Land and Environment Court New South Wales

• Medium Neutral Citation: Sell v Newfield [2011] NSWLEC 1367
• Hearing dates: 2 December 2011
• Decision date: 02 December 2011
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

The application is dismissed

• Catchwords: TREES [NEIGHBOURS] Damage to property; Leaf tannin stain is not damage caused by a tree; Mere encroachment is not damage caused by a tree
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakidis [2007] NSWLEC 292; Yang v Scerri [2007] NSWLEC 592; Robson v Leischke [2008] NSWLEC 152
• Category: Principal judgment
• Parties: K and J Sell (Applicants); P and A Newfield (Respondents)
• Representation: K and J Sell (Applicants in person); P and A Newfield (Respondents in person)
• File Number(s): 20844 of 2011

Judgment

This determination was given extemporaneously and has been edited prior to publication.

1 Mr and Mrs Sell, the owners of a property in Loftus Street Pennant Hills, have applied for orders under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning three trees growing on an adjoining property belonging to Mr and Mrs Newfield.

2 Mr and Mrs Sell seek orders requiring the Newfields to prune three trees that partly overhang their house and clothesline. They say that tannin from the leaves of one of the trees has stained their roof tiles and that the tree might shed a branch and damage their roof. They say that branches of a second tree are growing toward their house and that it might cause damage in the future. They say a third tree has lost branches in the past twelve months and that a branch that overhangs their clothesline might fall and damage the line and the fence.

Relevant background to the matter

3 During 1992 the Newfields planted a Lemon Scented Gum ( Corymbia citriodora ) in their back garden about 1.8 m from the northern boundary fence with the neighbouring property. At that time the house on the neighbouring property stood more than 8 m from the tree. For the purposes of this judgement I will refer to this tree as T3.

4 During 1998 the Newfields planted two more trees, more or less in line with tree T3 and parallel with the side fence. I will refer to these trees as T1 and T2. T1 is a Sydney Redgum, ( Angophora costata ) and T2 is another Lemon Scented Gum.

5 At some time in 2007 Mr and Mrs Sell moved their clothesline a few metres to the north and adjacent to tree T3. In 2009 they began renovating and extending their house and they also installed a swimming pool in the rear garden. The house extensions brought the house to within 1 m of the boundary and about 2.2 m from tree T1. Mr Sell says that just prior to the renovations he spoke to Mrs Newfield of his concern at the impending close proximity of tree T1 that he said would soon overhang his roof. He says he told her that the tree could be removed without the need for Council approval, as it would be less than 3 m from his building. Mr Sell says that Mrs Newfield suggested that he remove a few fence panels and fell the tree for her. Mrs Newfield disputes this. She says that she agreed to help by removing a section of fence in order to assist Mr Sell to cut some branches before his renovations began. She says she would not have entertained the thought of allowing Mr Sell to fell a tree on her property.

6 Over the course of 2008 and 2009 Mr Sell initiated a number of discussions with Mr and Mrs Newfield about trees and leaves and he also sent a number of letters to them concerning variously, branch failures, leaf fall, and overhanging vegetation from their trees.

The trees

7 Tree T1 is a healthy 12 m high Sydney Redgum. The main stem forks at ground level, forming two stems each about 300 mm in diameter. One of the stems forks again at about 8 m above the ground, forming a relatively narrow junction of small overall dimensions. The union does not show any signs of adaptive growth that might indicate a potential weakness or defect. I saw no evidence that might indicate a potential for branch or trunk failure in the near future. Although a few of the northerly oriented branches do overhang the Sell's tile roof, none of the branches on this tree exceeds 60 mm in base diameter.

8 Tree T2 is a 12 m high Lemon Scented Gum that slightly overhangs a grassed area to the southern side of Mr and Mrs Sell's rear garden. This tree is situated slightly more than 1 m from the boundary fence. I saw no evidence that might indicate a potential for failure of any part of this tree.

9 Tree T3 is a Lemon Scented Gum of about 14 to 16 m height. On the northern side of the tree facing the Sell's land, there are a few small diameter branch scars and branch stubs. Mr and Mrs Newfield say that one of the branch stubs is from the loss of a branch in July 2009 that occurred when they were absent from their property. Their submission in evidence contains photographs showing what they say are abrasions on the failed branch that they suspect were caused by rope burns implying that the branch was removed rather than failed.

The Court's jurisdiction must be determined

10 Under s 10(2) of the Act, 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 applicants' property, or

(b) Is likely to cause injury to any person.

The matters in contention and the findings

11 With respect to tree T1, the Sells contend that tannin from the leaves the tree is staining their roof tiles. They also contend that a branch from this tree recently fell into their garden. Dealing firstly with that branch as it was evident on the ground at the time of the hearing, I noted that it was less than 1 m in overall length and the widest part of the stem was about 25 mm in diameter. Mr Sell contends that the failure of such a branch could cause damage in the future. I find Mr Sell's fears unfounded, as that branch is so small that it could not possibly cause damage and none of the branches on tree T1 are of a size that might cause damage if they fell. I find no evidence to indicate the likelihood of branches falling in the near future, that being a period of twelve months, being the rule of thumb adopted from Yang v Scerri [2007] NSWLEC 592.

12 Secondly, on the matter of the staining of the roof tiles, I am not satisfied that the largely indistinct staining is damage caused by a tree. Even if the staining is as Mr Sell contends, the product of tannin from fallen leaves, and there is no evidence to show that it is, I find no compelling reason to depart from the Tree Dispute Principle published by the Court concerning leaves, fruit and the like shed from trees. In Barker v Kyriakides [2007] NSWLEC 292 and the subsequent tree dispute principle, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree.

13 As a consequence of the above I find the jurisdictional test under s10(2)(a) is not met and the the Court's jurisdiction is not enlivened and no orders can be made in respect of tree T1.

14 Tree T2 is a healthy single stemmed tree of about 300 mm trunk diameter and about 12 to 14 m height. The stem forks at about 9 m above ground. The branch union at the fork appeared sound as I saw nothing to indicate weakness in that union, nor in any of the other branch unions that I could readily see. As a result I am not satisfied that tree T2 is likely in the near future to cause damage. As a consequence I find the jurisdictional test under s 10(2)(a) is not met and therefore the Court's jurisdiction is not enlivened and no orders can be made in respect of tree T2.

15 Tree T3 is the larger of the three trees. At ground level the stem is about 400 mm in diameter. The tree appeared healthy and the branch unions showed no signs of weakness or defect. This still immature and healthy Lemon Scented Gum has lost two branches in recent years and the parties disagree as to the cause of these failures.

16 Mr Sell contends that the branches failed naturally, one in 2009 and a second in October 2010 during a day of high winds. He says the 2010 failure resulted in the branch falling onto the fence and his clothesline but no damage occurred as a result of either of the failures.

17 The Newfields disagree. They contend that there is evidence of rope abrasions on both branches, suggesting to them that the failures were not a result of natural causes.

18 After the failure of the second branch the Newfields engaged Australian Tree Consultants Pty Ltd (ATC) to assess the three trees. The ATC arborist Mr Hugh Taylor made an inspection on 22 October 2011 and provided a single page report on the same day stating that he had inspected "three juvenile specimens of Corymbia citriodora ..." Mr Taylor viewed photographs of the past branch failures and concluded, "the failure of the branches may have been assisted by mechanical means, (eg. pulled by a rope)."

19 It is unclear from the extremely limited information in the ATC report, which if any, of the three trees were inspected since there is no documentation of an inspection and one of the trees that is the subject of this dispute is an Angophora and not a Lemon Scented Gum as described by Mr Taylor. Mr Taylor apparently made no assessment of the branch stubs on tree T3 in order to verify his assumptions about the cause of the branch failure. As a result I cannot draw any conclusions as to the cause of the branch failures.

20 Mr Sell asserts that the failures were caused by high winds, however he presents no evidence to support his assertion and therefore I am not in the least informed as to the actual cause of the failures in this instance.

21 Notwithstanding the cause of the two branch failures, the largest of which was about 70 mm in base diameter, there is no evidence to show any damage was caused, and there is no evidence to suggest any likelihood of branch failure in the near future. As a consequence I find the jurisdictional test under s10(2)(a) is not met and therefore the Court's jurisdiction is not enlivened and no orders can be made in respect of tree T3

Branches that intrude into the airspace of another person's property

22 In my view it is necessary in this particular matter to address Mr and Mrs Sell contention that branches from their neighbours trees should not be allowed to encroach into the air space above their property. This matter was raised in their application made under s 7 of the Act and it was also raised during the on-site hearing.

23 The Trees (Disputes Between Neighbours) Act 2006 is restricted to actual or potential actual damage being caused to property or injury to persons. In Robson v Leischke [2008] NSWLEC 152 at 56, Preston CJ states that mere encroachment is not damage, in 169 that damage must be proved and in 171 annoyance or discomfort to an applicant by such things as leaves and flowers blown onto their property from their neighbour's land is not "damage to property on land' within s 7 of this Act unless they also cause damage to property on the neighbour's land.

24 As a consequence of the foregoing, the Court has no jurisdiction to make orders with respect to any of the three trees.

25 The orders of the Court are that the application in its entirety is dismissed.

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 22 December 2011