Hirst v Stewart

[2020] NSWLEC 1223

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hirst v Stewart [2020] NSWLEC 1223
Hearing dates:	26 March 2020
Date of orders:	09 April 2020
Decision date:	09 April 2020
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	Refer to orders at [16]
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) –damage to property – apprehension of further damage and injury – tree removal sought
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	David Hirst (Applicant) Bradley Stewart (Respondent)
Representation:	Solicitors: A Mulcahy (Solicitor) (Applicant) B Stewart (Litigant in Person) (Respondent)   Counsel: Mulcahy Lawyers (Applicant)
File Number(s):	2019/323635
Publication restriction:	No

Judgment

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

1. COMMISSIONER: Mr Hirst applied, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), for the pruning or removal of five trees (the trees), from the rear yard of the adjacent neighbouring property, located in Alstonville.

2. Mr Hirst contends that the trees are causing damage to the timber fence which delineates the common boundary, and that overhanging branches, some of which have broken and fallen, pose a risk of injury. He also claims that refuse falling from the trees into his property have caused damage to guttering and air conditioning, and that the maintenance required to clear away the fallen refuse is an unreasonable impost on him.

3. By 3 February 2020, when the matter came to the Court for mention via teleconference, contractors commissioned by Mr Stewart had completed a series of works to address these tree issues, such that all trees had been removed. Therefore, notwithstanding that neither a site inspection, nor an on-site hearing were possible under current COVID-19 related travel restrictions, this progress allowed the case to be resolved by teleconference hearings.

The initial teleconference hearings

4. At the initial hearing on 26 March 2020, consent orders submitted by Mr Mulcahy, Solictor acting for Mr Hirst, were considered unsatisfactory by Mr Stewart. Further, though Mr Stewart wished to have the matter finalised by the Court, he resisted acknowledgment of any damage being caused by the trees, leaving the Court with no jurisdiction under the Act to resolve the matter.

5. The parties were thus directed to continue negotiations towards a settlement with revised consent orders to be submitted prior to a subsequent hearing, which was listed for 9 April 2020. The matter was adjourned.

6. Amended consent orders provided by Mr Mulcahy prior to this hearing on 9 April 2020, displayed further progress towards dispute resolution, such that the remaining matters in contention appeared relatively minor. At this hearing Mr Stewart submitted that a stump, residual to the aforementioned tree removal works, while perhaps not having caused damage in the past nor currently, was likely to cause damage in the near future.

Jurisdictional requirements

7. With respect to s 7 of the Act, 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.

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

9. As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the trees are situated. Mr Hirst’s application included copies of extensive correspondence from Mr Mulcahy to Mr Stewart, highlighting the issues, and proposing removal and pruning of the trees, along with fence replacement.

10. 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 has caused, is causing or is likely, in the near future, to cause damage to the applicant’s property or is likely to cause injury to any person. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ with respect to damage is deemed to be a period of 12 months from the date of the determination.

11. Though risk of injury is no longer at issue, and I doubt that falling refuse would have engaged the Act, I am satisfied, based on the submissions of both parties, and photographs supplied with the application, that the residual stump, is likely, in the near future, to cause damage to the applicant’s property. The jurisdiction of the Act is thus engaged.

Dropping debris

12. By way of clarification, notwithstanding that I was not privy to a site inspection, in principle, I concur with Mr Stewart’s submission that refuse from overhanging branches is not a factor that will ordinarily engage the jurisdiction of the Act.

13. As Mr Stewart noted, the issue of maintenance is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at [20], establishes the tree dispute principle:

“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 will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree.”

14. In making an order, the Court normally considers relevant discretionary matters in s 12 of the Act. The removal of the trees prior to the final hearing, however, renders such assessment irrelevant.

Conclusion

15. Given that the Act has been satisfied on the basis that the residual stump of one of the trees is likely, in the near future to cause damage to property on the applicant’s land, the Court thus has jurisdiction to make orders. As the parties had progressively made sound progress towards resolution, this required only minor alteration to the consent orders put forward by Mr Mulcahy for the final hearing.

Orders

16. The Court orders:

1. The Respondent at its own cost is to remove the tree stump located at the south eastern corner of the respondent’s property in Alstonville, identified as D4 on the diagram provided in answer to Question 2 of Form H filed 16 October 2019.

2. The Applicant and Respondent shall, by 15 May 2020, each obtain a maximum of two quotes from licenced tradesmen with appropriate insurance, for the cost of fencing repairs at D4 on the diagram provided in answer to Question 2 of Form H filed 16 October 2019.

3. The Applicant and the Respondent are to exchange quotations by 15 May 2020. If the parties are unable to agree on which contractor shall do the work, then the cheapest quote shall be chosen.

4. The Applicant and the Respondent agree to proceed with the stump removal and fence repairs before 30 June 2020.

5. The Applicant shall pay the respondent an amount equivalent to 50% of the cost of this fence repair, within 14 days of receipt of a paid invoice for the fencing works.

6. That the Tree Dispute Application filed 16 October 2019 be otherwise dismissed.

7. Liberty to approach the Court on two working days’ notice.

………………………….

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 18 May 2020