Land and Environment Court New South Wales Medium Neutral Citation: McPherson & anor V Lake & anor [2017] NSWLEC 1081 Hearing dates: 21 February 2017 Date of orders: 21 February 2017 Decision date: 21 February 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage, injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 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: Robins and Beverley McPherson (Applicants) Simon and Melissa Lake (Respondents) Representation: Applicants: R & B McPherson (Litigants in person) Respondents: S Lake (Litigant in person) File Number(s): 357092 of 2016 Publication restriction: No JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: Mr and Mrs McPherson, the applicants, have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of four trees growing along the common boundary on Mr and Mrs Lake's (the respondents) property. In the alternative they request that the trees be pruned. 2. Some thirteen years ago the McPhersons purchased their Cootamundra property. A year later the Lakes purchased the adjoining large lot. According to Mr Lake, there were many trees growing along the common boundary and elsewhere on the property and a substantial number have been removed. 3. The four trees about which this Class 2 application has been made are: * T1 – a mature Eucalypt growing near the north-western corner of the respondents' property; * T2 – a stump which is covered in ivy. The ivy has become tree-like in its adult form; * T3 – a mature Cootamundra Wattle; and * T4 – a large and mature Pinus radiata. 1. Whilst they acknowledge that the trees have not yet caused any damage or injury, the McPhersons are particularly concerned that the Eucalypt and the Pine will inevitably fall onto their property in a storm and thus cause substantial damage to it and serious injury to anyone who may be on their property at the time. They are also concerned about the debris that falls onto their property from all of the trees. 2. In regards to the ivy, the McPhersons maintain that Mr Lake has allowed it to grow under the metal dividing fence and onto their property. They argue that it has in the past caused separation of the metal panels but these have since been repaired. 3. The main concern about the wattle is falling of debris onto the water tank located adjacent to the tree and onto the paving. 4. Mr Lake's uncontested position is that he takes the safety of his trees seriously and has an arborist inspect the trees on an annual basis. He says that anything the arborist is concerned about is removed. Mr Lake stated that he had pruned the ivy and wattle away from the fence and that he routinely removes the ivy from below the fence. Mr Lake also mentioned that he had the arborist remove a lateral branch from the Eucalypt that was growing over the McPherson's property and, in recognition of the McPhersons' concerns, he had also recently removed an overhanging branch from another Pine. 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 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. 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, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing. 3. Neither party engaged an arborist to provide independent expert evidence. The following observations and comments are based on the arboricultural expertise I bring to the Court. 4. The Eucalypt is a mature specimen in average health and condition. The amount of dead wood in the tree is within the normal range and mostly comprises very small diameter dead twigs. While part of the tree has been lopped in the past, I saw nothing in the canopy that would lead to me to conclude that any significant failure is likely. Only a relatively small portion of the tree overhangs the applicants' property. Similarly, while whole tree failure is a hypothetical possibility, I saw no evidence of instability in the tree or any signs in the surrounding ground that would indicate that this is likely to happen in the near or foreseeable future. I am not satisfied that any of the tests in s 10(2) are met for this tree and thus the Court has no jurisdiction to make any orders for any intervention with it. 5. Ivy, as a vine, is a tree for the purpose of the Trees Act. I note that is has been cut back from the fence on the respondents' side and, at the time of the hearing, was not growing on the applicants' property. There was no obvious damage to the metal fence which, I was informed, was present when the parties purchased their properties. Indeed, the fence appears in excellent condition. Having found no evidence of past, present or likely future damage, s 10(2)(a) is not met and no orders can be made with respect to the ivy. 6. In regards to the wattle, this is a healthy specimen that has been pruned away from the McPherson property. I observed a co-dominant stem with included bark but as this is on the respondents' side of the tree, should it fail, it will not cause any damage to the dividing fence or the McPherson property. The stem is not of a size that is likely to cause injury to anyone on the Lake property but as they regularly engage an arborist, this is a condition that may have been noted already. 7. While I am not satisfied that any damage has occurred to the McPherson property as a consequence of the debris from the wattle (or any other tree), 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 wattle on the basis of leaf litter. 8. 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 [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. The Pine is reportedly one of many that once provided a windbreak for the tennis courts that used to be located on the Lake property. The tree in question is a large but very healthy specimen. I saw no defects or any other signs or symptoms in the tree or its surroundings that would lead me to conclude that what the McPhersons fear is likely to be realised. As for the other trees, I am not satisfied, on the evidence before me, that any of the tests in s 10(2) are met. 3. As a consequence, the Orders of the Court are: 1. The application is dismissed. _________________________ Judy Fakes Acting Commissioner of the Court Amendments 23 February 2017 - File number amended. 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 2017