Gill-Macswayne v Crampton
[2016] NSWLEC 1641
•22 December 2016
Land and Environment Court
New South Wales
Medium Neutral Citation: Gill-Macswayne v Crampton & anor [2016] NSWLEC 1641 Hearing dates: 22 December 2016 Date of orders: 22 December 2016 Decision date: 22 December 2016 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is dismissed.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage or injury not likely; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Owners of SP 37485 v Owners of SP 4193 [2014] NSWLEC 1185 Category: Principal judgment Parties: Ruth Gill-Macswayne (Applicant)
John Crampton (First Respondent)
Edna Sorensen (Second Respondent)Representation: Ruth Gill-Macswayne, litigant in person (Applicant)
John Crampton and Edna Sorensen, litigants in person (Respondents)
File Number(s): 231260 of 2016
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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Mrs Gill-Macswayne, the applicant in these proceedings, lives at her Cromer property, where she has a dwelling, pool and landscaped garden. Behind her property, fronting her side street, Mr Crampton and Ms Sorenson (‘the respondents’) have four mature paperbark trees in their front garden.
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Mrs Gill-Macswayne is worried that these trees might fall onto her property. Throughout summer, she says, her children and their friends spend hours in and around the pool. The tree nearest the pool could strike this area if it fell. Apart from her fear that the trees may cause injury, she also worries that the trees will damage her property, on which she has spent a considerable sum of money.
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Mrs Gill-Macswayne has applied to the Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the respondents to remove the four trees.
The applicant says the trees are likely to fall
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Mrs Gill-Macswayne seems sure that, without intervention, the trees are going to fall. She submits this is likely for the following reasons.
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The Paperbark trees are tall. She has been watching them for some time and is sure that the tree nearest her property, at the southern end of the row of four trees, leans more than it used to. She contends that the top of this tree is gradually leaning more towards her property.
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The trees are growing in shallow soil on a rock shelf. Mrs Gill-Macswayne points out that the rock shelf comes to the surface on nearby properties. At the onsite hearing she took the Court to parts of her own property where excavation has revealed the shallow rock shelf. She contends that the four trees must have shallow root systems and are therefore unstable and likely to fall.
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Mrs Gill-Macswayne says the sloping land is unstable, being a shallow layer of soil above a rock shelf. She says the soil and sediment that washes onto her property demonstrates this.
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Mrs Gill-Macswayne says the rock shelf prevents water draining, so after heavy rainfall the soil is waterlogged, leading to a higher risk of tree failure.
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Mrs Gill-Macswayne says a large gum tree on the other side of the road fell recently. She contends that it grew in the same conditions as these trees, and so these trees are likely to fall in the same fashion.
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Mrs Gill-Macswayne says that although she has asked the respondents to remove the trees in the past, expressing her concern about leaves and other debris falling onto her property, especially into her pool, her main concern is now about the trees falling and causing injury or damage. She says her fear is now continual.
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Mrs Gill-Macswayne is also concerned that branches will fall from the trees onto power lines, or that the trees will pull down power lines when they fall.
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Bedrooms of Mrs Gill-Macswayne’s dwelling are at the end closest to the trees, where they might be struck if the trees failed.
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Mrs Gill-Macswayne provided a copy of an email from Mr Tristan Bradshaw, of Bradshaw Tree Services, to support her claims that the trees are dangerous. She refers to this email as an ‘arborist report’. I include the paragraph that is most relevant to the trees below.
The Paper Bark trees that were assessed were of good health and condition. A few minor inclusions (weak points) were noted at some junctions. These however were not a concern as all 4 trees protect each other from strong winds. These trees are in good structural condition. All Paper Bark trees have extensive root systems and are unlikely to completely fail.
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Mr Bradshaw went on to say that 10% of the tree nearest the applicant’s property could be pruned without council approval, to reduce the potential for branches to fall into her property. This pruning has been done.
The respondents see no need to remove the trees
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Mr Crampton and Ms Sorensen say that the trees appear healthy and stable. They have had the southernmost tree nearest the applicant’s property pruned to reduce overhang. They contend that the trees’ roots would in fact assist with soil stability. They contend that the trees reduce any waterlogging because they take moisture from the soil. They point out that there are many large trees on similar soils in the area. They say that the trees provide benefits to the community and to the environment.
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Based on previous correspondence the respondents believe Mrs Gill-Macswayne’s principle concern relates to debris falling from the trees. They understand the trees need pruning and intend to have all four trees in future. However they say that Mrs Gill-Macswayne’s fears do not appear to be based on anything tangible, and say the ‘report’ she provided shows the trees are unlikely to fail.
Findings
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Bringing my own arboricultural expertise to the matter, I observed the four Paperbarks at the onsite hearing. They appear to be 15—17 metres tall. The nearest is approximately 6 metres from the applicant’s pool and approximately 8 metres from her dwelling. The trees are mature, well-formed examples of the species. The few narrow forks present are typical of the species and there are no signs that any of these are likely to fail in the near future.
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Soil around the trees is stable. There is no lifting of root plates, cracking in soil around the trees, nor indeed any other signs that root plates of the trees are unstable. The trees have grown together and it appears that the slight lean of the southernmost tree is its natural growth form as it has competed with the tree to its north for space and sunlight. When trees grow together like these, if the lean of an unstable tree increases over a short period, a gap can usually be seen between its crown and the crown of the adjacent tree. There is no such gap between tree crowns here. I do not accept that the lean of the tree has recently increased.
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Based on my observations, there is nothing to suggest that the trees are likely to fail in the near future. This is not to say that I doubt Mrs Gill-Macswayne is fearful of the trees, but I cannot see that her fear is based on any more than a possibility that the trees will fall, rather than any real signs that such failure is likely. Furthermore, the Court’s jurisdiction to make orders in this case, where the applicant’s claims rely on what might happen in future, depends not on the fears of the applicant, but on the real likelihood that the trees concerned will cause damage to the applicant’s property in the near future or injury to a person (s 10(2)(a) of the Trees Act).
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Moore SC addressed this very issue in Owners of SP 37485 v Owners of SP 4193 [2014] NSWLEC 1185:
12 It is again important to note in this context that I am not dealing with an application based on damage to the adjoining property, merely on the risk of injury to the occupants of the two elements of that strata plan.
13 It is not uncommon in proceedings such as these for there to be honestly held fears by those persons resident in the vicinity of a tree that the tree will fail and cause injury to them or their property. We do not question in proceedings such as these the honesty of those fears and I certainly do not question the sincerity with which they are held in this instance.
14 The role of the Court however is to consider the likelihood of those fears being realised and only if there is some foreseeability of those fears being realised does the Court have jurisdiction to intervene and order removal of the tree or any other intervention with it…
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Just as Moore SC found in that matter, I find no likelihood that the applicant’s fears will be realised.
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Regarding debris, there is no evidence adduced by the applicant that any debris from the tree has damaged her property. She has installed a pool cleaning system and said in her own submissions that she is no longer concerned about debris from the trees. I do not see that any debris is likely to cause damage to her property.
Orders
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I find that the trees are unlikely to fail onto, or otherwise damage, the applicant’s property. They are equally unlikely to cause injury. The Court has no jurisdiction to order intervention with the respondents’ trees. As a result, the orders of the Court are:
The application is dismissed.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 10 May 2018
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