Land and Environment Court New South Wales

• Medium Neutral Citation: Lyons v Maybaum & anor [2014] NSWLEC 1055
• Hearing dates: 25 March 2014
• Decision date: 25 March 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

See paragraph [45] of this judgment

• Catchwords: TREES [NEIGHBOURS] Potential damage and injury; bush fire issues
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Rural Fires Act 1997
• Cases Cited: Barker v Kryiakides [2007] NSWLEC 292; Cox v Meiers [2012] NSWLEC 1215; Freeman v Dillon [2012] NSWLEC 1057; 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 J Lyons (Applicant); Mr M Maybaum (First Respondent); Ms Y Downie (Second Respondent)
• Representation: Applicant: Ms J Lyons (Litigant in person); Respondents: Mr M Maybaum and Ms Y Downie (Litigants in person)
• File Number(s): 20001 of 2014

Judgment

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

1 COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by the owner of a property in Bullaburra against the owners of seven trees growing on an adjoining property.

2 The applicant's primary contention is that the respondents' trees constitute an unacceptable fire hazard with the consequence of possible damage to her dwelling or injury to anyone on her property.

3 The applicant is also concerned that Tree 1 - a Cedrus deodara (Himalayan Cedar), may, in strong winds, fall onto her dwelling and that leaves from overhanging branches have damaged the coating on her metal roof and necessitate regular cleaning of the gutters. She states that a branch of the Cedar was, until recently, resting on her electrical service wires thus creating another fire risk.

4 She is similarly concerned that leaf drop from overhanging branches from Tree 2 - a Fraxinus angustifolia 'Raywood' (Claret Ash), blocks gutters and the build up of debris is a fire hazard.

5 In regards to the remaining trees, these are five recently planted and quite small trees. The applicant contends that given their location and potential size, they too will add to the fire risk.

6 As a consequence of these concerns, the applicant is seeking orders for the removal of the Cedar, the pruning of overhanging branches of the Claret Ash and the removal or pruning to 1.8m of the remaining trees. This work is to be at the respondents' expense.

7 The respondents question the applicant's reasons for the application and state that they have had the Cedar and Claret Ash regularly pruned over the last nine years.

The Court's jurisdiction

8 Section 7 of the Act enables an owner or occupier of a property to apply to the Court for an order to remedy, restrain or prevent damage to property on the applicant's land, or to prevent injury to any person, as a consequence of a tree/s to which the Act applies that is/are situated on adjoining land.

9 Under s 10(2) of the Act, 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. This must be applied to each of the trees nominated in the application.

10 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...".

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

12 If any element of s 10(2) is satisfied for any of the trees, the Court's powers to make orders under s9 are engaged. Section 9(1) enables the Court to make such orders as it thinks fit to remedy, restrain or prevent damage to an applicant's property or to prevent injury to any person, as a consequence of a tree the subject of the application concerned. This in turn requires consideration of a number of discretionary matters in s 12 of the Act.

Tree 1 - consideration and findings

13 The respondents engaged Mr Martin Peacock, a consulting arborist, to assess the health and condition of the Cedar. He found the tree to be in good physiological and structural condition with no observable structural defects in the trunk or crown. He found the tree makes a positive contribution to the streetscape.

14 Elsewhere in his report, Mr Peacock discusses measures that could be undertaken to improve solar access to the applicant's solar panels.

15 The issue of solar panels is not raised as a particular basis for the application but is incidentally referred to in the applicant's response to 'steps taken by her to prevent or rectify damage to her property' as well as in attached copies of correspondence between the applicant and the respondents and the applicant and Blue Mountains City Council.

16 In any event, the Trees Act in its current version is incapable of considering the issue of solar access to solar panels.

17 With the arboricultural expertise I bring to the Court, I concur with Mr Peacock's findings. The tree is a very good specimen. There was clear evidence of successive pruning events. The majority of the pruning appears to have been of branches growing over the applicant's property.

18 I saw no signs that would lead me to conclude that the tree is predisposed to failure. Any bias in the canopy is largely a consequence of pruning and competition with other trees. The slight mounding at the base appears normal and consistent with normal distribution of structural roots.

19 There were no branches close to the electrical service wires. The extent of overhang over the applicant's roof was limited.

20 Attachments in Exhibit A indicate that in April 2013, the applicant applied to Blue Mountains City Council for permission to remove the Cedar however this was refused. While the details of the application are not included, the council officer's comments state: No evidence the root plate has cracked house foundations. Solar panels were installed with the full knowledge the neighbours' tree would negatively impact upon the efficiency of the photovoltaic cells."

Leaf litter

21 The applicant contends that the acidic needles from the Cedar have damaged the surface of the metal corrugated roof of her dwelling. I observed slight discolouration in the valleys of the corrugations however I saw no physical damage to the roof. There was some debris in the gutter but no damage caused by any build up of debris was drawn to my attention.

22 I am not satisfied that discolouration of the roof constitutes damage to the applicant's property. However, if I am wrong in this, as a matter of discretion no orders would be made for of discretion I would not make any order for any intervention with the tree on the basis of leaf litter.

23 In Robson v Leischke [2008] NSWLEC 152, Preston CJ at paras 168 to 173 discusses 'damage' in general. In this discussion, his Honour specifically noted (at para 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.

24 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.

25 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 tree.

Potential storm damage/ whole tree failure

26 The application claim form includes many photographs and press clippings of trees in the Blue Mountains that failed in 2011 in strong winds. Some of these failures occurred on lower parts of the applicant's property and others were well-publicised failures of large Radiata Pines elsewhere in the mountains.

27 In regards to tree stability, the applicant contends that the root system [of Tree 1/ pines] dries out the soil and this predisposes the tree to failure.

28 While there is a theoretical possibility that the tree might blow down in a storm [or might catch fire], and potentially cause damage or injury, no evidence has been produced to demonstrate that this is likely to happen to the Cedar in the near or foreseeable future. As discussed in Cox v Meiers [2012] NSWLEC 1215 at [17], the Court can give little if any weight to failures of other trees in unknown circumstances.

29 The applicant provided no scientific/ peer reviewed evidence to support her statement regarding the nexus between the drying of soil and tree failure.

Bushfire hazard and risk

30 The applicant engaged Dr Danny Wotherspoon of Abel Ecology to prepare a statement of evidence considering the request for removal of trees on the basis of bushfire hazard [Exhibit C]. Dr Wotherspoon cites various sections of the Rural Fires Act 1997 (the Fires Act) but does not provide any indication of the classification of the applicant's land in regards to bushfire risk.

31 The site inspection and aerial photographs in the application confirm that the applicant's property is a relatively moderately to steeply sloping block with the dwelling located on the upper part of the slope. The majority of the block is heavily vegetated. A council map in the application claim form identifies the site as comprising ecological buffer areas - riparian corridor and significant vegetation, as well as significant vegetation - Blue Mountains Swamps.

32 Dr Wotherspoon modelled a 'radiant heat calculator output' for the site. He concludes that the Cedar is well within the calculated flame length so that either flame contact or radiant heat would cause the tree to burn. He states, Burning trees are a direct threat to adjacent dwellings by falling burning branches, ember attack or by flame contact. Furthermore a burnt tree may be unstable and fall. He recommends the removal of the Cedar and on behalf of the applicant requests Blue Mountains City Council to order the removal of the tree pursuant to s 66 of the Fires Act.

33 I note that the applicant's timber cottage is located between the likely direction of the fire and the tree.

34 No damage or injury has been caused as a consequence of the tree being subjected to a fire. As stated above, while there is a possibility that the tree may burn and may cause consequential damage or injury, the tree does not otherwise engage any element of s 10(2) of the Trees Act.

35 The fact that the applicant's 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.

36 As I understand from a letter from the Rural Fire Service included in the claim form [Exhibit A, attachment E1], the applicant applied to the RFS for a Bush Fire Harzard Reduction Certificate [the application is not included] however, the RFS was unable to issue the certificate as it found that the proposed activity was not for the purpose of bush fire hazard reduction, and was inconsistent with an existing development consent.

37 If section 10(2) is enagaged, 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."

38 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].

39 On the evidence before me, I am not satsified that s 10(2) is engaged for Tree 1, and the application for its removal is dismissed.

Tree 2

40 This is a healthy tree with no obvious structural defects. It is clear that branches have been removed from the side of the tree closest to the applicant's property. There is one decaying stub which overhangs the applicant's property and which will eventually fall. It is possible that this could in the near future cause damage to the applicant's property and orders will be made for its removal. The stub is approximately 1.5m long and about 4m above ground level.

41 With respect to the other issues raised in regards to this tree - leaf drop and resulting fire hazard, the findings are as for Tree 1. No orders will be made for any additional pruning of this tree.

Trees 3-7

42 The other five trees are all relatively small and recently planted - two Beech trees, one English Oak and two Eucalypts. They are within several metres of the common boundary and therefore relatively close to the applicant's dwelling.

43 The trees are not causing and have not caused any damage to the applicant's property. Given their small size and degree of competition with other larger trees, in my opinion, they are highly unlikely to cause damage in the near future or injury to anyone in the foreseeable future. Therefore as s 10(2) is not satisfied for any of the trees, the Court has no jurisdiction to make any orders for any interference with them.

Conclusions and orders

44 As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can 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.

45 On the evidence before me, the Orders of the Court are:

(1) The application to remove the Cedrus deodara is dismissed.

(2) The application to prune the Claret Ash is upheld in part.

(3) Within 30 days of the date of these orders, the respondents are to remove/ or have removed on their behalf, the dead branch stub identified in paragraph [40] of this judgment. The branch stub is to be removed to the branch collar in accordance with AS4373; 2007 Pruning of Amenity Trees.

(4) In order to give safe and efficient effect to order (3), the applicant must provide reasonable access to the respondents or their contractor on reasonable notice.

(5) The application to remove or prune the remaining five trees is dismissed.

__________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 26 March 2014