Land and Environment Court New South Wales

• Medium Neutral Citation: Oaten v Robinson [2012] NSWLEC 1028
• Hearing dates: 10 February 2012
• Decision date: 10 February 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; removal refused; pruning ordered; compensation refused

• Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons, compensation; reasonable effort to reach agreement
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Robson v Leischke [2008] NSWLEC 152; Ball v Bahramali & anor [2010] NSWLEC 1334; Yang v Scerri [2007] NSWLEC 592; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Barker v Kyriakides [2007] NSWLEC 292
• Category: Principal judgment
• Parties: Mr B Oaten (Applicant); Ms A Robinson (Respondent)
• Representation: Applicant: Mr B Oaten (Litigant in person); Respondent: Mr A Seton (Solicitor); Respondent: Marsdens Law Group
• File Number(s): 21008 of 2011

Judgment

This decision was given as an oral 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 Act) made by the owner of a property in St Georges Basin against the owner of 13 trees growing on an adjoining property.

2 The applicant is seeking Court orders for the management of the trees in accordance with an arborist's report obtained by him in October 2011 from Moore Trees. That report recommends a number of actions including tree removal, removal of deadwood, and crown reduction.

3 The orders are sought on the basis that falling branches from the respondent's trees have caused, or could in the future cause, damage to the applicant's property or could cause injury to his family.

4 The damage alleged to have been caused is damage to the roof of the garage, attached dwelling, and vehicles, as well as leaf litter and twigs accumulating in gutters.

5 The applicant is also seeking $13,000 in compensation. $10,000 is for roof repairs he contends were necessitated by damage caused by branches and leaves falling from the respondent's trees. $3000 is for unspecified damage to vehicles said to have been damaged by falling branches.

6 The respondent is prepared to undertake some removal of dead wood from a number of trees should the Court require it. The respondent's position is based in part on the recommendations of Mr Scott Freeman, and arborist engaged by the respondent. Mr Freeman was present at the hearing and assisted the Court by numbering the trees.

The trees and the evidence

7 There are 13 trees identified in the Moore Trees report. They are a mixture of Corymbia maculata (Spotted Gum) and Eucalyptus robusta (Swamp Mahogany) both locally indigenous species. The Spotted Gums are trees 1,2,3,4,6,7,8,10 and 13. The Swamp Mahogany are trees 5, 9, 11 and 12.

8 The Moore Trees report recommends removal of trees 3, 6, 9, 11 and 12 - essentially on the basis of poor form, previous damage, or being suppressed by other trees. The recommendations are not based on the trees being dangerous.

9 At the hearing, the trees were visually assessed from the ground, the condition of the trees was noted, as was the proximity of each of the trees to the applicant's property and any overhanging branches. The applicant was questioned as to his concerns about each tree.

10 The applicant accepted that a number of the trees were far enough away from his property not to cause him concern, and as a result, orders for intervention with trees 1, 6, 7, 8 and 13 are no longer pressed.

11 The remaining eight trees are those closest to the common boundary between the parties' properties. The trees are mature, and of forest form and habit indicative of being part of a remnant community. The trees appear generally healthy.

12 I concur with Mr Freeman's report in that there are no significant structural defects in any of the trees. The Moore Trees report includes dead wood as a defect in some trees, as well as lost leaders in two trees. However, in my opinion, dead wood is a normal phenomenon and the lost leaders have not resulted in any significant structural problems with the trees.

13 Dead wood in excess of 20mm in diameter was noted in a number of trees relatively close to the applicant's property; trees 4,5,9,11 and 12.

14 With respect to the damage, the applicant has not provided any photographic evidence of any damage he says has been caused by branches falling from the respondent's trees. He stated that about 100 roof tiles were broken. In support of his application, an undated letter from a roof sealing company was tendered. This letter refers to unspecified problems being due to broken tiles, which in the opinion of the author of the letter, were caused by "fallen debris and branches from the gum trees adjoining your property". However, no specific details or photographs are provided.

15 During the hearing, the applicant was questioned as to when the tiles were broken and from which trees the branches fell. The applicant was unable to answer those questions.

16 Roof repairs were carried out in October 2011. The original invoice was not tendered in evidence. The photocopy of the tax invoice for the works is difficult to read as other receipts obscure the items covered in the works. It appears that other parts of the roof, some distance from the trees, were also repaired/ sealed.

17 It was established that the applicant did not speak directly to the respondent at any time regarding the issues with the roof and the need for repairs. There were some conversations between the applicant and the respondent's father, who carries out some maintenance of the respondent's property, as well as an occupier of the respondent's property. It is noted that the respondent resides in Melbourne but spends some holidays on the property.

18 With respect to the damage to vehicles, there is no invoice or any other details to prove the applicant's contentions. At the hearing we were shown a recent dent in a car and a dead branch the applicant said had caused it. However, the applicant was unable to say from which tree it may have fallen.

Jurisdiction

Section 10(1)(a)

19 Mr Seton, for the respondent, raised s 10(1)(a) as a relevant jurisdictional test. This states:

(1) The Court must not make an order under this Part unless it is satisfied:

(a that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated,..

20 Mr Seton submits that the applicant has not made a reasonable effort to reach an agreement with the respondent, as he did not speak with his client at any time about the trees and the alleged damage.

21 The applicant said that while there was an opportunity over the Christmas period, he did not want to upset anyone's holiday by raising the issue of the trees.

Findings s 10(1)(a)

22 The notion of "a reasonable effort to reach agreement" has been discussed at some length by Preston CJ in Robson v Leischke [2008] NSWLEC 152 at [191]-[196]. In summary, the Act "does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree owner "[192]; the Act "did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement" [193]; the Act "does not specify any particular time at which the applicant must make a reasonable effort"; [194]; and, "a reasonable effort can be made after making the application at any time up until the Court determines the application" [194]. Reasonable effort is further explored in Ball v Bahramali & anor [2010] NSWLEC 1334 at [38] - [45].

23 In this matter, while I accept the applicant has made some effort to contact the respondent, it is somewhat limited given the amount of compensation sought. While I accept the difficulties of dealing with an owner who lives interstate as well as the applicant not wanting to upset family holidays, given the applicant's concerns, it would have seemed appropriate to raise the issues with the respondent while she was in residence.

24 However, while the respondent may consider the effort to be less than reasonable, I concur with the findings in Robson that the parties had until the determination to reach an agreement; in part, this occurred during the course of the hearing. I am satisfied that I can proceed to consider the jurisdictional matters in s 10(2).

Section 10(2)

25 In applications made under Part 2 of the Act, the key jurisdictional test is 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.

26 The tests in s 10(2) must be applied to each of the trees subject to the application. If any test is satisfied for any tree, the jurisdiction is enlivened and the Court may make any order it thinks fit under s 9 of the Act.

27 As the applicant raises the issue of future damage, the Court has consistently adopted the guidance principle published in Yang v Scerri [2007] NSWLEC 592 which determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in the circumstances. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future.

28 The extent to which the Court must be satisfied is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. Craig J at [29] cites Preston CJ in Robson v Leischke , who makes it clear that the Court must be satisfied as to the existence of a causal connection between a tree that is the subject of an application and the damage or injury claimed by an applicant. The tree need only be a cause to engage the jurisdiction.

29 Further in Smith & Hannaford , Craig J considers the level of satisfaction required by the Court of the causal nexus between a tree and any damage (or likely injury). At [62] he states that "something more than a theoretical possibility is required in order to engage the power under the [Trees Act]". The level of confidence required is at least, the "bare preponderance of probability".

Findings s 10(2) and compensation

30 With respect to the compensation claimed, the level of proof provided by the applicant is inadequate for the Court to fairly and reasonably award the amounts claimed for both the roof repairs and damage to vehicles. Therefore, this element of the application is dismissed.

31 It is not improbable to consider that branches falling from the parts of the trees that overhang the applicant's property may have caused damage to the roof, or indeed, the vehicles. However, with respect to the roof, there is no evidence other than an undated letter, and in regards to the damage to the cars referred to in the application, there is no evidence at all. This is insufficient to satisfy the Court to the required level.

32 However, after inspecting the trees, I am satisfied on 'the bare preponderance of probability' that dead wood falling from some of the trees could, in the near future, damage the roof of the applicant's garage or cause damage to other structures/ items. As previously stated, I noted dead wood in excess of 20mm in diameter in a number of trees close to the common boundary. Some dead wood is of a size that could cause injury if it falls on someone. However, I am not satisfied that any live branch overhanging the applicant's property is likely to cause damage in the near future or injury in the foreseeable future.

33 With respect to the leaves and other debris the applicant is concerned about, there is insufficient evidence of actual damage caused by its deposition. If I am wrong on that point, the principle adopted by the Court with respect to trees in an urban environment - published in the case of Barker v Kyriakides [2007] NSWLEC 292 - that those persons who have the benefit of trees in an urban environment (this being a benefit that is both environmental and aesthetic) can be expected to undertake ordinary routine maintenance of their properties to cope with the normal shedding of material from those trees. As a consequence, I would not, as a matter of discretion, make any order for intervention with or removal of the tree because of the deposition of such material.

34 Therefore as s 10(2) is satisfied for a number of trees, the Court must consider the discretionary matters under s 12 before considering what, if any, orders should be made.

35 The relevant clauses in s 12 are:

(a) The trees are located on the respondent's land and are relatively close to the common boundary;

(b2) the removal of dead wood will not have any adverse impact on the trees if the work is carried out in accordance with AS4373:2007 - Pruning of Amenity Trees;

(b3,e,f) The trees contribute to the amenity of the land on which they are growing, as well as to the natural landscape and scenic value of the locality. They contribute to the overall character of the landscape and have intrinsic value to public amenity.

(d) The trees are likely to be remnants of the original forest community and as such will contribute to the local ecosystem and to biodiversity.

(h)(ii) Both parties have engaged arborists to provide specialist advice.

Conclusions and orders

36 After considering the evidence and taking into account the discretionary matters, I consider that some removal of dead wood from some of the trees is appropriate. I agree with the arborists that no trees are structurally defective or dangerous enough to warrant removal.

37 Therefore, as a consequence of the forgoing, the Orders of the Court are:

(1) The application is upheld in part; tree removal is refused but some pruning of dead wood is allowed.

(2) The claim for compensation is dismissed.

(3) Within 30 days of the date of this judgment, the respondent is to engage and pay for an AQF level 3 arborist to remove all dead wood in excess of 20mm from trees 4,5,9,11 and 12 from those parts of these trees that overhang the applicant's property to a distance of 3m from the common boundary inside the respondent's property. The labels/ numbers are to remain on the trees until the work is completed.

(4) The work is to be carried out in accordance with AS4373:2007 and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5) The applicant is to allow access for the work to be carried out in a safe and efficient manner on at least two working days (verbal) notice.

________________________

J Fakes

Commissioner of the Court

Decision last updated: 17 February 2012