Byrnes v Ryan

[2021] NSWLEC 1076

Land and Environment Court

New South Wales

Medium Neutral Citation:

Byrnes v Ryan [2021] NSWLEC 1076

Hearing dates:

3 December 2020

Date of orders:

23 February 2021

Decision date:

23 February 2021

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury

Legislation Cited:

Civil Procedure Act 2005

Dividing Fences Act 1991

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Awad v Hardie (No 2) [2010] NSWLEC 1258

Barker v Kyriakides [2007] NSWLEC 292

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

AS4373-2007 Pruning of Amenity Trees

Mid-Coast Council Development Control Plan

Category:

Principal judgment

Parties:

Barbara Byrnes (Applicant)
Rosemary Ryan (First Respondent)
David Ryan (Second Respondent)

Representation:

Counsel:
B Byrnes (Litigant in person) (Applicant)
K Abbotts (Solicitor) (Respondents)

Solicitors:
Bromhead Legal (Respondents)

File Number(s):

2020/249821

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Mrs Byrnes, in relation to a Harpephyllum caffrum (Wild Plum) (the tree) and a Syagrus romanzoffiana (Queen Palm) (the palm), located in the adjacent neighbouring property.

Background

2. Mrs Byrnes (the applicant) and Mr and Mrs Ryan (the respondents), share a side boundary between their properties. The applicant’s property is located on the southern side of the respondents’, and both are frontline coastal properties in Forster, on the NSW mid-north coast.

3. On 19 October 2020, the Land and Environment Court (LEC) granted leave for the applicant to amend the second respondent’s name from John Ryan to David Ryan, pursuant to s 64 of the Civil Procedure Act 2005.

4. The respondents purchased their property about ten years ago, at which point the tree and the palm were already established in the rear yard. They initially rented it out, and occupied the property in 2016.

The onsite hearing

5. All parties attended the hearing, and Mr and Mrs Ryan were represented by Mr Abbotts of Bromhead Legal.

6. Initially, an inspection of the respondents’ rear yard was undertaken. The base of the tree’s trunk is located about 30 cm from the common boundary, and about 2.5 metres from the back fence. The palm is the largest of a group of palms of varied species, which are growing close to the respondents’ house, a few metres from the common side boundary. Under the Act, palms are considered to be trees.

7. The common boundary is delineated by a wooden fence, which was built prior to the applicant’s 20 years’ occupation of her property. Mrs Byrnes contended that this fence was not constructed along the ‘true’ boundary line, and claimed to have had the boundary surveyed, but that the surveyor “did not want to provide a survey until after the judgment in relation to the tree was finalised.” This is an unusual scenario, to say the least, and the fact remains that the applicant provided no survey diagram to substantiate her contention.

8. The respondents were of the opinion that the fence was correctly aligned, and said that no issue regarding this shared boundaries’ location had arisen out of the property searches undertaken as part of their purchase, nine years prior. They alleged that the same surveyor that the applicant referred to had confirmed that the fence was located correctly, relative to the boundary.

9. An inspection of the junction of the common boundary fence with the ‘back’ fence at the rear of the properties, led me to conclude that the common fence had been in situ, apparently without alteration of position, for many years, and it was likely installed long before the respondents’ occupation.

10. As per s 4(3), for the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land. Regardless of overhang, any issue of ambiguity as to whether the tree is “wholly or principally” on the respondent’s land is determined through a survey of the location of the base of the tree with respect to the boundary (see Awad v Hardie (No 2) [2010] NSWLEC 1258).

11. In the absence of a survey diagram, there was no evidence provided by the applicant, to support her contention that this fence was not located approximately on the boundary line. As the closest part of the tree base is about 30 cm from the existing fence, even if the fence was significantly misaligned, I am still satisfied that the tree is located “wholly or principally” on the respondents’ land, for the purposes of the Act.

12. The tree is mature, but exhibited a stunted form, likely due to reduced function resulting from repeated heavy pruning, and perhaps also from the impact of coastal winds. It stands approximately ten metres tall, with a canopy spread of about ten metres. While the tree’s short trunk is quite straight, and its canopy is fairly symmetrical, some branches extend beyond the common boundary by about four metres, and they are growing above parts of Mrs Byrnes’ garden and rear lawn, and near her metal ‘span line’ roof.

13. While the applicant suggested that the respondents’ palm fronds also overhang her property, and took the Court to a photograph in her submitted documents to substantiate this opinion, from my inspection along the boundary line, from the front of the property, I concluded that the fronds currently reach close to the boundary, but do not overhang, and, if they do at all, it is by a few centimetres only.

The applicant’s case

14. While Mrs Byrnes’ application does not specify proposed orders, the respondents’ affidavit notes at page nine that the applicant requested the tree be trimmed or “gone”, at the preliminary hearing of 19 October 2020.

15. The applicant submitted verbally that the tree’s branches should not encroach beyond the common property boundary, that the tree was damaging her retaining wall, and that it should be removed, or at least, heavily pruned. She also indicated that she sought a further order pursuant to s 13A of the Dividing Fences Act 1991.

16. The applicant claimed that seeds from the encroaching tree branches, and perhaps also the palm, drop and/or blow onto the span line roof, and into its gutters. She added that she has had to pay to have these gutters cleaned twice in the last year. The applicant noted that the purple flowers drop onto her washing and stain her clothes, as well as her white tiles. She reported that a fencing contractor advised her that the common fence had been damaged by the tree, and that any fence repairs that may be needed, could not be undertaken unless the tree was removed first.

17. The applicant also claimed that the tree presented a significant risk of injury, particularly during high winds, which she alleged this coastal property is often subjected to.

The respondents’ case

18. The respondents seek that the tree be retained, and resist the applicant’s claim for removal or heavy and/or regular pruning.

19. The respondents note various environmental services that they gain from the tree, such as shading, and privacy from properties higher up the sloping land, to the west. They also appreciated the birds that visit the tree for food or habitat. Mrs Ryan opined that the tree does not drop much debris and that the benefits provided by the tree exceeds any inconvenience related to leaves, sticks or fruit, falling from them.

Jurisdictional requirements

20. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

21. The Court is obliged to consider a number of matters pursuant to s 10 of the Act.

22. As required by s 10(1)(a), I am satisfied that there has been a reasonable attempt by the applicant to reach agreement with the owners of the land on which the tree is situated. Ms Byrnes provided evidence of requests for pruning of the tree, and ongoing written and verbal negotiations with the respondents, notwithstanding that the relationship has been acrimonious.

23. The applicant submits that the tree should not be allowed to extend beyond the boundary and grow over her property, and asserted, in summary, that the law says that if the tree extends over the fence, she is entitled to cut it, and that the respondents’ should pay for such work.

24. The applicant claimed that the Mid-Coast Council (Council) Tree Preservation Order allowed for any branches overhanging her property to be cut to the boundary without permission. The Mid-Coast Council Development Control Plan (DCP), however, notes that permission is required for this tree species, except when such pruning constitutes less than 10% of the tree’s canopy, and is not repeated within five years. This tree is not on the ‘Exempt species’ list in this Council area, though the Queen Palm is. The applicant repeatedly claimed that by allowing their tree to encroach over her land “means that the respondents are getting to have two back yards”, their own, and hers.

25. The respondents contend that this pruning is unnecessary, as these branches, and anything that may fall from them, cause negligible damage. Unsurprisingly, where parties have such polarised views about tree management, the interaction between the parties often becomes more personal and bitter, as has occurred here.

26. The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned:

(a) has caused, is causing or is likely, in the near future, to cause damage to the applicant’s property, or

(b) is likely to cause injury to any person.

Dropping debris

27. The applicant claims that leaves, flowers, seeds, bark and small sticks drop onto her ‘span line’ roof, and into its gutters. She claims that this debris stains her washing on her clothesline, and stains her tiles, but provided no evidence to support this. She repeatedly stresses that the tree branches, and palm fronds, should not encroach over her property.

28. Mrs Byrne is perhaps interpreting this situation with reference to common law which applied prior to the enactment of the Act.

29. At [35]-[40] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, (Robson), Preston CJ provides context for differentiation between these two regimes. In common law, encroachment is normally covered under the tort of nuisance, and at [54]-[58] of Robson, his Honour explains the different “Kinds of private nuisances”.

30. At [169]-[171] of Robson, his Honour notes,

“169 At common law, although damage is necessary to complete the cause of action in nuisance, the type of damage required varies depending on the kind of nuisance involved. For nuisances of the first kind, causing encroachment as by roots and branches of trees, actual damage to the land (including property attached to or inherent in the ground) must be proved: see paragraph 56 above. For nuisances of the second kind, causing physical damage, actual physical damage to land (including property attached to or inherent in the ground) is also required: see paragraph 67 above. For nuisances of the third kind, causing unreasonable interference with the use and enjoyment of the neighbour’s land, however, no actual financial loss or injury to health need be involved. The damage consists of the annoyance and discomfort caused to the occupier of the neighbouring land, such interference being of a material character: Clerk & Lindsell on Torts,19^th ed, Sweet & Maxwell, London, 2006, [20-27], p 1178.

170 The types of actual damage required at common law for nuisances of the first and second kind would also constitute “damage to property on land” within s 7 of the Trees (Disputes Between Neighbours) Act 2006, with the possible exception noted earlier (at paragraph 166) that damage to the surface layer of the land may not be damage to property on land.

171 However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not “damage to property on the land” within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour’s land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.”

31. The Court has published a Tree Dispute Principle at [20] in Barker v Kryiakides [2007] NSWLEC 292 (Barker) which states at [20] that:

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

32. Based on my inspection on site, this case is not extra-ordinary, and the Tree Dispute Principle in Barker applies here. The damage reported and observed is considered minor, and the required maintenance to clear leaves, seeds, flowers and small sticks from around the applicant’s house, yard, and gutters is reasonable.

33. Though this causes annoyance or discomfort to the applicant, no remedy is available under the Act, and thus this element of the application is dismissed.

Retaining wall and fence damage

34. The applicant claims that the tree’s roots are likely to damage her double brick retaining wall, located close by, in the near future, or that they are already causing damage.

35. My inspection of the wall revealed no sign of damage; no cracks, uplift, subsidence or lateral heaving. The applicant did not guide the Court to any signs on or near the wall to provide evidence to support her claim.

36. The respondents claimed that a retaining wall had been built on the common boundary, when the applicant’s yard was originally excavated and levelled, so as to support the soil in their yard, which was over one metre higher than the applicant’s yard, subsequent to the excavation. They submitted that the applicant’s wall was thus not bearing much load or pressure from their land or tree, and that roots from the tree would mainly be confined to their land, behind this boundary retaining wall. They, however, also provided no plans or other evidence in support of this claim, and neither party undertook any soil excavation so as to provide evidence to substantiate their respective arguments.

37. Given that the onus is on the applicant to prove their case, in the absence of evidence, I am not satisfied that the tree has caused damage to the applicant’s brick retaining wall, nor that it is likely to cause damage to this retaining wall in the near future. The near future is considered to be about 12 months (Yang v Scerri [2007] NSWLEC 592 (Yang)).

38. The tree is located about 30cm from the common timber paling boundary fence. The applicant claimed that the tree had damaged, and/or was damaging, this fence in the area close to the tree, and that the fence needed replacement. She advised that a fencing contractor had confirmed that the tree was damaging the fence.

39. The applicant acknowledged that this fence predated her occupation of her property about twenty years ago. Beyond normal wear and tear, to be expected with a timber paling fence of at least twenty years of age, I observed no obvious distortion, bowing or other fence damage in proximity to the tree. While some minor maintenance may be needed here and there along the fence, consistent with its age, it appeared to be quite sturdy and straight, and not in need of replacement.

40. Given my finding that the tree has not caused damage to the fence, and does not appear likely to in the near future, there can be no orders made for replacement of the fence under s 13A of the Dividing Fences Act 1991.

41. Overall, Mrs Byrnes’ claims that the tree has caused, is causing, or is likely in the near future to cause damage to her brick retaining wall, and to the timber dividing fence, are not supported by evidence, and this aspect of her application is also dismissed.

Risk of Injury

42. The applicant claims that the tree and palms present a genuine risk of injury. She contends, in summary, that she spends a lot of time in the backyard, and that if the tree or palm falls downs, or a branch falls off the tree, there is a high likelihood of injury, or damage.

43. Mrs Byrnes contends that the tree, and particularly the palms, blow around a great deal in the wind, and that she is frightened of both the movement and associated noise. While I do not doubt that this is the case, particularly given the properties’ front line coastal position, none of these fears and concerns can lead to a finding of risk of injury under the Act, without sound and appropriate evidence to support them.

44. Using the guidance decision published in Yang, with respect to injury, the Court considers the risk posed by a tree based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

45. No evidence of previous injury caused by the tree, was provided by the applicant, nor were there any obvious signs on the tree, of past branch breakage. The respondent submitted that the Council’s Tree Preservation Officer, Mr Duncombe, had indicated that the tree is not dangerous.

46. Harpephyllum caffrum are generally a long-lived tree, they are normally well anchored in the soil, and are not particularly prone to fungal decay.

47. Many palm species are particularly resistant to trunk breakage or uprooting in response to strong winds. This is the case with this Queen Palm, the tallest and largest of the group. There are no visible faults on its trunk that arouse concern.

48. Tree roots generally grow laterally away from the trunk base, in response to the environmental forces exerted upon them, in a loosely radial pattern. They often spread well beyond the tree’s canopy, and are usually found fairly close to the surface, as they need to access oxygen for respiration. Stability in the soil is a product of the cumulative shear resistance of this web of roots.

49. Given their locations, the tree and palms have sufficient soil volume to develop a root system which is adequate for anchorage in the surrounding soil.

50. When healthy trees grow in response to prevailing winds, they produce extra growth (reaction wood), as and where needed, in both roots and branches, in order to optimise strength.

51. When trees have insufficient or inadequate root systems, there are normally signs around their bases, and in the proximal surrounding soil, which an arborist may interpret, such as soil heaving and lifting, or cracks in the soil. Based on the arboricultural expertise which I bring to the Court, I saw no such indicators near the tree or palms.

52. There are thus no obvious characteristics of the tree or palms that cause concern with respect to risk of injury, and the applicant provided no formal risk assessment to support this claim. There are no apparent signs of structural weakness in the trunk of the tree or palms, nor issues with structural stability. There are no obvious faults at branch junctions, nor a reported history of failures of overhanging branches, nor near misses.

53. On stormy or windy days, when branches are more likely to break from trees, occupancy outside buildings is usually much lower than normal, and the risk to people, therefore reduces accordingly.

54. Overall, there is a complete absence of evidence to support a finding that the risk of injury is probable or likely. Returning to the guidance provided in Yang with respect to injury, the risk posed by this tree, based on its characteristics, any history of previous failures, and the circumstances of the site apparent at the time of the hearing can only be viewed as low, which is an acceptable risk.

42. Mrs Byrnes’ claim under the Act with respect to likelihood of injury is thus also dismissed.

43. Therefore, with s 10 not satisfied, with respect to damage or injury, I have no jurisdiction under s 7 of Pt 2 of the Act, to make any orders for intervention with the tree, or the palm.

44. As this application is thus set aside, there is no requirement to consider the discretionary matters in s 12 of the Act. There are, however, some elements under s 12, which deserve consideration.

Discretionary matters – s 12

58. In making an order, the Court considers relevant matters in s 12 of the Act.

• The tree is located in the respondents’ property about 30 cm from the common side boundary (subs 12(a)).

• With respect to removal or pruning, the tree is protected by Council’s DCP (subs 12(b)).

• With respect to subs 12(b2), past pruning of the tree has been excessive, and this is inappropriate in terms of tree health, and longevity. Any removal of leaf cover by pruning, or any other means, reduces a tree’s capacity to optimise photosynthesis. This reduces the tree’s potential carbohydrate (food) supply, which is necessary for a range of essential functions. Pruning should therefore not occur as part of ‘normal’ maintenance, but should be undertaken only when necessary to achieve a required purpose. Little, or no pruning of overhanging branches is required in this case. Previous pruning was also inappropriate, and of poor quality, and failed to satisfy the guidance provided in AS4373-2007, Pruning of amenity trees. Ideally, this Australian Standard should be followed, regardless of whether Council permission is required for pruning.

• The tree contributes to privacy, to protection from the sun, to landscaping, and to the amenity and scenic value of the respondents’ land (subss 12(b3), (e)).

• Because of its flowering and fruiting characteristics, the tree may provide food and or shelter for local fauna, and thus contribute to local biodiversity (subs 12(d)).

• The tree is likely to be providing benefit to soil stability, and to reducing localised water accumulation (subs 12(g)).

Conclusion

59. I have examined the tree and the site and have reached the following conclusions:

1. The onus is on the applicant to prove her case by submitting evidence, which meets the requirements of the Act. No valid evidence of previous or current damage to the applicant’s property, has been provided, to the satisfaction of the Act, nor am I satisfied that damage in the near future is likely.

2. Based on my inspection, there are no obvious characteristics related to the tree, the palm, or the site, nor any evidence of actual injury or likely injury provided by the applicant, that supports a finding of risk of injury. The level of risk from the tree is considered low, and acceptable.

3. Even if any, or all of the evidence provided was deemed to constitute previous or current damage, or damage in the near future, or risk of injury, s 12 of the Act stipulates a requirement for this to be measured against the environmental services and benefits provided by the tree.

4. The requirements of s 7 of Act have therefore not been satisfied, and no orders for intervention with the tree can be made by the Court.

Orders

60. The Court orders that:

1. The application is dismissed.

………………………….

J Douglas

Acting Commissioner of the Court

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Decision last updated: 23 February 2021