Byrnes v Ryan (No 3)

[2022] NSWLEC 1177

Land and Environment Court

New South Wales

Medium Neutral Citation:

Byrnes v Ryan (No 3) [2022] NSWLEC 1177

Hearing dates:

30 March 2022

Date of orders:

30 March 2022

Decision date:

30 March 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

See orders at [17].

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage or injury caused by trees – change of circumstances – orders for pruning

Legislation Cited:

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

Cases Cited:

Byrnes v Ryan [2021] NSWLEC 1076

Byrnes v Ryan (No 2) [2022] NSWLEC 27

Texts Cited:

AS 4373–2007 Pruning of amenity trees, Standards Australia 2007

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

Category:

Principal judgment

Parties:

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

Representation:

B Byrnes (Self-represented) (Applicant)
J Bristow (Solicitor) (Respondents)

Solicitors:
Finn Roache Lawyers (Respondents)

File Number(s):

2021/362007

Publication restriction:

No

Judgment

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

Background to the application

1. COMMISSIONER: A wild plum (Harpephyllum caffrum) (the tree) grows in the garden of Rosemary and David Ryan (the respondents) in the coastal town of Forster. The tree is close to the respondents’ common boundary shared with Barbara Byrnes (the applicant); branches on its southern side extend across the boundary and overhang Ms Byrnes’ land.

2. Ms Byrnes applied to this Court in 2020 seeking orders for the tree to be removed or pruned. Douglas AC dismissed the application, finding there was no reason to interfere with the tree: it had not caused damage, nor was it likely to cause injury or damage in the near future. Douglas AC’s reasons are explained in Byrnes v Ryan [2021] NSWLEC 1076.

3. After a branch fell from the tree into her garden, Ms Byrnes again applied to the Court in December 2021, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the tree’s removal, for replacement of the boundary fence, and for compensation for damage to a clothesline and a vegetable garden. The Ryans sought to have the application struck out, given that the Court had already determined the matter less than 12 months earlier. Moore J found that the fallen branch was not insignificant, therefore circumstances have changed and there was no reason for striking out Ms Byrnes’ application: Byrnes v Ryan (No 2) [2022] NSWLEC 27.

Framework for this decision

4. Before making orders under Pt 2 of the Trees Act, the Court must be satisfied at s 10(2) that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to injure a person. Given Douglas AC’s decision in 2021, matters considered in these proceedings should be limited to those arising from changed circumstances: for instance, any damage that resulted from recent branch failure, and the likelihood of further branch failure as a result of the tree’s changed crown structure. Other issues, such as debris falling into roof gutters, were dealt with by Douglas AC and are not reconsidered here.

5. The Court must also be satisfied that the Applicant has made reasonable effort to reach agreement with the trees’ owners (s 10(1)(a) of the Trees Act).

Reasonable effort to reach agreement

6. There has been some limited discussion between the parties, whose relationship is not harmonious. It was apparent at the hearing that there is little possibility of these neighbours reaching any agreement. I am satisfied that, to the extent possible, Ms Byrnes’ efforts were reasonable.

The tree

7. This wild plum tree is healthy, with only minor structural defects. Apart from recently fallen or removed branches, nothing has changed significantly since Douglas AC’s decision.

Has the tree caused damage?

8. The parties told different stories about the fallen branch. Ms Byrnes said that during a windy day she was outside when she heard a branch crack. The branch, which extended over her property, did not fall completely to the ground. She called the State Emergency Service (the SES). SES personnel came to her property and got the branch to the ground, where they left it. Ms Byrnes’ clothesline and vegetable garden were damaged. She said the fence was damaged too.

9. Mrs Ryan said she heard the conversation between Ms Byrnes and the SES personnel. She said the branch was not damaged when the SES was called, although she did not say she observed this – rather, it seemed to be an assumption. Mrs Ryan heard Ms Byrnes tell the SES personnel that she was worried the branch would fall and wanted it removed. The SES personnel told Ms Byrnes this would damage her clothesline and vegetable garden, and she then asked them to proceed.

10. Photographs do not support Mrs Ryan’s version of the story. Although she pointed to a photo of the branch that she says was cut by the SES personnel (left arrow, Figure 1 below), and I concede that branch was cut cleanly, above that is the wound of a broken branch (right arrow, Figure 1), the same size as the fallen branch seen lying on the ground (Figure 2) in photographs. Two of Mrs Byrnes’ photographs are copied here.

^{Figure 1: Two branch wounds. Figure 2: Fallen branch.}

11. I find it most likely that the SES personnel got the suspended, broken branch to the ground and in so doing cut some smaller branches. Removing undamaged branches is not within the SES’ usual scope of works.

12. If the tree branch caused damage to the clothesline, garden and fence, it is not clear whether this resulted from the branch breaking and becoming suspended, or as a result of the SES personnel getting the branch to the ground. The adduced evidence does not show that the branch caused damage when it fell. I also consider that the Ryans had no cause to remove the branch prior to its failure, given the Court’s earlier findings and decision. As a result, no compensation will be ordered.

13. The fence might be repaired, rather than replaced. The Ryans do not seek its replacement. A loose fence post, and displaced palings, could be fixed to form a functional fence in similar condition to the remainder of the fence. Any damage to this section of fence near the tree might equally result from Ms Byrnes’ clothesline, which was attached to the fence.

Risk of damage or injury

14. The recent loss of one long branch over Ms Byrnes’ property has now opened up the crown to different, and possibly greater, wind forces on that side. Another long branch over Ms Byrnes, dwelling is now more exposed. Its bark is a lighter colour than bark of the branch to which it is attached, suggesting this branch is of epicormic origin. That is, the branch is attached more weakly than an original, or non-epicormic, branch. Relying on my own arboricultural expertise and experience, I find this branch is likely to fail as a result of the recent change in circumstances. The risk can be mitigated by pruning.

15. Other issues raised by Ms Byrnes have not changed recently. They were all considered fully by Douglas AC in the Court’s earlier decision.

16. I have considered matters at s 12 of the Trees Act and see no reason to avoid the removal of one branch from the tree.

Orders

17. As a result, the Court orders:

1. The Respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurance to prune the tree (Harpephyllum caffrum) within 60 days of the date of these orders to remove one branch over the applicant’s dwelling (see photo, Annexure A). The works are to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373 ‘Pruning of amenity trees’.

2. The Respondents are to provide the Applicant with at least 2 days’ notice of the works.

3. The Applicant is to provide any access required to complete the works during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

Annexure A (509230, pdf)

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Decision last updated: 06 April 2022