Ewen v Whan

[2016] NSWLEC 1501

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ewen & anor v Whan & anor [2016] NSWLEC 1501
Hearing dates:	27 October 2016
Date of orders:	27 October 2016
Decision date:	27 October 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at (19).
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); Council tree protection; Court’s role under the Trees Act is distinct from Council’s role; risk of damage or injury; orders for pruning one tree.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128
Category:	Principal judgment
Parties:	Helen Ewen (First Applicant) Paul Dusan (Second Applicant) Renee Whan (First Respondent) Greg Fountain (Second Respondent)
Representation:	Helen Ewen and Paul Dusan, litigants in person (Applicants) Renee Whan and Greg Fountain, litigants in person (Respondents)
File Number(s):	195854 of 2016

Judgment

Background

1. Amongst the dense dwellings of Annandale a mature Sydney Blue Gum (Eucalyptus saligna) (‘the Tree’) stands in a small courtyard at the rear of a dwelling, its crown visible for some distance in the surrounding neighbourhood. In 2010 Dr Whan and Mr Fountain (‘the respondents’) purchased the property on which the tree stands, and have lived there since. The previous owners of their property had applied to Leichhardt Council in 2005 to remove the tree. Council refused the application, noting the tree was in “excellent condition”. An arboricultural report obtained by the owners at the time recorded the tree’s height as 18 metres, its crown spread as 15 metres and the diameter of its stem as 600—700 mm.

2. The Blue Gum is close to the respondent’s rear boundary, and perhaps some six metres from the side wall of the dwelling on the property to the north. The properties are separated by a narrow ‘night soil lane’. The tree’s crown overhangs not only the respondents’ dwelling, but also that of the dwelling to their north and other neighbouring dwellings, as well as the road, footpath and power lines to their west.

3. Helen Ewen and Paul Dusan (‘the applicants’) have owned and lived at the property to the north of the tree since 2003. They are concerned that the tree drops branches, which have damaged their property. On two occasions, in 2011 and in 2015, branches falling from the tree broke external lights and sensors on the wall along the southern side of their house. They are worried that falling branches could cause further damage or injury, or that the tree may fall entirely onto their dwelling. At the front of their house, children’s bedrooms are beneath the tree’s crown. They are also worried that leaves and other debris falling from the tree onto their roof, lying in roof valleys and gutters, on their rear deck, and generally on the ground on and about their property, will damage their property. They can’t access their roof, so pay somebody to regularly clear debris from the roof and gutters. They say they shouldn’t have to pay for maintenance arising from a tree that is not theirs.

4. The applicants have discussed their concerns regarding the tree with its owners, both current and previous. They asked for compensation for replacing the damaged lights, but received none. They want the respondents to remove the tree. The respondents say that nothing has changed significantly since the tree’s previous owners applied for its removal, so they don’t wish to incur the cost of applying to Council to remove the tree if, as they believe, Council is likely to refuse the application. While they like the tree, they say they too get concerned for their family’s safety on windy days.

5. The applicants seek orders from the Court, pursuant to the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), for removal of the tree and for compensation for damage to property and cleaning up of debris.

6. The respondents obtained an arboricultural assessment and report on the tree in August of this year. Mr Hayden Coulter, of ENTS Tree Consultancy, recorded that the tree is 18 metres tall, has a crown spread of 12 metres and a stem diameter of 800 mm. Mr Coulter concluded that the tree did not appear to have significant defects, and that it posed a moderate level of risk to buildings but a low level of risk for surrounding land users. On my reading, the risk to buildings to which he refers arises from future growth of the tree, especially its roots and lower stem, and its proximity to the respondents’ dwelling.

7. The respondents noted that the tree’s dimensions had not changed significantly between the measurements recorded in the 2005 arboricultural report and Mr Coulter’s report of 2016. They say this shows the tree is growing slowly, and is unlikely to reach the size imagined by the applicants. Indeed, the tree’s recorded crown spread has reduced since 2005. The respondents say this is due to the amount of pruning carried out since then. They get a qualified arborist to prune the tree every two years. Pruning, done within Council’s permitted guidelines, removes dead and dangerous branches and has reduced crown extension over dwellings. The tree was last pruned in October 2014 and is now due for pruning, but they have postponed this until their neighbours’ application to the Court is heard and resolved.

Adjoining land

8. According to s 7 of the Trees Act, the tree must be situated on land adjoining the applicants’. Although a narrow ‘night soil lane’ separates the two properties, this does not prevent them being considered as ‘adjoining’ for the purposes of the Act, as discussed by the Commissioners at (7) in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128. Therefore the applicants are able to apply for orders regarding the subject tree.

The Court’s Jurisdiction is enlivened

9. At s 10(2) the Trees Act establishes the limits of Part 2 of the Act’s jurisdiction:

(2) The Court must not make an order under this Part unless it is 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.

10. I accept the applicants’ uncontested evidence that on two occasions branches from the tree have damaged their external lights and sensors. The application includes copies of invoices for their replacement. Therefore the Court’s jurisdiction is enlivened and orders can be made.

What orders are appropriate?

11. The Court is not obliged to make the orders sought by the applicants, but can make orders “as it sees fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree” (s 9).

Risk of injury

12. I generally accept the observations and conclusions of Mr Coulter’s report. The risk of injury posed by the tree to those on surrounding properties is relatively low. Branches fall only occasionally, and people are not constantly beneath the tree’s crown within the fall zone of those branches.

Debris

13. Debris from the tree, including leaves, twigs, flowers and fruits, settling on the roof, in gutters or on decking, does not amount to damage. If left, leaves may affect surfaces over time, or block gutters and cause water overflow. However any resulting damage could be avoided through maintenance. In Barker v Kyriakides [2007] NSWLEC 292, the Commissioners established the following principle 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.

14. There is nothing unusual about the situation in this matter that would lead me to deviate from this principle. The ongoing removal of debris from the roof, gutters and decking is not a reason to remove this tree.

Risk of damage

15. Branches that have fallen from the tree have been large enough to cause damage to the applicants’ external lights, but larger scaffold branches have not failed. It is two years since the tree was last pruned and at the onsite hearing one dead branch could be seen over the applicants’ dwelling. If the tree is pruned annually, dead or dying branches are more likely to be removed before falling, minimising the risk of further damage to the applicants’ property.

The Court’s role is distinct from Council’s role

16. The risk of damage to the respondents’ property may be moderate, especially considering the location of its stem and roots relative to their dwelling. The purpose of the Trees Act is to resolve disputes between neighbours, not to adopt the role of the relevant local government or any other authority. Any damage caused by the tree to the respondents’ property may be considered by the Court under s 12(j) of the Trees Act, but is not the principal concern of the Court. Should the respondents believe that the tree needs to be removed to avoid damage to their property, they would need to turn to their relevant local authority.

Compensation

17. A tree can benefit the environment and community beyond the boundaries of the property where it grows. This is acknowledged within the Trees Act (for instance ss 12(d)—(g)), and by local government tree controls pursuant to the Environmental Planning and Assessment Act 1979. The issue of maintenance arising from the proximity of a tree has been discussed above, and the cost of hiring someone to clean debris from gutters will not be compensated.

18. The respondents have not neglected their responsibility regarding their tree. They have engaged qualified arborists to prune the tree every two years, when any limbs that appear hazardous are likely to be removed. Having considered their actions (s 12 (h) of the Trees Act) I will not make any orders for compensation.

Orders

19. Considering the foregoing, the application is upheld and the Court orders that:

1. Within sixty days of the date of these orders, the respondents are to engage at their cost a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune their Sydney Blue Gum as follows:

1. remove all deadwood greater than 20 mm in diameter;

2. remove any hazardous limbs identified by the arborist while carrying out the works; and

3. reduce any overextended limbs, especially those over the applicant’s property, the road and the footpath, but removing no more than 10% of live crown mass.

2. The works in (1) are to be done in accordance with AS4373 Pruning of amenity trees and the WorkCover NSW Code of practice for the amenity tree industry.

3. Every year, within 30 days either side of the anniversary of the date of these orders, the respondents are to engage at their cost a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to carry out the works specified above in (1) and (2).

4. For each pruning event ordered above in (1) and (3), the respondents are to give the applicants at least 7 days’ notice of the works.

5. The applicants are to allow any access necessary for the works ordered above in (1) and (3) to be done during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 01 November 2016