Land and Environment Court New South Wales

• Medium Neutral Citation: Borg-Musin & anor v McInnes [2014] NSWLEC 1052
• Hearing dates: 24 March 2014
• Decision date: 24 March 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Damage to property; injury; potential storm damage
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Rural Fires Act 1997
• Cases Cited: Awad v Hardie (No. 3) [2012] NSWLEC 1067; Freeman v Dillon [2012] NSWLEC 1057; Ghazal v Vella (No. 2) [2011] NSWLEC 1340; Hinde v Anderson & anor [2009] NSWLEC 1148; McCallum v Riodan & anor [2011] NSWLEC 1009; Robson v Leischke [2008] NSWLEC 152; 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: Ms C Borg-Musin and Mr C Musin (Applicants); Mr D McInnes (Respondent)
• Representation: Applicants: Ms C Borg-Musin and Mr C Musin (Litigants in person); Respondent: Ms M Brodzik (Agent)
• File Number(s): 20905 of 2013

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: The applicants in these proceedings are concerned that a tree growing on an adjoining property in Bawley Point may, in strong winds or through some other 'act of God', fall onto their house and cause serious damage and or injury.

2 They have applied under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), for orders seeking the removal of the tree at the respondent's expense.

3 Apart from their concerns about whole tree failure, the applicants are also concerned that the tree is a fire hazard as their property is located within a bushfire zone. They also contend that branches have fallen from the tree and damaged the roof of a vehicle parked beneath it.

4 The applicants' concerns appear to be based on verbal comments made by a council tree contractor and a local logger. The applicants were told words to the effect of "Lady, if I was you I would ask my neighbour to cut that tree down."

5 In applications under Part 2 of the Act, the key jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

6 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...".

7 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 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, any relevant evidence and the circumstances of the site apparent at the time of the hearing.

8 As neither party engaged an arborist to provide independent expert evidence, the following observations are based on the arboricultural expertise I bring to the Court.

9 The tree is an early mature Southern Blue gum (probably Eucalyptus bicostata) of moderate dimensions, growing close to the common boundary between the parties' properties. The tree is located between the parties' driveways and partly overhang's the applicants' property.

10 The tree appears to be in average health with a relatively small percentage of small diameter dead wood throughout the canopy. The percentage is well within normal and expected limits. While the second applicant contends that the tree is exhibiting symptoms of "heat stress" on its trunk, I saw nothing abnormal about the tree that would lead me to concur with his opinion.

11 The applicants are concerned that the tree leans towards their house. Although there is a slight lean, in my opinion the lean is within a normal range and I saw no signs of instability in the tree or the surrounding soil that would indicate a predisposition to whole tree failure.

12 In regards to the alleged damage to the roof of the applicants' car, no evidence was produced to confirm this. The applicants did not inform the respondent of the incident. They now choose to park their car elsewhere.

13 In putting the applicants' case and their word at their highest, damage to the roof of a car as a consequence of dead wood falling from the tree is sufficient to satisfy s 10(2) and engage the Court's jurisdiction to make orders under s 9 of the Act.

14 Section 9(1) enables the Court to make any orders it thinks fit to remedy, restrain or prevent damage to an applicant's property or injury to any person. This requires consideration of relevant matters under s 12.

Consideration

15 The tree is close to the boundary and partly overhangs part of the applicants' driveway. It is located close to the street frontage in an unfenced setting (s 12(a)). It reads as part of the overall streetscape and therefore provides amenity to the respondent's property and to the public (s 12(b3)(e)(f)).

16 The applicants state that Shoalhaven City Council Tree Preservation Order [uniquely] allows removal of a tree if "any part of it is above a line 45° from the vertical extension of the wall of any building measured from its base; or Tree Works within six (6) metres of an approved dwelling" without obtaining permission from the council. Presumably this applies to an owner of a property, or at least requires an owner's consent if the request is from a neighbour (s12(b)). The roles of a council and the Court are discussed in Ghazal v Vella (No. 2) [2011] NSWLEC 1340. In this matter it appears that, as is his right, the respondent has not elected to undertake works that may be permitted under council's controls.

17 As stated above, the extent of dead wood is relatively minor and of a small diameter. While removing the dead wood would not have any detrimental impact on the tree (s 12(b2)), in my view the degree of risk is small and does not warrant an order of the Court for its removal or indeed, the removal of the entire tree. In my view, the removal of the tree would be significantly disproportionate to the risk posed by the tree.

18 The applicants' main concern is possible whole tree failure in a storm. Sections 12(h)(i) and 12(i)(i) allow the Court to consider anything other than the tree that is contributing to any damage/injury or likelihood of damage/injury. In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [210] states that these subclauses "would allow the consideration of extraordinary 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." However, no evidence has been adduced to demonstrate, on the balance of probability, that the event the applicants fear is likely to be realised in the near or foreseeable future.

19 In my view this applies to the applicants' concerns about fire. The fact that the applicants' property may be in a "bush fire zone" does not automatically engage the Court's jurisdiction to make orders for the removal of a tree. In its current form, the Trees Act makes no specific reference to the Rural Fires Act 1997 however s 6 of the Trees Act does refer to the effect of orders made under the Trees Act and their relationship to activities prohibited/ requiring consent under other legislation.

20 The risk of fire damage to an applicant's property as a consequence of the flammable nature of trees is also discussed in Freeman v Dillon [2012] NSWLEC 1057 at [86].

Conclusions and orders

21 I find there is insufficient evidence to warrant Court orders for any intervention with the tree. However 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, Awad v Hardie (No. 3) [2012] NSWLEC 1067 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.

22 Therefore, the Orders of the Court are:

(1) The application to remove the tree is dismissed.

_______________________

Judy Fakes

Commissioner of the Court

Decision last updated: 26 March 2014