which will fall at some stage and could cause damage or injury, and orders will be made for its removal. I note that the tree has not been pruned since 2010. There is not a large amount of dead wood in the tree. I consider an interval of two years to be an appropriate Court-ordered pruning program. However, nothing would prevent the respondents from exercising their rights, as tree owners, under the provisions of Hornsby Council's TPO, to remove more foliage or branches on an annual basis should their arborist advise them to do so. [The roles of the Council and the Court are discussed in Ghazal v Vella (No. 2) [2011] NSWLEC 1340.] 2. While I am not satisfied that any damage has occurred to the guttering or valleys 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. 3. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at [168] to [173] discusses 'damage' in general. In this discussion, his Honour specifically noted (at [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. Cherrybrook is a suburb carved into a forest and mature trees are a feature of the landscape. 2. In regards to bird droppings and the risk of fire, in Robson v Leischke at [189] Preston CJ notes that the Trees Act requires the tree to be the/a cause of the damage or injury and this therefore excludes damage or injury arising from animals which may live in or on the tree. Similarly, the risk of fire damage to an applicant's property as a consequence of the flammable nature of trees is discussed in Freeman v Dillon [2012] NSWLEC 1057 at [86]. 3. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, if the circumstances change and there is fresh evidence, a fresh application can be made. Orders 1. As a consequence of my findings, the Orders of the Court are: 1. The application to remove the tree is dismissed. 2. By 30 March 2016 the respondents are to engage and pay for an arborist with a minimum AQF level 3 qualification in Arboriculture, and with appropriate insurance cover, to remove all dead wood with a diameter of 40mm or more at its base from all branches overhanging the applicants' property inclusive of a distance of 3m from the dividing fence inside the respondents' property. 3. The work in order (2) 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. 4. The applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and or the safe and efficient carrying out of the works in (2). 5. The works in (2) are to be carried out every two years in the month of March until such time as the tree is removed. Orders (3) and (4) apply. ___________________________ Judy Fakes 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: 17 February 2016