Land and Environment Court New South Wales

• Medium Neutral Citation: Sultana v Micallef [2012] NSWLEC 1078
• Hearing dates: 29 March 2012
• Decision date: 29 March 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; removal of one tree ordered and the pruning of others

• Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons; leaf litter; noxious weeds
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Rural Fires Act 1997; Noxious Weeds Act 1993
• Cases Cited: Robson v Leischke [2008] NSWLEC 152; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Yang v Scerri [2007] NSWLEC 592; Clune v Falconer [2008] NSWLEC 1458; Moase v McMahon [2010] NSWLEC 1123; Ratay v Allen [2010] NSWLEC 1086; Freeman v Dillon [2012] NSWLEC 1057; Ghazal v Vella (No. 2) [2011] NSWLEC 1340; Barker v Kyriakides [2007] NSWLEC 292; Hendry & anor v Olsson & anor [2010] NSWLEC 1302
• Category: Principal judgment
• Parties: Mrs L Sultana (Applicant); Mr P and Mrs V Micallef (Respondents)
• Representation: Applicant: Mrs L Sultana (Litigant in person); Respondents: Mr I Roche (Solicitor); Respondents: Shaddicks
• File Number(s): 21261 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) made by the owner of a property in Schofields against the owners of trees growing on an adjoining property.

2 The applicant contends that 69 trees growing along the common boundary on the northern side of her property have caused, and could in the future cause, damage to her property and could cause injury to anyone on her property.

3 The orders sought in the application are summarised as:

• Removal of trees that are threatening buildings and structures;
• Removal of overhanging branches;
• Removal or treatment of diseased or termite infested trees;
• Removal of noxious weeds;
• Clearing of gutters of all debris that has accumulated within and on the buildings;
• Flushing of drains of all debris accumulated over the past 14 years;
• Removal of any tree roots that are encroaching and that may cause injury or are deemed to be a fire hazard;
• Limits on any future planting of trees to avoid future damage or injury;
• Reimbursement of a pest control invoice; and
• Reimbursement of the Court filing fee.

4 After the inspection of the trees, the applicant stated that she would be content with orders for the removal of all dead trees and the pruning of the remainder to fence height - about 1.5m above ground.

5 The respondents do not wish to remove or prune all of the trees. They have permission from Blacktown City Council to remove some trees and to prune others. The removal of dead trees does not require council permission.

6 The row of trees is of mixed species with predominantly Cupressus sp (Cypress Pines) at the western end and then an alternating mixture of Eucalyptus spp and Ligustrum spp (Privet) to the east. Most of the trees are within 1m of the common boundary; the boundary fence ranges from a 1.5m timber fence to a low open wire fence with or without a base of corrugated iron.

7 From west to east, the structures/ areas on the applicant's property are front garden, pergola/ paved seating area, garage, series of old service sheds and then an open parking area and dish stormwater drain.

Section 10(2) and the extent to which the Court must be satisfied

8 At the commencement of the on-site hearing, the parties were advised of the key jurisdictional test that must be satisfied before any orders can be made as well as the limitations of the Trees Act and the Court's powers under that Act.

9 Under s 10(2) of the Act, the Court must not make an order under Part 2 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.

10 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.

11 In this matter, the Court must be satsified that each of the trees subject to the application is at least a cause of the alleged damage/ potential injury (see Preston CJ in Robson v Leischke [2008] NSWLEC 152 at [179]). 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.."

12 In essence, these are the parameters within which I must consider the application before me.

Future damage or injury

13 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; 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.

Costs

14 Dealing with the reimbursement of the filing fee, Commissioners do not have the jurisdiction to award such costs. Claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge.

Termites

15 The applicant seeks orders for the removal or treatment of trees that may be infested with termites. The application includes an invoice from a pest control company for an inspection of a shed and its subsequent treatment for termites. There is no mention of trees in the invoice - just the statement "Termites in shed eating timbers". The applicant is concerned that the damaged shed may fall and injury someone; she appears to have assumed that the termites have come from the respondents' trees.

16 Preston CJ discussed the requirement for a nexus between the tree and damage to property or injury to any person in Robson v Leischke at [176-189]. His Honour also noted that the cause must be the tree itself and that the mere fact that the tree might provide habitat to animals or insects, which cause damage does not mean such damage is "as a consequence of" the tree. He said:

189Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601. Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's property: Dooley v Newell [2007] NSWLEC 715 at [22]-[23].

Similar findings are found in Clune v Falconer [2008] NSWLEC 1458 with respect to mosquitoes and termites in Moase v McMahon [2010] NSWLEC 1123 at paras 17-19 with respect to bats and in Ratay v Allen [2010] NSWLEC 1086 with respect to cockatoos.

17 Therefore this element of the application is dismissed, as is the claim for reimbursement of the pest control invoice.

Fire and noxious weeds

18 The applicant seeks orders for the removal of any encroaching roots that may be a fire hazard. This is an unusual order in the realm of 'theoretical possibility' and no evidence was put forward to substantiate the applicant's concerns. The applicant also seeks orders for the removal of noxious weeds, in particular two species of Privet.

19 In regards to the risk of bushfire and the presence of nearby trees, the Court in Freeman v Dillon [2012] NSWLEC 1057 at [89] found:

86Despite this concern and the evidence, I am not satisfied that general bushfire risk posed by trees is within the jurisdiction of the Court under the Trees Act. A tree in itself does not start a fire...a person lights a fire, lightning strike, sparks from machinery etc may start a fire. However, if a bushfire damaged the trees and caused part or all of the tree to fail and cause damage to an applicant's property or injury to any person, then this may engage a consideration of s 12(h)(i) and s12 (i)(i), that is "anything, other than the tree, that has contributed, or is contributing, to any such damage/ injury or likelihood of damage/ injury". As discussed by Preston CJ in Robson at [210] this: " would also allow consideration of extraordinary natural 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". As no injury or damage has occurred as a result of a bushfire affected tree, this element of the application is dismissed.

20 As stated at the hearing, the Trees Act has no direct relationship with the Rural Fires Act 1997 or the Noxious Weeds Act 1993. Section 6 of the Trees Act says, in essence, that the Trees Act does not allow any work to be done to a tree if permission is required under other legislation or from another consent authority unless the jurisdictional tests in Part 2 and Part 2A apply. With respect to weeds, the Trees Act does not specify particular species. The power of the Court is only engaged if the plant, which may or may not be a declared weed, satisfies the relevant jurisdictional tests.

21 Therefore, these elements of the application are dismissed.

22 In regards to the permission given to the respondents by Blacktown City Council under the council's Tree Preservation Order, that is between the council and the respondents. The relationship between the Trees Act and a council's Tree Preservation Order is discussed in Ghazal v Vella (No. 2) [2011] NSWLEC 1340.

Leaf litter

23 The applicant states that the fallout of leaves and other debris onto paving, into gutters, onto the ground between the sheds and the trees, and into an earthen (unsealed) stormwater drain between a parking area and the trees, has caused damage and may cause injury. The applicant is also concerend about 'mossy' growth on outdoor furniture on a paved area to the west of the garage that she says is caused by the excessive shading of the trees. She contends that the leaf litter and mossy growth on paving may create a slipping hazard and that the debris makes it difficult to access the area behind the sheds.

24 With respect to the drain, it is located at the eastern end of a row of sheds and collects runoff from the parking area and directs it to a dam. The applicant says that water is blocked from entering the dam because of leaves however I was shown no evidence of this and the dam appeared full.

25 I was shown leaf litter and other debris on the ground between the trees and the applicant's sheds. The applicant says she has to spend time every three months or so cleaning up the mess.

26 I am not satisifed, to the level required by s 10(2) that the fallout of leaves has caused any damage to the applicant's property or is likley to cause injury to anyone. However if I am wrong on this, on a discretionary basis I would not make orders for any interference with the trees on this basis. The Court has published a Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 that considers for those who live in urban leafy environments [this property is in a semi-rural area] and who enjoy the environmental and aesthetic benefits that trees provide, the shedding of leaves, fruit, small elements of dead wood and so on would not ordinarily lead the Court to order any interference with the tree on that basis. It goes on to say that regular external housekeeping is to be expected. The principle was extended to mould in Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [14].

27 I do not consider there are any exceptional circumstances in this matter that would lead me to deviate from the Tree Dispute Principle in Barker and no orders will be made for any intervention with any of the trees on the basis of leaf drop.

Overhanging branches

28 The applicant seeks orders for the removal of all overhanging branches. In particular, the applicant is concerned that trees at the western end of the row may cause damage to a communications cable that runs from a pole in the street to her dwelling. She is also concerned that branches overhanging her property may cause damage to sheds and other structures. Similarly, she is concerned that dead wood falling from trees, or indeed the failure of any overhanging tree, may cause injury to someone on her property. She is particularly concerned about the paved area west of the garage and the car park at the eastern end of the property.

The communications cable

29 I observed a substantial clearance space between the communications cable and the trees on the respondents' property. There is no indication that any of them are likely to interfere with the cable or cause any damage in the near future; the applicant stated that no damage has occurred in the past. As s 10(2) is not satisfied, this element of the application is dismissed.

Branches touching the applicant's property

30 There are a number of trees that have branches touching/ resting on the roof of the applicant's garage and a small shed to the east. The trees are the eastern-most conifer (closest to the north-western corner of the applicant's garage), the first Eucalypt to the east of the conifers, and several Large-leaf Privets near this eucalypt. The eucalypt and the privets are located adjacent to an open grassed section of the respondents' property to the east of the Brooder Shed and to the south of Duck Shed 1. I am satisfied that these trees could, in the near future, cause damage to the applicant's property, and as s 10(2) is satisfied in this regard, orders may be considered for these trees.

31 Of these trees, the only tree to be removed is the eucalypt as the majority of the tree overhangs the shed and removal of the branches would retain little of the tree. The other trees have branch structures that are capable of being selectively pruned/ reduced in accordance with AS4373: 2007 Pruning of Amenity Trees. I consider a minimum clearance of 1m would be sufficient to prevent future damage.

32 Because of the extent of the overhang, orders will be made for the applicant to provide access for the work to be carried out safely and efficiently. Any contractors are to be made aware of the particular access requirements that relate to the applicant's poultry business.

33 To the east of the first small shed, the only potential damage to the applicant's property is from one or more large Prickly Pear plants that are resting of the roofs of other sheds. The Prickly Pears are on the applicant's property.

The parking area

34 The applicant is concerned that branches falling from the trees that overhang the parking area towards the rear of the property may injure someone. The applicant operates a poultry business that grows chickens. Workers and trucks use the car park when waiting for the loading and unloading of chickens; much of the work occurs at night.

35 Between the parking area and the dividing fence to the north is a row of old wooden power poles in poor condition resting on concrete blocks. The poles are obviously there to provide a barrier to prevent someone from driving into the stormwater drain beside the fence. The soil at the edge of the drain and under the poles is quite eroded.

36 I estimated the overhang of the trees to be 4m at most. There are two dead trees in the vicinity of the parking area but both appear well within the respondents' property and at low risk of failure into the applicant's property. The remaining trees appear to be healthy with no obvious structural defects. There is very little dead wood in them and what is there is of very small diameter (less than 15mm) and below the diameter typically ordered for removal by this Court.

37 In my opinion, the risk of injury from falling branches is extremely low and much lower than the risk of injury posed by the current condition of the timber barrier. I am not satisfied that any of the tests in s 10(2) are met for any of the trees adjoining the parking area and this element of the application is dismissed.

The paved seating area

38 There are a number of conifers overhanging the paved seating area at the western end of the applicant's garage. These are planted between the dividing fence and a shed on the respondents' property. The applicant is concerned that these may fall onto her property and cause damage or injury.

39 I inspected the trees, some of which are leaning towards the applicant's property, and despite the moist soil conditions, the trees appeared well anchored and showed no signs of failure in the near or foreseeable future. Therefore, there is no basis on which to order their removal or pruning.

Other injury claims

40 The other potential cause of injury claimed by the applicant is being hit by live low branches as she cleans up the area between the fence and the sheds. During the site inspection I noted that these branches are easily seen and readily avoided. If they are causing a problem, the applicant could easily trim them with secateurs. The risk of injury is not sufficient to warrant the making of Court orders to either remove the trees or prune the branches and this element of the application is also dismissed.

Conclusions and orders

41 In the main, the evidence does not substantiate the orders sought by the applicant. Only those of the respondents' trees currently touching the applicant's sheds engage the Court's jurisdiction and therefore the orders must be limited to these trees. The applicant's revised order for the pruning of the trees to 1.5m is completely disproportionate to the risks posed by the trees and would essentially require the removal of the trees. Pruning the trees to this height would be counter to the Australian Standard for the pruning of amenity trees and would not be supported by the Court.

42 Therefore the Orders of the Court are:

(1) The application is upheld in part.

(2) Within 60 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist to prune the branches of the conifer and privets that are touching the applicant's garage and shed to a minimum distance of 1m away from those structures. The Eucalypt that touches and overhangs the roof of the garage is to be removed to ground level [these trees are identified in paragraph 30 of this judgment].

(3) The pruning is to be carried out in accordance with AS4373: 2007 and is to be a combination of selective and reduction pruning. All work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) The respondents are to advise any contractors of the access requirements relating to the applicant's property.

(5) On a minimum of three working days notice, the applicant is to permit all necessary access for the purpose of quoting and carrying out the works.

__________________________

J Fakes

Commissioner of the Court

Decision last updated: 30 March 2012