Land and Environment Court New South Wales

• Medium Neutral Citation: Shanks & anor v McNaught & anor; Shanks & anor v Hammond & anor [2012] NSWLEC 1299
• Hearing dates: 26 October 2012
• Decision date: 26 October 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Applications upheld in part.

20779 - Removal of one tree ordered.

20780 - Pruning of dead wood ordered

• Catchwords: TREES [NEIGHBOURS] Future damage to property or potential injury
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Yang v Scerri [2007] NSWLEC 592; Robson v Leischke [2008] NSWLEC 152
• Category: Principal judgment
• Parties: P & E Shanks (Applicants) - both matters; H & E McNaught (Respondents) - 20779 of 2012; G & A Hammond (Respondents) - 20780 of 2012
• Representation: Applicants: P & E Shanks (Litigants in person) - both applications; Respondents -20779 of 2012: H & E McNaught (Litigants in person); Respondents - 20780 of 2012: Philip Boyce (Solicitor); Respondents - 20780 of 2012: Philip Boyce & Associates
• File Number(s): 20779 of 2012; 20780 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: These are two applications made by the owners of a property in Bowral against the owners of trees growing on two adjoining properties. The Court's practice in these situations is to hear the matters concurrently.

2 Both applications are made under s 7 Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

3 The applicants' concerns are that the nominated trees on each of the respondent properties could fail either fail completely, or branches could fall from them, onto their property thus potentially causing damage or injury. The applicants are concerned that trees may fall onto their property in windy conditions irrespective of the direction they may be leaning.

The trees

4 The trees nominated in both applications are all Pinus radiata (Monterey Pine).

5 It appears as though the trees once defined a carriage loop on land that originally formed part of the property now owned by the Hammonds. The Hammond's dwelling was built in 1889 and the trees are thought to be about 100 years old.

6 Most of the trees on the eastern side of the carriage loop remain and are located on the western boundary of the Hammond's property. At some stage the land was subdivided. A number of trees that formed the western side of the carriage loop remain on what is now the McNaught's property. All pines were removed from the applicants' property which is to the south of the McNaught's property and to the west of part of the Hammond's property.

7 In general, the trees are over-mature or senescent. Some have died and are still standing; others have been removed to large stumps. There appear to have been some failures on the Hammond's property.

The assessment process

8 In applications made under Part 2, the key jurisdictional test is satisfaction of s 10(2) of the Act. 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. This must be applied to each tree that is the subject of an application.

9 The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...".

10 As the applicants are 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 these matters. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s and the circumstances of the site apparent at the time of the hearing.

11 As no party engaged an arborist to provide an independent opinion, my assessment of the evidence is based on the expertise I bring to the Court. However, absent any reports or detailed investigations, my opinion is based on a visual inspection of the trees from the ground.

12 If any of the tests in s 10(2) are met, the Court's jurisdiction to make orders under s 9 is engaged. Section 9 enables the Court to make any order it thinks fit to remedy, restrain or prevent damage to the applicants' property or injury to any person. This requires consideration of relevant matters in s 12 of the Act.

The McNaught property

13 Dealing first with the McNaught application, the applicants seek orders for the removal of dead Radiata Pines at the respondents' expense, and or any other orders the Court thinks fit.

14 The claim form indicates four trees; of these Tree 1 (T1) and T4 are dead.

15 The McNaughts purchased their property in 2008. In about March 2010 they stated that the applicants approached them about pruning overhanging branches from the trees on the basis of providing more light to the studio in the applicants' back garden.

16 Around Easter 2010, the McNaughts engaged an arborist to remove the majority of the overhanging branches. This was done to the best of the arborist's ability however some high branches on T1 remain over the applicants' land.

17 The applicants contend that a dead branch from T1 fell onto their property about two years ago - apparently after the trees were pruned. No damage was caused and the applicants did not inform the respondents.

18 The applicants remain concerned that branches may fall and that any or all of the trees could fall onto their property.

19 It was mentioned at the hearing that the strongest prevailing winds generally come from the west. However, the applicants contend that despite this, trees can fall in any direction and without warning. They also contend that branches that fall from one tree may get caught in another and may cause damage or injury when they eventually fall to the ground.

20 I saw no signs that any of the four trees on the McNaught's property are likely to fall onto the applicants' property. Apart from T1, no part of any tree overhangs the applicants' land. T2, the next closest is leaning to the north-northeast and away from the applicants' property. Therefore I am not satisfied on the evidence before me that s 10(2) is satisfied for T2 or T3 and therefore the Court has no jurisdiction to make any orders for any interference with them.

21 Even though T4 is dead, no part of it is likely to cause any damage to the applicants' property or injury to anyone on the applicants' land in the foreseeable future. While it is possible that dead wood may fall from T4 and potentially injure anyone on the McNaught's property (thus satisfying s 10(2)), the McNaughts have not raised any concerns over their safety and clearly have used the services of an arborist in the past. Therefore as a matter of discretion afforded by s 9, no orders will be made in regards to T4.

22 In my opinion, the only tree that could cause damage in the near future or potentially injure anyone on the applicants' land is T1. This tree is within 1m of the dividing fence between the parties' properties and part of the dead canopy overhangs the applicants' studio and side path. Therefore as s 10(2) is satisfied for T1, the Court can consider what orders should be made.

23 In considering the relevant matters under s 12 of the Act, I note that the tree is wholly on the respondents' land but very close to the dividing fence. While pruning of dead branches is possible, in these circumstances, the most practical option is the removal of the entire tree as the tree will eventually need to be removed and deferring the inevitable can make it more difficult and dangerous for an arborist and therefore more expensive. While the tree may have had some heritage value as a part of a carriage loop, the integrity of the loop has gone and safety concerns must take precedence.

24 After considering the issues, I will make orders for the removal of T1 at the respondents' expense. For the purpose of the orders, it is sufficient to reduce the tree to a stump of 2m above the ground but nothing will prevent the McNaughts from having it removed to ground level should they so wish.

The Hammond property

25 In this matter, the applicants nominate 14 of the Hammonds' trees that are growing along the western boundary of the Hammonds' property. The applicants seek orders for the removal of all dead trees and the removal of all overhanging branches.

26 The applicants have owned their property for 32 years. In 1998 they built a studio in the north-eastern corner of their property. At this time they pruned overhanging branches from a number of the Hammonds' trees and effectively removed T3 to a large stump.

27 The applicants contend that about five years ago a tree fell onto their vegetable garden (located in the south-eastern corner of their property). The Hammonds dispute the contention that a whole tree failed but accept that it was likely a large section of a tree. Nobody could recall whether the tree/ section was dead or alive.

28 The applicants also contend that about 18 months ago a dead branch fell onto their vegetable garden however, the respondents are uncertain about this. It was not known from which tree the branch fell.

29 In the 32 years the applicants have owned their property only two substantial branches have fallen from the Hammonds' trees onto their property, however, the concerns expressed earlier in this judgment, regarding whole tree or branch failure, remain.

30 The Hammonds raised the jurisdictional test in s 10(1)(a) of the Act. This states that the Court must not make an order under Part 2 unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated.

31 In this regard, the Hammonds contend that in order to settle the matter they made an offer to remove seven dead trees to a height of 2m at their expense and allow the applicants' access for a tree contractor of the applicants' choice to remove overhanging branches from three trees at the applicants' expense. This offer was made via a solicitor's letter however, the applicants did not accept this offer and the matter proceeded to a hearing.

32 In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [191] - [196] discusses 'reasonable effort to reach agreement'. What one party considers to be a 'reasonable' effort is not necessarily perceived as reasonable by the other party. Amongst other things, the Chief Justice found that a reasonable effort to reach an agreement can be made at any time up until the Court determines the application.

33 In this regard, I am satisfied that s 10(1)(a) is satisfied and the substantive issues can be addressed and assessed against the tests in s 10(2).

34 There are more than 14 trees along the common boundary. They are largely contained within what is now a chook run in a large garden The Hammonds' dwelling is some distance from the trees.

35 The Hammonds also produced a plan showing the location of the trees however for the purpose of this judgment, the applicants' numbering system will be used. Some time was spent during the hearing determining which trees were 'in' and which were 'out'.

36 The trees are numbered from north to south. Of the 14 nominated trees I observed four to be overhanging the applicants' property. These are T1, T8, T10 and T13.

37 The western section of T1 consists of large dead and deteriorating branches. These partially overhang the pathway that runs along the northern and eastern boundary fences. In my view these branches could fail in the near future and cause damage to the applicants' property however, I saw nothing to indicate that the remaining living parts of the tree are likely to fail onto the applicants' property or cause injury to any person.

38 T8 is a large live tree about 1m from the common boundary fence. It bifurcates at about 3m above ground however the attachment between the stems appears sound. One part of the tree overhangs the applicants' property and there are some dead branches in that part that could cause damage (or potentially injury) should they fail. However, as with T1 there is nothing to suggest that the entire tree should be removed.

39 T10 is another large live tree close to the fence with some dead wood in the overhanging portions. As with T8, there is nothing to indicate the failure of the tree in the foreseeable future.

40 T13 is about 3m from the common boundary. The only overhanging parts are the tips of healthy branches. These only just overhang the applicants' property; the majority of the tree overhangs the respondents' property. In my opinion, there is no evidence to suggest that any part of this tree is likely in the near future to cause damage to the applicants' property or injury to any person.

41 Therefore, of the overhanging trees, s 10(2) is met for T1, T8 and T10 and orders can be considered for these trees.

42 Of the remaining trees, T3, T6, T9 and T11 are dead. In my opinion none of these trees are likely to fail onto the applicants' property. They are generally quite small or have been reduced to large stumps. While T3 is a large stump some 3-4m high which leans slightly towards the applicants' land, I saw no signs of likely failure in the foreseeable future. With respect to the safety of anyone on the Hammonds' property, the Hammonds have not raised any concerns in this regard and as stated above, the trees are generally contained within a large chook yard.

43 In this regard I find that s 10(2) is not satisfied to the extent required for Trees 3,6,9 and 11 and no orders can be made for any interference with them.

44 The remaining trees are T2, T4, T5, T7, T9, T12 and T14. In my view, I have no evidence before me to be satisfied that any or all of these trees is likely in the near future to cause any damage to the applicants' property or injury to anyone in the foreseeable future. All are leaning away from the applicants' land. Only T4 has a dead branch relatively close to the boundary however I consider its eventual failure to be unlikely to cause damage or injury. Therefore, as s 10(2) is not met for any of these trees no orders can be made for any interference with them.

Orders

45 Therefore as a consequence of my findings, the Orders of the Court are:

Matter 20779 of 2012

(1) The application is upheld in part.

(2) Within 90 days of the date of this judgment, the McNaughts are to engage and pay for an AQF level 3 arborist with appropriate insurance cover, to remove T1, being the tree closest to the dividing fence between the parties' properties, to a height of no more than 2m above ground level.

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

(4) The applicants are to provide all reasonable access for the work to be carried out in a safe and efficient manner on a minimum of two working days notice.

Matter 20780 of 2012

(1)The application is upheld in part.

(2)Within 90 days of the date of this judgment, the Hammonds are to engage and pay for an AQF level 3 arborist with appropriate insurance cover, to remove all dead wood 100 mm or more in diameter from all parts of T1, T8 and T10, as shown on the applicants' claim form that overhang the applicants' property to a distance of 3m inside the respondents' property.

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

(4)The applicants are to provide all reasonable access for the work to be carried out in a safe and efficient manner on a minimum of two working days notice.

________________________

J Fakes

Commissioner of the Court

Decision last updated: 31 October 2012