Gordon v Sheriff

[2017] NSWLEC 1212

Land and Environment Court

New South Wales

Medium Neutral Citation:	Gordon v Sheriff [2017] NSWLEC 1212
Hearing dates:	26 April 2017
Date of orders:	26 April 2017
Decision date:	26 April 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [32]
Catchwords:	TREES [NEIGHBOURS] Damage to property; risk of injury; adequacy of evidence; tree removal refused
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Ghazal v Vella (No 2) [2011] NSWLEC 1340 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Sheryl Gordon (Applicant) Joan Sheriff (Respondent)
Representation:	Applicant: Sheryl Gordon (Litigant in person) Respondent: Joan Sheriff (Litigant in person)
File Number(s):	43352 of 2017

JUDGMENT

1. COMMISSIONER: The applicant, who owns a property in Tweed Heads West, has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of three trees growing on the respondent’s property.

2. The orders are sought on the applicant’s contention that the trees drop excessive quantities of leaves and other debris, which has damaged pool filters and pumps and other elements of the applicant’s property. The applicant submits that the volume of debris requires constant removal and is very stressful.

3. Apart from the debris, the applicant maintains that tree roots have caused damage to tiles around the pool as well as the driveway. The applicant is also concerned that branches have fallen from the trees and have caused damage to the metal dividing fence. She is also worried that further branch failure could injure anyone on her property. Concerns about termites are also raised.

4. The trees the subject of the application are a Corymbia maculata (Spotted Gum) (T1) growing in the respondent’s front garden, a Delonix regia (Poinciana) (listed as a Poinsettia in the application form) (T2), and a Eucalyptus saligna (Sydney Blue Gum) growing in the respondent’s backyard.

5. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(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.

6. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.

7. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.

Tree 1

8. The applicant is concerned that the whole tree, or branches from it, may fall onto her property in a storm and cause substantial damage to her dwelling and potentially serious injury to anyone in it. The applicant stated that the guttering has been replaced because of leaf drop and that it must be regularly cleaning.

9. Neither party engaged an arborist to provide any independent expert opinion. The comments below are based on the arboricultural expertise I bring to the Court.

10. During the on-site hearing, I saw no signs that would lead me to conclude that the tree is unstable or that any part of it is likely to fail, particularly in the court’s usual time frame. While tree failure is a hypothetical possibility, there is no evidence to prove the likelihood of this happening. In my opinion the tree is an extremely healthy specimen with good form and no obvious structural defects. The tips of upper secondary branches are at least 4m away from the applicant’s dwelling; very little of the tree overhangs the applicant’s property.

11. While I am not satisfied that any damage has occurred to the guttering as a consequence of the leaves (no evidence was adduced), or is likely in the near future to occur, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter.

12. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paragraphs [168] to [173] discusses ‘damage’ in general. In this discussion, his Honour specifically noted (at [171]) that:

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.

13. Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states 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, 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 are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this tree.

15. As none of the tests in s 10(2) are met, the application for the removal of T1 is dismissed.

Tree 2

16. Tree 2 is a large, mature Poinciana in the respondent’s backyard. The respondent stated that it was well established when she purchased her property some 45 years ago. The tree is a very healthy specimen of good form. The only section I saw that may be of some concern is a large branch on the side of the tree closest to the applicant’s property that was lopped about 6 years ago. While there are a number of epicormic shoots growing from the remaining stub, they appeared to be quite well-attached. Only a small proportion of the canopy overhangs the applicant’s property.

17. The applicant purchased her property about 12 years ago. In the backyard, on the side closest to the tree, is an in-ground swimming pool, which the respondent thinks was installed about 20 years ago.

18. The applicant contends that roots from the Poinciana have lifted pavers around the pool deck and have caused a crack in the mortar. Apart from the roots, the applicant asserts that debris from the Poinciana and the nearby Eucalypt constantly falls into the pool. This necessitates frequent cleaning and the regular use of expensive pool chemicals. She stated that she cleans the skimmer box daily and the pool filter weekly however she has twice replaced the pool filter and pump. The applicant stressed that she was not seeking compensation for any damage but simply wished the trees to be removed.

19. During the hearing I observed lifted and uneven pavers around the entire pool deck. No pavers had been lifted to either prove or disprove the presence of roots. I observed another similar crack in the mortar in another section of the pool some distance away from the tree. Both cracks are in a mortar bed in which large decorative rocks had been embedded at the pool edge.

20. No evidence was adduced as to whether the pool equipment had been damaged by tree debris.

21. As with the finding on debris from T1, there is no evidence to suggest actual damage has been caused by debris from the Poinciana and the discretionary considerations would otherwise apply to T2 and T3. It would seem inevitable that a higher degree of maintenance would be required if someone purchased a pool located beneath established trees.

22. If anything were to be removed from the Poinciana it would be the stub however this is not currently posing or is likely in the near or foreseeable future to cause any risk to the applicant or her property and no court orders will be made for its removal. The application to remove T2 is dismissed. Even if roots had been found to be a cause of lifting, it is unlikely that an order for removal would be made given the heath, size, and significance of this specimen; other options are available.

Tree 3

23. The respondent stated that T3 and a number of other eucalypts in the backyard were self-sown. The tree is an early-mature Sydney Blue Gum of average health and form growing quite close to the fence at the rear of the respondent’s property [the parties share a common side boundary fence]. Several lateral branches were removed from it about five years ago. Very little of the canopy overhangs the applicant’s property.

24. The applicant alleges that some time ago, a branch from the tree fell onto the metal dividing fence and caused its displacement. There is no photographic evidence of this event. I observed the displaced section; the post is firmly anchored and the fence is fully functional, albeit slightly out of alignment.

25. To support her contention that the tree is dangerous, the application claim form includes a photograph of a green branch that fell from the Sydney Blue Gum in calm conditions onto the metal fence at the rear of the respondent’s property. Apparently this was repaired by the Department of Housing, the owner of the property at the rear of the respondent’s property. As this was not damage to the applicant’s property, the Court has no jurisdiction to consider it, however, the applicant’s point is noted.

26. The only potential cause of any damage to the applicant’s property or of injury to anyone that I observed which may arise from this tree, and which satisfies s 10(2), is a fallen piece of dead wood caught up in the foliage of one of the applicant’s palm trees. The respondent will be ordered to remove it. While I did observe other dead branches in T3, none of them appeared likely to cause any problem for the applicant. Emphasis is placed on dead wood because it is generally the part of a tree that will predictably fail at some stage; regular removal of dead wood is good practice.

27. The applicant raised concerns about termites in the tree/ trees. As discussed in Robson v Leischke at [189], the Trees Act does not apply to insects and other organisms that may live in or on trees; damage or injury must be as a direct consequence of the tree.

28. It is also noted that some of the photographs included in the application claim form are photographs taken in another property, and are not relevant to these proceedings. The photographs are marked as ‘n.a.’.

29. However, for the reasons stated above, the application to remove T3 is dismissed.

30. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made only if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be ‘changed circumstances’ and fresh evidence.

31. During the hearing the respondent stated that she had engaged someone to remove the trees. If Tweed Shire Council, as a relevant consent authority, has granted the respondent consent to remove the trees, the orders of the Court will not over-ride that consent. Consent from a council for a tree owner to do something to their own tree is permissive and does not compel an owner to carry out the works for which consent is granted. However, the orders of the Court are coercive, and must be complied with (see Ghazal v Vella (No 2) [2011] NSWLEC 1340).

Orders

32. As a result of these findings, the Orders of the Court are:

1. The application to remove three trees growing on the respondent’s property is dismissed.

2. Within 14 days of the date of this judgment, the respondent is to remove, or have removed, the dead branch caught in one of the applicant’s palm trees growing at the rear of the applicant’s property.

_______________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 28 April 2017