Jackson v Phillips

[2019] NSWLEC 1271

Land and Environment Court

New South Wales

Medium Neutral Citation:	Jackson v Phillips [2019] NSWLEC 1271
Hearing dates:	31 May 2019
Date of orders:	31 May 2019
Decision date:	31 May 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The Court orders: (1)   Within 30 days of the date of these orders the respondents are to remove or kill all bamboo within the lower area of ground surrounding their Scribbly Gum. (This order does not apply to bamboo within the raised planter boxes.) (2)   The respondents are to take any measures necessary to prevent regrowth of the bamboo within the lower area of ground surrounding their Scribbly Gum. (3)   After 10 July 2019 and within 90 days of the date of these orders the respondents are to engage and pay for a suitably experienced fencing contractor with all appropriate insurance to repair the displaced section of fence on the common boundary, being the two steel panels nearest the gum tree, so that: it is in line with the remainder of the fence; it is vertical; and it matches the existing fence. No parts of the tree, including its roots, are to be damaged by these works. The bottom rail of the fence is to be located or adjusted, as necessary, to allow clearance of at least 200 mm to any part of the tree. (4)   The respondents are to give the applicant seven days’ notice of the works in (3). (5)   The applicant is to allow any access necessary during reasonable hours of the day for the works in (3). (6)   In March 2020 and in March every two years thereafter the respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune their gum tree to remove from the crown above the applicant’s property all deadwood greater than 25 mm in diameter and any hazardous branches. The works are to be done in accordance with the guidelines of AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. (7)   The respondents are to give the applicant seven days’ notice of each occasion of the works in (6). (8)   The applicant is to allow any access necessary during reasonable hours of the day for each occasion of the works in (6).
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – fence – risk of injury
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057
Texts Cited:	AS4373:2007 Pruning of amenity trees Safe Work Australia (2016) Guide to managing risks of tree trimming and removal work
Category:	Principal judgment
Parties:	Rhonda Jackson (Applicant) Mark Phillips (First Respondent) Lillian Phillips (Second Respondent)
Representation:	R Jackson, litigant in person (Applicant) M Phillips and L Phillips, litigants in person (Respondents)
File Number(s):	2019/46581
Publication restriction:	No

Judgment

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

The application

1. Rhonda Jackson (‘the applicant’) has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for the removal of a neighbouring Scribbly Gum and some bamboo. She also seeks repair of a boundary fence and reimbursement of money spent on trimming the tree and repairing tiles. Her application is based on the following: branches have fallen from the gum tree and damaged her roof tiles, allowing rain to enter and damage the ceiling; leaves and twigs fall on her roof and block her gutters; the tree, the bamboo and debris have caused displacement of the fence along the common boundary and of a retaining wall on her property; tree roots have lifted paving on her property; injury is likely when she cleans debris from her roof and gutters; and, the tree is a fire risk.

2. Lillian and Mark Phillips (‘the respondents’) say their gum tree is healthy and see no need to remove it. They value the privacy provided by their bamboo.

The trees

3. At today’s onsite hearing, I inspected the trees and observed the issues described above. The Scribbly Gum (Eucalyptus haemastoma) is approximately 10 metres tall and appears healthy. Its stem is close to, but clear of, the common boundary. It has been pruned recently and there is only small deadwood within its crown.

4. Most of the bamboo is planted in a raised planter bed, but the Phillips also planted some in the lower area around the base of the Scribbly Gum.

5. For the purposes of the Trees Act, bamboo falls within the definition of a tree. The bamboo and the Scribbly Gum are on land adjoining Mrs Jackson’s property. If they are found to have caused damage to her property, or are likely to cause damage or injury, the Court can make orders to remedy, restrain or prevent damage or injury.

Debris

6. The smaller debris that falls from the tree has, in the past, blocked Mrs Jackson’s roof guttering. Mrs Jackson was unsure if water damage resulted from this or from larger branches breaking tiles.

7. The principle established at [20] in Barker v Kyriakides [2007] NSWLEC 292 applies to Mrs Jackson’s situation:

“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.”

8. There is nothing unusual about the amount of debris that falls from the Scribbly Gum. Mrs Jackson can prevent debris blocking her gutters by undertaking reasonable maintenance.

9. Mrs Jackson submitted that there is a risk of injury when she undertakes such maintenance as she is required to access the roof via a ladder. Any maintenance should, of course, be undertaken in a safe manner by a person with suitable ability. Nevertheless, the risk to which Mrs Jackson refers does not fall within the jurisdiction of the Trees Act, as it is a risk of injury caused by one’s actions, rather than one caused by the tree.

Damage to the roof

10. I accept that branches from the Scribbly Gum have broken Mrs Jackson’s roof tiles in the past. This enlivens the Court’s jurisdiction to make orders in relation to this issue. Small dead branches falling from the tree are unlikely to cause damage to roofing tiles. The falling of larger dead branches could be prevented through routine pruning, which will be ordered.

Damage to the fence

11. A steel panel fence runs along the common boundary between the two properties. Two panels of fencing nearest the Scribbly Gum have been displaced and lean into Mrs Jackson’s property. Bamboo plants in the lower area around the base of the tree, along with the build up of debris in this area, have clearly resulted in some pressure against the fence. Buttress roots of the Scribbly Gum may also have contributed, but they are beneath the debris and this cannot be seen.

12. Orders can be made for both the fence, to remedy the damage, and the bamboo, to remedy damage and to prevent further damage. The displaced sections of fence can be repaired or replaced. Removing bamboo from this area would prevent it causing further damage.

Other damage

13. There is no evidence that roots of the Scribbly Gum have damaged Mrs Jackson’s retaining wall or concrete path.

Fire

14. Mrs Jackson submitted that the tree, the bamboo and the debris from them, increase the risk of fire damaging her dwelling. I am of the view, as was Commissioner Fakes at [86] in Freeman v Dillon [2012] NSWLEC 1057, that damage caused by fire is a separate issue from damage caused by a tree.

Compensation

15. It would not be appropriate to order any reimbursement of costs incurred in the past by Mrs Jackson for repairs or pruning works, for the following reasons. When her ceiling was damaged by water, Mrs Jackson claimed on her home insurance for the costs of ceiling repairs but not for the cost of repairing roof tiles. She gave no explanation for this omission.

16. Mrs Jackson seeks compensation for tree trimming done in 2012. There is no requirement for a tree owner to pay for overhanging branches to be pruned, and any claim for that should have been dealt with well before now.

Conclusion

17. There is no reason to order removal of this healthy Scribbly Gum. I will order maintenance pruning, at the respondents’ expense, to minimise the risk of branches damaging Mrs Jackson’s roof.

18. Clearly the fence needs repairing. Its condition can reasonably be attributed to the presence of the tree, the lower bamboo and debris falling from these. The responsibility for its repair therefore falls to the respondents.

19. The works being ordered are timed according to relevant submissions made by the parties.

Orders

20. As a result of the foregoing, the orders of the Court are:

1. Within 30 days of the date of these orders the respondents are to remove or kill all bamboo within the lower area of ground surrounding their Scribbly Gum. (This order does not apply to bamboo within the raised planter boxes.)

2. The respondents are to take any measures necessary to prevent regrowth of the bamboo within the lower area of ground surrounding their Scribbly Gum.

3. After 10 July 2019 and within 90 days of the date of these orders the respondents are to engage and pay for a suitably experienced fencing contractor with all appropriate insurance to repair the displaced section of fence on the common boundary, being the two steel panels nearest the gum tree, so that: it is in line with the remainder of the fence; it is vertical; and it matches the existing fence. No parts of the tree, including its roots, are to be damaged by these works. The bottom rail of the fence is to be located or adjusted, as necessary, to allow clearance of at least 200 mm to any part of the tree.

4. The respondents are to give the applicant seven days’ notice of the works in (3).

5. The applicant is to allow any access necessary during reasonable hours of the day for the works in (3).

6. In March 2020 and in March every two years thereafter the respondents are to engage and pay for a suitably qualified (minimum AQF level 3) and insured arborist to prune their gum tree to remove from the crown above the applicant’s property all deadwood greater than 25 mm in diameter and any hazardous branches. The works are to be done in accordance with the guidelines of AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

7. The respondents are to give the applicant seven days’ notice of each occasion of the works in (6).

8. The applicant is to allow any access necessary during reasonable hours of the day for each occasion of the works in (6).

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 17 June 2019