Land and Environment Court New South Wales Medium Neutral Citation: Reid v McRae & anor [2016] NSWLEC 1253 Hearing dates: 21 June 2016 Date of orders: 21 June 2016 Decision date: 21 June 2016 Jurisdiction: Class 2 Before: Fakes C Decision: See paragraph [21] Catchwords: TREES [NEIGHBOURS]: Damage, potential injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Rural Fires Act 1997 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 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: Jenni Reid (Applicant) Murray McRae and Jennifer Leathem (Respondents) Representation: Applicant: Ms J Reid (Litigant in person) Respondents: Mr M Bull (Agent) File Number(s): 150638 of 2016 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: 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 three trees growing on an adjoining property. The applicant also seeks payment of her insurance policy excess and reimbursement for the cost of the application filing fee. 2. In regards to the last element of her claim, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 3. The applicant purchased her Wyoming property in January 2016. Shortly after, a branch from one of the respondents' trees fell and damaged the roof of her dwelling and the water meter and brought down the electricity service line to her dwelling. The damage to the roof was confirmed and assessed by her insurer. 4. The applicant is concerned that branches may continue to fall and cause further damage to property on her land or injury to anyone on it. She is also concerned about the risk of fire as well as the build-up of leaf litter on her roof and resulting dampness inside her house. Apart from the potential for further branch failures, the applicant considers that vines on the trees may 'strangle' the trees predisposing them to failure. The applicant also contends that at least two of the trees have termites. The applicant states that several nearby trees came down in the April 2016 storms and brought down power lines. 5. The respondents do not wish to remove the trees. 6. 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. This must be applied to each tree the subject of an application. 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. 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. 3. Neither party engaged an arborist to provide independent expert opinion. The following observations are based on the arboricultural expertise I bring to the Court. 4. The trees are located near the eastern boundary of the respondents' property, within metres of the common boundary. Parts of the canopies overhang part of the applicant's land. The sketch plan in the application claim form shows the trees numbered from north to south. Tree 1 (T1) is a mature Eucalyptus pilularis (Blackbutt), Tree 2 is a mature E. saligna (Sydney Blue Gum) and T3 is another mature Blackbutt. The trees are healthy and have a forest habit typical of the species and their forest location. The trees step down the slope. 5. The parties' properties appear to be part of a small subdivision carved into the surrounding forest. Upslope is a heavily vegetated ridge; downslope is a rainforest gully. The vegetation type can be described as tall open forest or North Coast Wet Sclerophyll Forest. The trees are probably 25-30m tall. 6. I used binoculars to view the upper parts of the canopies. I observed the trees to be healthy specimens with a normal quantity of dead wood. I saw no obvious structural defects. There is an old wound at the base of tree 2 which is almost occluded. There are some native vines in the trees. The site of the failed section of branch in T3 is clear however I saw no evidence of other similar failures. There are small hung-up branches ('hangers') in T3. I saw no signs of instability in any of the trees or surrounding soil. 7. On the basis of the evidence, I am satisfied that a branch from T3 caused damage to the applicant's dwelling. I am also satisfied that the predictable failure of dead wood could potentially cause damage to the applicant's property or, although the risk is low, could cause injury should anyone be present when it fell. Therefore, I am satisfied to the extent required by s 10(2) that the Court's powers to make orders under s 9 of the Act are engaged. Before doing so, I must consider relevant matters under s 12 of the Act. Discretionary matters in s 12 are discussed below. * The trees range from about 1m to 4m from the common boundary (s 12(a)). * The removal of dead wood and the damaged branch on T3, if carried out in accordance with AS4373 – 2007: Pruning of Amenity Trees, will have no detrimental impact on the health of the trees (s 12(b2)). * The trees are locally indigenous and part of the natural forest and therefore will contribute to the local ecosystem and to biodiversity (s 12(d)). * The trees contribute to the amenity of the land on which they are growing and to the natural landscape (s 12(b3)(e)(f)). * The trees are likely to have a role in stabilising the soil as they are growing on sloping land in proximity of a watercourse (s 12(g)). * The trees were clearly present when the applicant purchased her property 6 months ago. It should be reasonable to assume some due diligence was undertaken prior to purchase and that there was a clear understanding of what living in a heavily treed environment may entail (s 12(j)). 1. Having considered the evidence and submissions, and having viewed the trees, I make the following findings. 2. There is nothing to suggest that the removal of any of the three trees is warranted. However, because of the predictable nature of the failure of dead wood, orders will be made for the biennial removal of it and the removal of the failed branch stub. I am also satisfied that the respondents should reimburse the applicant the excess payable on her insurance policy. I note that the repairs have not yet been carried out. 3. In regards to fire, while the 10/50 Vegetation Clearing Code of Practice in s 100Q Rural Fires Act 1997 may apply to the site, the respondents have not availed themselves of tree removal that may be permitted under that legislation. Any perceived fire risk is not of relevance to this application. 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. Concerning the build-up of leaf litter, there is no evidence of actual damage caused by it that could not have been avoided by regular and routine maintenance. If I am wrong in this, and as a matter of discretion, no orders would be made for intervention with any of the trees on this basis. 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: 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. Given the applicant's choice to buy a property, effectively in the bush and surrounded by trees, leaf litter is to be expected. 2. There is no independent expert evidence of termites and in any event, the Trees Act does not apply to termites and other organisms that may feed from or reside in trees. In Robson v Leischke Preston CJ at [189] noted that the cause must be the tree itself and that the mere fact that the tree might provide habitat to animals or insects which cause damage does not mean such damage is "as a consequence of" the tree. His Honour said: 189 Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601. Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's property: Dooley v Newell [2007] NSWLEC 715 at [22]-[23]. Orders 1. As a consequence of the forgoing, the Orders of the Court are: 1. The application to remove the trees is dismissed. 2. The respondents are to engage and pay for an arborist with a minimum qualification in arboriculture of AQF level 3, and with appropriate insurance cover, to remove all deadwood down to 40mm diameter at its base from all parts of the three Eucalypts identified in the application claim form which overhang the applicant's property and within 3m of the common boundary or to the trunk, whichever is greatest. The work is to include the removal of the failed first branch on T3 (tree closest to the road) back to the trunk. Any constricting vines and hung-up branches are to be removed from all trees. 3. The work in (2) is to be completed by 29 July 2016. 4. The work in (2) is to be carried out in accordance with AS4373-2009 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. 5. Should it be required, the applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and carrying out the works in (2). 6. The works in (2) are to be carried out every two years within the months of June or July and paid for by the respondents. Orders (4) and (5) apply. 7. The respondents are to reimburse the applicant the sum of $750.00 which is the excess on her insurance policy within 21 days of the receipt of a tax invoice proving payment of the excess. ________________________________ 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: 21 June 2016