Land and Environment Court New South Wales

• Medium Neutral Citation: Agnese v Ward [2013] NSWLEC 1152
• Hearing dates: 13 August 2013
• Decision date: 13 August 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; tree not on adjoining land
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148; Kiefel v Pendergast [2013] NSWLEC 1126; McCallum v Riodan & anor [2011] NSWLEC 1009; Murray v Shoebridge [2007] NSWLEC 785; P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Yang v Scerri [2007] NSWLEC 592; Zangari v Miller (No 2) [2010] NSWLEC 1093
• Category: Principal judgment
• Parties: Mr R Agnese (Applicant); Mr D Ward (Respondent)
• Representation: Applicant: Ms G Agnese (Agent); Respondent: Mr D Ward (Litigant in person)
• File Number(s): 20374 of 2013

Judgment

1 COMMISSIONER: The applicant in these proceedings is seeking orders for the pruning of a Eucalyptus tree back to the respondent's fence line. The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

2 The tree is a mature Eucalyptus scoparia growing at the rear of the respondent's property in Seaforth. The applicant is concerned that the tree, or parts of it, could cause damage to his property or could cause injury to his children.

3 Section 7 of the Act enables the making of an application to the Court by an affected landowner. It states:

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land. [emphasis added]

4 Both the applicant's diagram in the claim form, and a cadastral plan tendered by the respondent, show the parties' properties are separated by a narrow extension of the property which adjoins that of the respondent's (No. 27) to the south (No. 23). The extension of No.23 runs between a number of properties to the east and west, including between the applicant's land and the respondent's land.

5 I was informed that the 2.5m wide strip of land is not an easement for any public purpose but is private property. While the Court has considered properties separated by a public road (P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128), by a public walkway (Murray v Shoebridge [2007] NSWLEC 785) and by a council-owned easement (Kiefel v Pendergast [2013] NSWLEC 1126) to be adjoining, it has not as yet considered properties separated by land in private ownership for private use.

6 Therefore, I am not satisfied that the tree is situated on adjoining land and therefore the Court has no jurisdiction to consider the matter.

7 However, if I am wrong in this, I have further considered the application in regards to the key jurisdictional tests in s 10(2) of the Act. This states that the Court must not make an order under this Part unless it is satisfied that the tree has caused, is causing, or could in the near future cause, damage to property or could cause injury to any person.

8 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...".

9 The tree was inspected from the respondent's property and then from the applicant's property. The respondent stated that he quite regularly has the tree inspected and maintained by an arborist; supporting material was tendered in evidence.

10 The applicant's agent (his wife) stated that while no damage or injury had yet been caused by the tree, she was worried that something might happen.

11 In the absence of any independent arboricultural expert engaged by either party, and with the expertise I bring to the Court, I observed the tree to be healthy and free of obvious structural defects. There was a small broken branch caught in the canopy however, in my opinion this is highly unlikely to cause injury to any person and even more unlikely to cause damage to the applicant's property. Only the tips of a few leaves overhung the applicant's property.

12 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 the circumstances of the site apparent at the time of the hearing.

13 In my opinion, any potential damage to the applicant's property or injury to any person, in particular anyone on the applicant's property, is in the realm of very remote hypothetical possibility. I am therefore not satisfied to the extent required by s 10(2) that the Court's jurisdiction to make orders is engaged.

14 As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.

15 Therefore, the Orders of the Court are:

(1) The application is dismissed.

_________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 14 August 2013