Land and Environment Court New South Wales

• Medium Neutral Citation: Cox v Meiers [2012] NSWLEC 1215
• Hearing dates: 30 July 2012
• Decision date: 30 July 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] future damage or 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
• Category: Principal judgment
• Parties: Mr Bruce Cox (Applicant); Ms Carmel Meiers (Respondent)
• Representation: Mr Bruce Cox (Litigant in person) (Applicant); Ms Carmel Meiers (Litigant in Person) (Respondent)
• File Number(s): 20457 of 2012

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 s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Leura against the owner of three Pinus radiata trees growing on an adjoining property.

2 The applicant and his wife are concerned that the three trees could fall over, particularly in strong winds, and cause significant damage to their property or injury to themselves or anyone else present at the time.

3 The applicant's concern is based largely on the mature age, large size, and species of the trees and relatively recent failures of what he believes to have been very similar trees in Blackheath and Medlow Bath.

4 The applicant considers that the trees have shallow root systems, are growing in moist conditions, and, should one fail, it would take the others with it.

5 The applicant seeks orders for the removal of the trees or reduction to a height (4 m was nominated) that would limit their potential to cause damage.

6 The respondent values the trees and does not want to remove them.

7 In applications made under Part 2, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order unless it is satisfied that the tree 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.

8 The guidance decision in Yang v Scerri [2007] NSWLEC 592 considers the 'near future' for damage to be a period of 12 months from the time of the hearing; other decisions have considered the period for risk of injury to be the foreseeable future. In all matters, the particular circumstances of the trees in their immediate environment are the focus of the decision-making process. In this matter I see no reason to vary the commonly applied time periods.

9 If any element of the section is satisfied for any of the trees subject to the application then the Court's power under s 9 to make what, if any, orders should be made, is engaged.

10 The trees were viewed on site. The three trees are well-established mature specimens growing at the rear of the respondent's garden. The respondent has owned her property for 32 years and a photograph taken in 1980 shows the trees to be well established at that time.

11 The applicant built a new dwelling on his property some 12 years ago. The dwelling is set back some 20 m from the common boundary. Tree 1 is about 6m from the boundary, Tree 2 about 15m and Tree 3 approximately 8m. The trees are to the north-west of the applicant's dwelling.

12 The applicant stated that no part of any tree has caused any damage to any of his property nor has any injury occurred as a consequence of the trees. This was confirmed by the respondent. The applicant stressed the main concern is that whole tree failure could happen and that this fear causes his wife an unacceptable level of anxiety.

13 The parties stated they had each received arboricultural advice in the past however neither party tendered any arboricultural evidence.

14 With the expertise I bring to the Court I noted that the three trees are healthy, there is very little dead wood (and none of a size to cause concern), and there are no obvious structural defects in the trunks or main branches of any tree. There are no signs around the root plates, or any other signs (such as abnormal leaning) that would indicate the likelihood of whole tree failure within the foreseeable future.

15 The parties advised that the prevailing winds are generally from the southwest and the west. I note that this is not in the direction of the applicant's property. I also note that the trees are not on an exposed ridge but are in a relatively protected area, particularly from the nominated prevailing winds.

16 In regards to the applicant's fears that something may happen, while I acknowledge this, in the words of Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 "something more than a theoretical possibility is required in order to engage the power under [the Trees Act]"...

17 The Court can give little if any weight to failures of other trees in unknown circumstances.

18 Therefore on the evidence before me and in the particular circumstances of this matter, I am not satisfied that any of the trees has caused, is causing, or is likely in the near future to cause damage to the applicant's property or cause injury to any person. As s 10(2) is not met, the Court has no jurisdiction to make any orders for any interference with any of the trees.

19 Therefore, the Orders of the Court are:

(1) The application is dismissed.

_____________________

J Fakes

Commissioner of the Court

Decision last updated: 08 August 2012