Land and Environment Court New South Wales Medium Neutral Citation: Papadopoulos v Chun & anor [2016] NSWLEC 1063 Hearing dates: 23 February 2016 Date of orders: 23 February 2016 Decision date: 23 February 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application granted in part; pruning ordered see [23] Catchwords: TREES [NEIGHBOURS] Potential damage and or injury; debris 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: Mr T Papadopoulos (Applicant) Mr P Chun and Ms C Metcalfe (Respondents) Representation: Applicant: Mr T Papadopoulos (Litigant in person) Respondents: Mr P Chun and Ms C Metcalfe (Litigants in person) File Number(s): 21107 of 2015 Judgment 1. COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Gladesville against the owners of a tree growing on an adjoining property. 2. The applicant is seeking orders for the removal of all branches of a mature Eucalyptus saligna (Sydney Blue Gum) which overhang his property. These orders are sought on the basis of his concerns that part of the tree is hollow and that branches may fall from the tree and damage his property or injure members of his family. He is also concerned that debris falling from the tree accumulates in, and blocks, the gutters and may become a fire hazard. The applicant also states that the roots of the tree are causing damage to the dividing fence. The application claim form includes a request for a sum of $550.00, payable by the respondents, to cover the cleaning of the applicant's gutters. 3. The respondents maintain that since 2010 when they purchased their property, they have had the tree inspected by arborists on at least three occasions and have, with the permission of Hunter's Hill Council, pruned the tree twice in that time. The tree was last pruned in July 2015. They also state in their bundle of evidence (Exhibit 1) that they paid for the replacement of the dividing fence and for an additional green waste bin for the applicant. 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. The applicant is principally concerned about overhanging branches. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paragraphs [56] and [169], states that mere encroachment of a tree onto a neighbour's land is insufficient to engage the Court's jurisdiction to make orders unless any of the elements of s 10(2) are met. 3. 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 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, any evidence of previous failures, and the circumstances of the site apparent at the time of the hearing. 4. As neither party had engaged an arborist to be present at the hearing, the following observations are based on the arboricultural expertise I bring to the Court. 5. The tree is a mature and healthy specimen of Sydney Blue Gum located in the rear garden of the respondents' property, close to the common boundary. I concur with the descriptions of the tree's structure in the arborists' reports in the respondents' evidence. There is a cavity in one of the co-dominant stems which overhangs the applicant's property and which was observed during the hearing to be used as a nesting site for Rainbow Lorikeets. I observed nothing unusual in the shape or form of tissue around the opening of that cavity that would lead me to order the removal of that stem at this stage however it is a part of the tree that should be monitored. 6. There are signs of previous branch failures on other parts of the extensive canopy however there is no evidence that any branch failure has caused any damage to the applicant's property or any injury. Indeed, there is nothing in the application claim form to demonstrate the failure of anything other than small elements of dead wood. 7. There are a number of dead branches in the tree; the percentage of dead wood is consistent with the age and species of the tree and is not unusual but its eventual falling from the tree is inevitable and predictable. Although the respondents had an arborist undertake some pruning work in July 2015, the arborist appears to have concentrated on removing green branches over the parties' dwellings and not on removing the majority of the dead wood elsewhere in the canopy. 8. In regards to the alleged damage, the fence is new and in good order and there is nothing to suggest that the tree is likely in the near future to cause any damage to it. 9. The guttering at the rear of the applicant's dwelling has plants growing in it. This would indicate to me that no maintenance has been carried out for some time. 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. 10. In Robson v Leischke, Preston CJ at paragraphs [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. As stated above, the vegetation growing in the applicant's guttering indicates that no maintenance has occurred for some time. No orders will be made for any compensation for clearing the gutters. 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. On the basis of my observations, I am satisfied that the predictable failure of dead wood from the tree could cause damage to property on the applicant's land and could potentially cause injury to anyone on either property; therefore I am satisfied that s 10(2) is met and that the Court's jurisdiction to consider what, if any, orders should be made, is engaged. 2. In determining the matter, I am required to consider relevant aspects of s 12. The material from Hunter's Hill Council contained in the respondents' bundle, indicates that the council values the tree as a significant remnant of the original Coastal Sandstone Foreshore Forest community. The tree is protected under Hunter's Hill Council's development controls. It is clear from its use as a nesting site that the tree contributes to biodiversity and to the local ecosystem. Its size makes it clearly visible from the public domain and it contributes to private and public amenity (s 12(b)(b3)(d)(e)(f)). 3. The respondents have taken steps to maintain the tree and to placate the applicant (s 12(h)(i)). 4. The removal of dead wood will not adversely affect the health of the tree as long as the work is carried out in accordance with the Australian Standard for the Pruning of Amenity Trees (s 12(b2)). 5. Having considered the evidence, I am satisfied that only the removal of dead wood is warranted at this stage. However, should the circumstances change and there is fresh evidence, a second application can be made (see Hinde v Anderson & anor [2009] NSWLEC 1148). 6. Therefore, the Orders of the Court are: 1. The application is granted in part. 2. The respondents are to engage and pay for an arborist with a minimum AQF level 3 qualification in Arboriculture, and appropriate insurance cover, to remove all dead wood >40mm in diameter at its base from all parts of the tree's canopy. 3. The work in order (2) is to be completed by 30 April 2016. 4. The work in (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. 5. 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 order (2). 6. The works in (2) are to be carried out every 18 months from the date of the first scheduled pruning in 2016 until such time as the tree is removed. [The second scheduled pruning will be by 30 October 2017, and so on.] Orders (4) and (5) 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: 23 February 2016