Land and Environment Court New South Wales

• Medium Neutral Citation: Owners Corporation SP 68987 v Dapto Bowling Club [2012] NSWLEC 1044
• Hearing dates: 29 February 2012
• Decision date: 29 February 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application for removal of trees dismissed

• Catchwords: TREES [NEIGHBOURS] Future damage to property; risk of injury
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Barker v Kyriakides [2007] NSWLEC 292; Hinde v Anderson & anor [2009] NSWLEC 1148
• Category: Principal judgment
• Parties: Owners Corporation SP 68987 (Applicant); Dapto Bowling Club (Respondent)
• Representation: Applicant: Mr B Lynne (Agent); Respondent: Mr B Brown (Agent)
• File Number(s): 21143 of 2011

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 Act) by the Owners Corporation SP 68987 against Dapto Bowling Club. The applicant's property comprises seven villa units.

2 The application seeks orders for the removal of 14 Brush Box trees ( Lophostemon confertus ), which are growing along the southern boundary of the club's carpark. According to one of the residents of the units, a keen bowler, he remembers the day, the time and by whom the trees were planted in 2002, shortly after the occupation of the villas.

3 The orders are sought for the following reasons:

• Concerns that roots may, in the future, cause damage to pathways at the rear of the units and the sewer that runs near the dividing fence;
• Falling leaves and fruit create a slip hazard and therefore pose a risk of injury, particularly to elderly residents;
• Fears that overhanging branches may fall and injure residents or their visiting grandchildren; and
• The trees may blow over in strong winds.

4 The Bowling Club does not wish to remove the trees that were supplied to them by Wollongong Council.

Jurisdictional tests

5 For applications made under Part 2, a key jurisdictional test is the satisfaction of any part of s 10(2) of the Act. Under s 10(2), the Court must not make an order unless it is satisfied that any of the trees 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 As the applicants are concerned in part 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 the circumstances. In regards to injury, the risk must be reasonably foreseeable and be based on the evidence available at the time of the hearing.

7 If any of the tests in s 10(2) are satisfied for any or all of the trees, the Court's jurisdiction is enlivened and the Court may make any order it thinks fit in accordance with s 9 of the Act. There is no requirement to make the orders either of the parties seek. The Court must satisfy itself, on the evidence presented, as to what orders, if any, are appropriate.

8 In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [38] Craig J discusses the obligation created by s 10 for the Court to be satisfied of the causal nexus between any tree the subject of an application and the damage claimed by an applicant. He says in part:

...That will require an assessment of the totality of the evidence adduced before me. When considering that evidence, it will, nonetheless, require "a preponderance of probability" that the causal nexus exists. Anything less would not be tantamount to the satisfaction required by the section....

Further, at [62] Craig J states " something more than a theoretical possibility is required in order to engage the power under [the Trees Act] in order to remedy, restrain or prevent damage as a consequence of a tree.." Another way of putting it is that the fears of the applicant but be capable of being realised.

9 This is the basis upon which I have to consider the concerns of the applicant and the evidence before me.

The hearing

10 The on-site hearing commenced with an inspection of the trees. They are planted in a relatively narrow garden bed between the carpark and the metal dividing fence.

11 I observed the trees to be healthy and of good form, except trees 1 and 2. These two trees have been heavily pruned, particularly tree 1, which sits below fence line. The pruning has not been carried out in accordance with the Australian Standard for Pruning Amenity Trees - AS4373:2007. The remaining trees range in height from about 7-10m.

12 There is evidence of pruning of some lower limbs on the majority of the trees, particularly on the southern / applicant's side. Greenkeeping staff carried out some of this work; persons unknown did the other pruning. Some of the cuts are not in accordance with the pruning standard but none of the pruning appears to have had any detrimental effects on the health or structure of the trees.

13 With the exception of a dying lower branch on tree 14 I saw no dead wood of any size that would cause damage or injury if it fell [the dying branch should not cause any damage to the applicant's property]. The dead material in the trees is small and twiggy.

14 I saw no structural defects in any of the trees and I saw no weakly attached branches on any part of any tree that was overhanging any of the villas. The residents stated that to date, no branches have fallen from the trees. There were no signs of instability in the trees' anchorage.

15 With respect to root incursion, it was reported that two residents had each removed one or more small roots from their gardens. I saw no structural damage to any pavement that could be attributed to root growth and none was pointed out. When questioned about problems with the sewer, I was informed that there have been no problems with it.

16 One of the residents' main concerns is the dropping of leaves and fruit that may create a slipping hazard. One of the residents told me that she had slipped and fallen because of a seed capsule stuck on her shoe.

17 I inspected four of the seven courtyards. The courtyards are on the northern side or rear of the villas. They are relatively narrow and mostly paved. Some residents have retained garden beds along the fence line. All but one of the courtyards showed that regular sweeping was carried out and very little debris remained on the ground. The courtyard belonging to the resident who fell was mostly covered by a metal awning, the exception being the area near the laundry door where she slipped.

Findings

18 There is no evidence that any of the trees is presently causing, or has caused, any damage to the applicant's property. With respect to future damage, I saw no evidence to suggest that this is likely to happen in the near or foreseeable future. It is normal that some roots will be growing on the applicant's property, given the proximity of the trees, however there is no reason to assume that damage will arise.

19 Therefore, on the evidence before me, I am not satisfied that any of the tests in s 10(2) concerning damage to property are met by any of the trees and therefore the Court has no jurisdiction to make orders for any interference with the trees on that basis.

20 While some branches overhang the applicant's property, this in itself does not automatically equate to a risk of damage or injury. As noted earlier, I observed the branches to be well attached and the dead wood to be very small.

21 In terms of the risk of injury from fallen leaves and fruit, while it is regrettable that one resident slipped on a fruit, on the evidence before me, I consider the overall risk of injury to be low.

22 If I am wrong on that, the Court has a long-held Tree Dispute Principle published in Barker v Kyriakides [2007] NSWLEC 292. Essentially, this principle states that the natural process of the shedding of leaves, fruit, twigs and so on by trees will not ordinarily lead to the making of orders for any intervention with a tree. It is considered that where trees are growing in urban environments, a degree of regular external housekeeping is expected.

23 While I accept that many of the residents are not as mobile as they once were, the courtyards were generally well maintained. To order the removal of trees on the basis of leaf/ fruit drop would be disproportionate to the risk posed. Similarly, the pruning of overhanging branches would make little difference. On the evidence before me, I am not satisfied that there are any exceptional circumstances that would lead me to depart from this Tree Dispute Principle.

24 As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, if the circumstances change, another application can be made.

25 However, on the basis of the forgoing, the Orders of the Court are:

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

____________________

J Fakes

Commissioner of the Court

Decision last updated: 01 March 2012