Kiefel v Pendergast

[2013] NSWLEC 1126

Land and Environment Court

New South Wales

Medium Neutral Citation:	Kiefel v Pendergast [2013] NSWLEC 1126
Hearing dates:	17 July 2013
Decision date:	17 July 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage; injury; no evidence to support tree removal
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hornsby Shire Council v Malcolm (1986) LGRA 429 P Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Mrs E Kiefel (Applicant) Mr B Pendergast (Respondent)
Representation:	Applicant: Mrs E Kiefel (Litigant in person) Respondent: Mrs S Pendergast (Agent)
File Number(s):	20260 of 2013

Judgment

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

1. COMMISSIONER: The applicant owns a property in Tamworth. She is concerned that a tree growing on a neighbouring property could fall and cause damage to her dwelling or serious injury to anyone in it.

1. The applicant has applied to the Court under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders for the removal of the tree at the respondent's expense.

1. Material on the Court's file indicates that the application was made with the assistance of the applicant's daughter however, the applicant's daughter did not participate in the proceedings. The respondent's neighbour observed the proceedings.

1. The respondent does not wish to remove the tree and has no safety concerns in regards to its location.

Jurisdiction

Adjoining land

1. Section 7 of the Act states:

7 Application to Court by affected land owner

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.

1. The Court has applied the decision in Hornsby Shire Council v Malcolm (1986) LGRA 429 in which the Court of Appeal held that adjoining land need not mean 'immediately linked to' or contiguous with'. This has been applied in P Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 to separation by a public road.

1. In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [157] states in part:

...The concept of "adjoining land" evidently includes properties that abut each other, but might also include properties that are separated by other land, such as a public road or drainage easement, provided there is a relevant connection in the sense that the tree growing on one property is capable of causing damage to the other property or injuring persons on that other property...

1. In this case, the parties' properties are separated by a council-owned easement about 4m or so wide. The grassed easement facilitates council's maintenance of a nearby reserve and enables pedestrian access to that reserve from nearby streets. The tree is growing in the respondent's rear garden and is opposite the applicant's property. The applicant's property is to the west of the respondent's property.

1. Therefore I am satisfied that the tree is growing on adjoining land. However, if I am wrong in this I rely on my findings in regards to other jurisdictional tests.

Section 10(2) and relevant decisions

1. The next relevant jurisdictional test is s 10(2). This states that the Court must not make an order under this Part unless it is 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.

1. 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...".

1. In Robson at [200], Preston CJ states in part that:

...The requirement that, if damage has not yet occurred, the Court must be satisfied that "it is likely to occur in the near future" also accords with the requirement that a quia timet injunction should not issue unless the impending damage (which is required to be substantial or almost irreparable) is imminent or is likely to occur in the near future or, put another way, there is "a real, appreciable probability" of irreparable damage...

1. To that end, the Court generally applies the guidance decision in Yang v Scerri [2007] NSWLEC 592 which considers 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, its condition at the time of the hearing, any relevant history of failures, any relevant expert opinion, and the circumstances of the site apparent at the time of the hearing.

The tree

1. The tree was inspected from the respondent's property. Prior to this, the applicant expressed concerns about her ability to stand for long periods as she has a medical condition that makes this difficult. The applicant declined to enter the respondent's property however it was clearly stated that there would be no discussion between the Court and the respondent in the applicant's absence.

1. Neither party engaged an arborist to provide independent expert opinion. Therefore, with the expertise I bring to the Court, I observed the tree, a mature Corymbia citriodora (Lemon-scented Gum) to be healthy with no obvious structural defects. While there was some kino flow from one large fork, there were no signs of any damage or anything abnormal. The branches appeared to have normal and sound attachments. There were no obvious signs of any likely instability in the tree's root system. There was a very small percentage of dead wood (<2%) in the canopy; this was of small diameter and of a size unlikely to cause any damage or injury. There were normal signs of branch abscission of lower, smaller branches.

1. The tree does not overhang the applicant's property but it extends partway across the easement.

Damage

1. The applicant stated that branches had fallen onto her property in strong winds but no damage has occurred. The applicant produced no evidence, photographic or otherwise, of the fallen branches.

1. The applicant stated that she had recently had the gutters cleaned of leaves from the tree but as yet no damage has been caused as a consequence.

1. I was informed by the respondent's agent (his wife) that the prevailing strong winds are from the west, which would blow the tree towards the respondent's property rather than towards the applicant's property.

1. The application includes a letter to the applicant from the owner of the property to the north of the applicant. The letter states that while small branches have fallen from the tree into their property, the branches have been too small to cause damage and small enough to put into a bin. The letter also states that in the 10 years the author of the letter has lived there, she has not known the tree to drop a large branch onto her property or onto the walkway (the easement).

Findings and orders

1. While there is very remote and hypothetical possibility of whole tree failure onto the applicant's property, in my opinion, this is highly unlikely to eventuate in the near or foreseeable future (see paragraphs [12]-[13]). I see no reason to vary from the timeframe considered in Yang v Scerri. I saw no evidence, physical or otherwise, that would lead me to conclude that the applicant's fears are likely to be realised.

1. Therefore, on the evidence before me, I am not satisfied to the level required by s 10(2) that the Lemon-scented Gum has caused, is causing, or could in the near future cause damage to the applicant's property or could cause injury to any person. As none of the tests in s 10(2) are met, the Court has no jurisdiction to make any orders for any intervention with the tree.

1. Therefore, on this basis, the Orders of the Court are:

(1)   The application is dismissed.

__________________________

Judy Fakes

Commissioner of the Court