Bowler v Mackney

[2022] NSWLEC 1250

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bowler v Mackney [2022] NSWLEC 1250

Hearing dates:

30 November 2021

Date of orders:

13 May 2022

Decision date:

13 May 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [31]

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application concerning damage – whether neighbouring trees have damaged the applicant’s property – whether trees are likely to cause damage or injury

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 7, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Freeman v Dillon [2012] NSWLEC 1057

Texts Cited:

Australian Standard 4373:2007 ‘Pruning of amenity trees’

Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’, 2016

Category:

Principal judgment

Parties:

Kenneth Frederick Bowler (Applicant)
Lorraine Beryl Mackney (Respondent)

Representation:

K Bowler (Self-represented) (Applicant)
L Mackney (Self-represented) (Respondent)

File Number(s):

2021/263520

Publication restriction:

No

Judgment

Background to the application

1. ACTING COMMISSIONER: Neighbours Kenneth Bowler (the Applicant) and Lorraine Mackney (the Respondent) live in Corlette, in the Port Stephens region. Several trees on Ms Mackney’s property are close to their common boundary. Mr Bowler says the trees have damaged his property and threaten further damage or injury. He has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for Ms Mackney to remove the trees. He also seeks orders for Ms Mackney to pay compensation for damage and for the costs of his application to the Court.

2. The orders that Mr Bowler seeks are orders the Court can make at s 9 of the Trees Act. However, Commissioners of the Court do not have the power to order costs, so if Mr Bowler wishes to pursue that order, he would need to file a Notice of Motion to be heard by the Registrar or a Judge of this Court.

3. The hearing took place via MS Teams on 30 November 2021, with both parties self-represented. With the information before me, I have been able to make this decision without the need for a site view.

Framework for this decision

4. Before making orders under Pt 2 of the Trees Act, the Court must be satisfied at s 10(1) that the Applicant has made a reasonable effort to reach agreement with the trees’ owner. The Court must also be satisfied at s 10(2) that the trees have caused, are causing, or are likely in the near future to cause, damage to the Applicant’s property, or are likely to cause injury to a person.

Reasonable effort to reach agreement

5. Mr Bowler and Ms Mackney have discussed the trees over the years. Mr Bowler has raised issues regarding the trees’ potential to damage his property, as well as termite damage, risk of fire, erosion around the trees, debris falling from the trees, damage to his television antennas and risk posed to his family members. He has offered to prune the trees. In June 2021 Mr Bowler wrote to Ms Mackney outlining these issues. Mr Bowler provided a history of his attempts to resolve the tree issues (in Exhibit B). The parties dispute several elements of this history. Although they have been unable to agree on an outcome, I am satisfied that Mr Bowler’s efforts to reach agreement were reasonable.

The trees

6. Mr Bowler’s application includes eight trees, shown at Question 2 of his Tree Dispute Claim Details (Form H, Exhibit A): three very close to the common boundary and a shed on his property, and five more trees set back from the boundary. The trees appear to be naturally occurring, rather than planted garden specimens.

7. Stephen Williams, a qualified arborist at Hunter Horticultural Services, assessed the trees for Ms Mackney. In his report of 17 October 2021 (Exhibit 5) he described two trees close to the common boundary, both broad-leaved paperbarks (Melaleuca quinquenervia):

• Tree T1, approximately 300 mm from the boundary fence, 16 metres tall with a stem diameter at breast height (DBH) of 570 mm;

• Tree T2, approximately 16 metres tall with two stems from ground level, their diameters 590 mm and 390 mm.

8. The two stems of tree T2 in Mr Williams’ report have been identified in Mr Bowler’s application as two separate trees (‘T1’ and ‘T2’ in the application). Mr Williams’ T1 is ‘T3’ in Mr Bowler’s application. As there are only two trees adjacent to the boundary, I will use Mr Williams’ numbering throughout this judgment.

9. Mr Williams described the other five trees (T4–T8 in Mr Bowler’s application) as four more Melaleuca quinquenervia and one Eucalyptus robusta, approximately 2 metres further back from trees T1 and T2. All eight trees are healthy. The stem of T4 leans toward Mr Bowler’s property.

Have the trees caused damage?

Antenna

10. Mr Bowler submitted that Ms Mackney’s trees have damaged his television antenna. He has not provided any evidence that demonstrates this. Ms Mackney provided a letter (Exhibit 3) from Andrew Heddergott, of Corlette Digital Antennas, in which Mr Heddergott expressed an opinion that Ms Mackney’s trees were unlikely to damage Mr Bowler’s antenna. I give that letter little weight, as the risk of tree failure is outside the author’s professional area. Nevertheless, the onus is on Mr Bowler to demonstrate that trees have damaged his antenna and, given the lack of evidence to support this, the Court cannot be satisfied that this has occurred.

Dwelling

11. Mr Bowler submitted that Ms Mackney’s trees have damaged his dwelling, by their debris blocking his gutters, and by their proximity to his dwelling. He provided quotes – one from Grant Dawson (Exhibit E), one from builder Chris Roberts (Exhibit C), and another from Coastal Building and Maintenance Pty Ltd (Exhibit D) – to replace elements of his dwelling including a laundry door and door jamb, guttering, downpipes, a window frame, and rotted structural beams and posts. Those quotes provide no evidence identifying causes for the condition of these items. A further quote (Exhibit F), from Hinchey Building Contractors, included the following:

“On inspection of [applicant’s address] it is evident that there has been significant damage from an accumulation of vegetation, which has fallen from overhanging trees, in particular on the southern side. This shadowing effect from the vegetation has also had impact on the woodwork around the property which has evidence of significant wood rot.

It would be advisable to cut back the majority of this overhanging tree canopy prior to new work commencing. Also installation of a quality gutter guard system is suggested.”

12. Mr Bowler relied on this quote to support his submission that Ms Mackney’s trees have caused property damage.

13. Ms Mackney engaged Ian Walton Carpentry and Handyman Services to assess and report on the damage to Mr Bowler’s dwelling (Exhibit 4). Mr Walton found that structural beams and other elements, including a door frame, were rotted out as a result of poorly fitted gutters, gutter guard and downpipes. Gutters blocked with leaves and debris were in poor condition, resulting in water overflowing onto parts of the dwelling.

14. On my reading, the quote of Hinchey Building Contractors and the report of Ian Walton have reached similar conclusions, both finding that debris from the trees has blocked gutters. The debris has contributed to the gutters’ deterioration. Water overflowing from the gutters has caused damage to parts of Mr Bowler’s dwelling. Overshadowing from the trees may have slowed any drying out of the wetted parts of the dwelling. The damage was therefore preventable, had gutter guard and gutters been cleaned and maintained. The Court established a principle in Barker v Kyriakides [2007] NSWLEC 292 (Barker) at [20]:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

15. If Ms Mackney’s trees have caused damage to Mr Bowler’s dwelling, I find that such damage might have been prevented by Mr Bowler carrying out reasonable property maintenance. Relying on the principal in Barker, I will not make any orders on this element of the application.

Is damage or injury likely?

Tree failure

16. Mr Bowler emphasised two conditions that might cause Ms Mackney’s trees to fall onto his property. Firstly, he pointed out that some trees, and in particular trees T1 and T2, grow across the common boundary and above his property. Not only do their limbs extend several metres over his property, the stem of one tree leans towards his property. Mr Williams found both T1 and T2 had asymmetrical canopies with limbs extending above Mr Bowler’s property, but the risk of damage to the property was low. He probed the union between tree T2’s two stems and found it was structurally stable. Nevertheless, Mr Williams recommended some pruning to reduce risk and to increase clearance between the trees and Mr Bowler’s property.

17. Tree T4 is further from the boundary than T1 and T2 but leans toward Mr Bowler’s property. As a result, it too has branches over his property. Otherwise, its condition appears to be similar to others.

18. The second feature of concern to Mr Bowler is, as he described, erosion of the ground around the trees and the wash-out of soil around the trees. He submitted that other nearby trees have fallen over recently due to wet soil conditions. Mr Bowler provided a copy of a brief email (Exhibit H) from Callum Lund, a level 3 arborist, who wrote:

“The trees are mature and have evidence of shedding limbs, i'm [sic] of the opinion the three melaleucas along the fence line pose a significant risk to the small shed as well as the rear corner of the dwelling located on [applicant’s property address].

The area directly behind the 2 properties mentioned is a wet land [sic] and as such has a very high natural water level, this will mean the roots are only able anchor themselves quite shallow leading to a high risk of up rooting [sic]. With this in mind i would recommend compete removal of the 3 trees in question as well as directional pruning of the remaining trees to reduce risk of up rooting and reduce damage if up rooting did occur [sic].”

19. Although Mr Bowler described the soil around the trees as being washed away, Mr Lund has not mentioned this. Mr Williams found no problems with the trees’ root zones. A photo on page 8 of his report shows the soil around the trees to be undisturbed.

Fire

20. In December 2018 a large bushfire, one of many at the time, burned in the area and came close to the Bowler and Mackney properties. Along with other members of a Fire and Rescue NSW Firefighters’ brigade, Mr Bowler fought the fire and helped protect these properties. Mr Bowler is concerned that Ms Mackney’s trees present an ongoing fire risk to his property.

21. Both parties provided copies of correspondence from the NSW Rural Fire Service (RFS). Mr Bowler has an email from the RFS on 15 October 2021 (Exhibit J); Ms Mackney’s email from the RFS is dated 20 October 2021 (Exhibit 2). Both emails are informative, responding to queries from each party. Each email informs its recipient that, should they be concerned about a fire hazard near their property, the RFS can provide advice. A property owner can make a formal complaint about a potential fire hazard. The RFS will assess the hazard and, if needed, issue a Bushfire Hazard Reduction Notice to landowners and managers to reduce hazards. If the directions in such a notice are not followed, the RFS can remove the hazard and recover costs from the landowner.

22. The RFS’ email to Ms Mackney also confirms that, as of 20 October 2021, they had no record of any hazard complaint for her property.

23. Apart from Mr Bowler’s concern regarding the proximity of Ms Mackney’s trees to his property, he has provided no evidence that they are likely to damage his property. The proximity of vegetation to a dwelling can affect bushfire risk to the dwelling, and as a result the ‘10/50 Code’ allows clearing of trees within 10 metres of a dwelling in a bushfire zone without needing council consent. While Ms Mackney might be able to remove the trees without council consent, she is not required to do so.

Findings

24. I understand Mr Bowler’s experiences during the 2018 bushfires must have been intense and traumatic, but I found he was inclined to exaggerate. He wrote (at Question 31 of the Tree Dispute Claim Details Form) that an officer from Port Stephens Council (Council), who assessed a tree (it is not clear which tree) in 2015 in response to a tree removal application, had deemed the tree dangerous and at risk of falling. In fact, Council issued a ‘Notice of Determination of Exemption’ on 25 November 2015 (Exhibit G) stating that the inspected tree did not require Council’s consent to remove because it was within 5 metres of a wall of a structure. The notice includes no other findings regarding the tree. The wording Mr Bowler refers to comes from the application form for tree works, dated 29 September 2015. It is not clear if Mr Bowler or Ms Mackney lodged the application, as it has been redacted in Exhibit G. At the ‘Details of Proposed Work’ section of the form, the applicant wrote “Trees to be looked at for health and safety. Removal or thinning if deemed a problem.” The applicant ticked the checkbox for “Remove tree(s) that present a risk to person or property”. At the section for reasons, the applicant wrote: “… concerns that the trees will fall on … property.” The wording referred to by Mr Bowler is that of the 2015 tree removal applicant, not Council’s tree officer.

25. Mr Lund’s brief email describes general conditions at the rear of these properties, but makes no direct observations regarding the subject trees’ root systems. Mr Williams’ report demonstrates a more detailed inspection of all parts of trees T1 and T2 that could be observed through a ground-based inspection. Nothing in the report indicates failure of the trees’ root-plates is likely. This finding extends to other trees including T4.

26. Mr Williams noted the trees’ asymmetrical canopies. Mr Bowler measured the branch extension over his property as 6.8 metres (T1) and 10 metres (T2). Such long branches are prone to fail, and if they did so, some damage to Mr Bowler’s shed or dwelling would result. Mr Williams recommended some remedial pruning to reduce the trees’ crowns above Mr Bowler’s property. The pruning is reasonable and would reduce the risk. Apart from crown reduction, dead branches above Mr Bowler’s property should also be removed. Due to its lean, tree T4 also extends toward and over Mr Bowler’s property. Orders will be made to prune trees T1, T2 and T4.

27. While the trees might contribute to bushfire risk, damage caused by fire is distinct from damage caused by trees, so does not clearly fall within the jurisdiction of the Trees Act: Freeman v Dillon [2012] NSWLEC 1057 at [86]. No orders will be made here on this element of the application. Correspondence from the RFS explains a process for addressing nearby bushfire hazards. Apparently Mr Bowler has not yet pursued that option.

28. Mr Bowler referred to termite damage to his property, but provided no evidence that termites are present in Ms Mackney’s trees. Furthermore, damage by termites is distinct from damage caused by trees and does not fall within the jurisdiction of the Trees Act.

Consideration of relevant matters

29. I have considered all relevant matters at s 12 of the Trees Act. The trees have positive attributes, contributing amenity to Ms Mackney’s property and making a contribution to local environmental values. Pruning to reduce the likelihood of branch failure would not significantly diminish the trees’ values, nor shorten their useful life expectancies. Apart from the apparently poor nature of the relationship between the parties resulting in no action being taken thus far, neither one’s actions have contributed to the risk of tree or branch failure. I see no issue that would persuade against orders for pruning the trees.

Conclusion

30. Based on the foregoing reasoning, orders will be made to prune T1, T2 and T4 to mitigate the risk of limbs falling and damaging Mr Bowler’s property. Pruning will include crown reduction and removal of deadwood. There are no grounds for making orders on other elements of Mr Bowler’s application. Mr Bowler has not contributed to the risk of limb failure, so as is usual in these matters the trees’ owner, Ms Mackney, will pay for the pruning works. On the information available, it seems that consent would not be required for pruning the trees; therefore it is open to Mr Bowler to carry out minor reduction pruning over his property, so I see no need for ordering ongoing pruning at regular intervals. Mr Bowler will be required to give access to his property for the pruning works to be carried out.

Orders

31. As a result of the foregoing, the Court orders:

1. The application is granted to the extent of the orders below.

2. Within 60 days of the date of these orders the Respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to prune trees T1 and T2 (trees ‘T1–T3’ in the application) and T4 to remove all deadwood greater than 40 mm in diameter above the Applicant’s property and to reduce their crowns where they extend over the Applicant’s property by up to 15% total crown mass, including removal of branches as shown in photographs on page 8 of Mr Williams’ report (Exhibit 5).

3. All works are to be done in accordance with the guidelines of the Safe Work Australia 2016 ‘Guide to managing risks of tree trimming and removal work’ and AS4373 ‘Pruning of amenity trees’.

4. The Respondent is to give the Applicant 7 days’ notice of the works ordered above.

5. The Applicant is to allow any access required to complete the works ordered above during reasonable hours of the day.

6. The exhibits are returned other than exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 13 May 2022