Land and Environment Court New South Wales

• Medium Neutral Citation: Goodwin v White [2012] NSWLEC 1054
• Hearing dates: 12 March 2012
• Decision date: 12 March 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; pruning ordered; part compensation ordered

• Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; compensation
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Robson v Leischke [2008] NSWLEC 152; Barker v Kyriakides [2007] NSWLEC 292; Joaquim v Adamson [2009] NSWLEC 1312
• Category: Principal judgment
• Parties: Ms C Goodwin (Applicant); Ms J White (Respondent)
• Representation: Applicant: Ms C Goodwin (Litigant in person); Respondent: Mr O'Brian (Agent)
• File Number(s): 21170 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 pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Seven Hills against the owner of trees growing on an adjoining property.

2 The applicant is seeking the following orders:

(1) The pruning of all branches of T1 - a Pinus sp that overhang her property and an annual inspection of the tree by an arborist.

Reasons: Possible whole tree failure onto her dwelling as a result of an uneven canopy; possible damage to paths, the house and other structures by tree roots; shedding of leaves into the guttering; shedding of sharp needles and cones onto the front yard that may cause injury; interference with the electricity service lines to her dwelling; and excessive shading leading to a mouldy ceiling.

(2) Regular pruning of overhanging branches from T2 and T3 - both Jacarandas, and T4 - an Acer negundo (Box Elder), and the installation of a root barrier.

Reasons: To prevent dropping of leaves into the guttering; to prevent potential damage to structures by roots.

(3) Compensation of up to $3759.90. This comprises $295 for two lattice panels damaged when a Schinus areira (Pepper tree) (T5) fell onto the applicant's fence; $960 - personal labour costs for the cutting up and removal of the fallen Schinus; $354.90 for materials to replace a decorative timber garden screen destroyed by the fallen Schinus; and $2150 for the replacement of the guttering on the applicant's house - claimed in part to have been caused by the build up of leaves from the Pine.

3 In applications made under Part 2 of the Act, the most important jurisdictional test is satisfaction of s 10(2). This states that the Court must not make an order unless it is satisfied that any tree subject to the application 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. 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 Court considers the risk posed by a tree in the foreseeable future.

4 In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Craig J at [29] cites Preston CJ in Robson v Leischke [2008] NSWLEC 152, 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. 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. At [62] Craig J 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".

5 The hearing commenced with an inspection of trees 1-4 and of the applicant's property. Each tree will be considered in turn.

Tree 1

6 Tree 1 is a mature Pine (possibly Pinus sylvestris ) estimated by the respondent to be at least 50 years old. It is growing on the eastern corner of the respondent's property between the dividing fence, street frontage and the respondent's driveway. Some pruning has been carried out on behalf of the respondent. The north-eastern side of the tree has been pruned away from the high and low voltage electricity mains in the street giving the tree an unbalanced appearance.

7 The tree appears healthy; some of the main limbs have included bark however I saw no evidence of past failures or anything to indicate likely future failure of the branches. The annual extension growth appears to be about 100-150mm. I saw no signs of instability or anything that would lead me to conclude that the tree is likely to fail at ground level.

8 Parts of the canopy overhang the northern corner of the applicant's dwelling. I noted some debris in the guttering. Several relatively small diameter branches are close to the electrical service line leading to the applicant's dwelling from the pole in the street. These branches are within the recommended 500 mm clearance space.

9 I was shown some minor cracks in a concrete path near the tree however, there was no evidence as to whether these cracks were present when the applicant purchased her property in 2005, or indeed, if they were caused by the tree.

10 Photographs of the original guttering showed major deterioration along the front of the dwelling. The applicant contends this was caused by the build up of debris from the Pine; the respondent asserts that the replaced guttering was at least 30 years old and could be expected to be in need of replacement.

Findings - Tree 1

11 The application refers to issues of excessive shading and a mouldy ceiling as a result of this. Applications regarding severe obstruction of sunlight must be made under Part 2A; there is no jurisdiction to deal with sunlight under Part 2 of the Act.

12 Based on the evidence of the tree and its surrounds, I am not satisfied that the tree is likely to cause injury to anyone either by falling over or through the shedding of cones or branches. Therefore, this element of the application is dismissed.

13 With respect to the actual or potential root damage to structures, similarly, there is no evidence that this has happened or is likely to happen. Therefore, this element of the application is also dismissed.

14 While some of the damage to part of the guttering may have been caused by the build up of pine needles, thus establishing that the tree is a cause of the damage and therefore engaging the jurisdiction, on a discretionary basis I am not minded to make any orders for any pruning or compensation. There are several reasons for this. The compensation sought is for the cost of the guttering for the entire dwelling; on the applicant's admission, other parts of the guttering were satisfactory but the advice from the roofing company was to replace the lot. Photographs of the original guttering and its very degraded condition indicate that the problem would have been obvious for some time. The work was done in 2007 - some two years or so after the applicant purchased her property. I am of the view that the neglected state of the gutter would have been similar at the time of purchase. In this case, only a proportion of the overall cost of the guttering could be considered; this would include the portion directly affected by the tree and the extent of deterioration that occurred during the period over which the applicant owned her property to the time the gutter was replaced. However, replacement of guttering is to be expected at some stage.

15 I also consider the Tree Dispute Principle published in Barker v Kyriakides [2007] NSWLEC 292 to be relevant. 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. I am not satisifed that there are any exceptional circumstances that would lead me to depart from the principle. Therefore, no orders will be made for any pruning of the tree away from the gutters or for the payment of any compensation for the replacement of the gutters.

16 In regards to the electrical service lines, parts of the tree are almost in contact with the wires and within the clearance zone. I am satisfied that damage could occur during wet and windy weather. Therefore, s 10(2) is satisfied in this respect and some pruning is reasonable.

17 In Joaquim v Adamson [2009] NSWLEC 1312, the respondents were ordered to engage an arborist to prune parts of their trees away from the applicants' powerlines. I consider this to be appropriate in this matter and similar orders will be made.

Trees 2-4

18 While these trees are relatively close to the common boundary, particularly T4, there is no evidence that any of the trees have caused, or will in the near future cause, damage to the applicant's property - either above or below ground. There is a bowed section of concrete footing under one fence panel, which the respondent said he poured and which has not changed since it was done. The applicant has undertaken some routine pruning of small branches and this seems appropriate in the circumstances and nothing that requires an order of the Court. As none of the tests in s 10(2) are satisfied for these trees, no orders will be made and this element of the application is dismissed.

Tree 5

19 In 2010 a review of the Trees Act extended the Court's jurisdiction to cover trees that have been removed but which can be proven to have caused damage to an applicant's property. There is uncontested evidence that in November 2008, this tree fell through the dividing fence between the parties' properties. When it fell it also damaged two timber lattice panels on the fence at the rear of the applicant's property and it destroyed a decorative timber screen on the applicant's property. Photographs included in the application and supplementary information show the timber screen before and after the tree fell.

20 The screen has not been replaced but the lattice panels have. There is an invoice for the panels. The claim for the screen appears to be based on prices for the components from a large hardware chain.

21 The applicant is claiming her time and that of others for the labour involved in removing the tree from her property. Commissioners do not have the jurisdiction to award such costs.

22 On the evidence, I am satisfied that the respondent should reimburse the applicant for the cost of the lattice panels and contribute to the reinstatement of the screen.

23 Therefore on the basis of the forgoing, the Orders of the Court are:

(1) The application regarding Tree 1 - the Pine, is upheld in part.

(2) Within 60 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to clear the applicant's electrical service lines to a distance of 500mm and an additional 300mm for regrowth. The branches are to be cut to the nearest branch collar and in accordance with s 7.3.2 and general provisions of AS4373:2007 Pruning of Amenity Trees .

(3) The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) The applicant is to provide all access for the work to be carried out in a safe and efficient manner on two working days (verbal) notice.

(5) The application with respect to trees 2,3,and 4 is dismissed.

(6) In regards to Tree 5, within 21 days of the date of these orders, the respondent is to reimburse the applicant a sum of $295 for the two lattice panels damaged when the tree fell.

(7) Within 90 days of the date of these orders, the applicant is to purchase the necessary materials and reconstruct the timber screen at the rear of her property as it was prior to its destruction when the tree fell on it. The screen need not be placed in the same location. If the work is not completed within the specified time, order 8 lapses.

(8) The respondent is to reimburse the applicant a maximum of $350 for the replacement of the timber screen within 21 days of the receipt of a tax invoice for the materials and proof of its construction.

______________________________

J Fakes

Commissioner of the Court

Decision last updated: 12 March 2012