Lowe v Tovey

[2018] NSWLEC 1644

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lowe v Tovey [2018] NSWLEC 1644
Hearing dates:	11 December 2018
Date of orders:	11 December 2018
Decision date:	11 December 2018
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; claim for compensation; apprehension of injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Robynne Lowe (Applicant) Christine Tovey (Respondent)
Representation:	R Lowe, litigant in person (Applicant) C Tovey, litigant in person (Respondent)
File Number(s):	2018/267892
Publication restriction:	No

Judgment

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

1. ACTING COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mrs Lowe of Port Macquarie, relating to four Blackbutt trees (Eucalyptus pilularis) (the trees) located in the adjacent neighbouring property.

Background

2. The respondent, Ms Tovey, purchased her large residential property more than 31 years ago with the trees already established and mature in the rear yard. At this time, the trees overhung a largely empty five acre paddock, containing a house located far from Ms Tovey’s boundary. While it is often difficult to gauge tree age, based on the arboricultural expertise I bring to the court, an estimate of 60 to 80 years seems reasonable.

3. In about 2000, this paddock was developed and houses were built relatively close to the northern boundary of Ms Tovey’s rear yard. In 2010, Mrs Lowe purchased her property and issues arising from the tree’s overhanging branches have resulted in a dispute between the parties since then.

4. The trees are located loosely parallel to Ms Tovey’s rear northern side boundary, with the distances between the four individual trees and the boundary ranging from about one to four metres. This boundary runs approximately east – west, and is delineated by a tall fence.

5. Though this pattern suggests that these trees have been planted, there is sufficient lack of uniformity in terms of spacing, between the trees, and between the four individual trees and the boundary, to consider that some or many of the trees may be remnant natural vegetation. The presence of at least two mature Tallowood trees (Eucalyptus microcorys) growing close to and intermingled with the four trees near the boundary, plus other large, mature Blackbutt trees of similar or greater age growing within the rear yard add weight to this notion. Both these species are common and dominant in local ecological communities.

6. Tree height varies from about 20 to 30 metres, with ascending structural trunks typical of these species, and with branches extending over parts of Mrs Lowe’s rear yard and house by about seven metres.

The hearing

7. The hearing commenced in Ms Tovey’s rear yard, with an inspection of the trees. Ms Tovey’s neighbour, Mr John Pugh, attended the hearing with her. Mrs Lowe was accompanied by a friend and agent, Mr Paul Dirago, and she has also appointed her son, Mr Scott Barlow as her second agent. Mr Barlow, who lives in Sydney, was not present at the hearing but provided written submissions that accompanied Mrs Lowe’s application.

The applicant’s case

8. Mrs Lowe seeks orders “that the respondent at her expense”;

1. “remove all branches, back to the tree trunks from T1, T2, T3 and T4 now overhanging the” applicant’s property, “with that work to be done by an appropriately qualified and insured arborist within 30 days and again every two years”;

2. “remove deadwood from all trees within 4 metres of the boundary with that work to be done by an appropriately qualified and insured arborist within 30 days and again every two years”; and

3. “rectify damage to the roof of the applicant’s dwelling by replacing damaged tiles and roof capping with that work to be done within 10 days by an appropriately qualified and insured tradesperson.”

The respondent’s case

9. Mrs Lowe’s proposed orders are resisted by Ms Tovey. However, in a letter responding to Mr Barlow, dated June 6, 2018, Ms Tovey wrote,

“Please consider this as consent to carry out pruning of the tree overhanging your property boundary. This consent is subject to receipt of the following: Relevant council approvals

Arborists report (where required by council); and

All pruning work carried out by a suitably qualified arborist.”

Ms Tovey concluded her letter with “You should note that all work will be carried out at your own expense.”

Jurisdictional requirements

10. With respect to s 7, 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. These trees are clearly located on adjoining land.

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

12. As required by s 10(1), I am satisfied that there has been an attempt by Mrs Lowe to reach agreement with the owner of the land on which the trees are situated. Mrs Lowe provided evidence showing unsuccessful attempts to organise mediation via a Community Justice Centre, and Ms Tovey provided a small submission responding to this in her written evidence.

13. 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.

14. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination.

Tile replacement and dropping debris

15. For tile damage to the house due to branches and twigs falling from the tree; and maintenance required to clean out gutters on the house removing leaves and debris from the tree, Mrs Lowe is seeking an order for heavy pruning and compensation for roof damage repairs.

16. Mrs Lowe provided a pile of leaves, sticks and similar refuse that had dropped onto her property over recent months, and, as well as relying on submissions accompanying her application, concluded her oral submission by noting that the trees had grown, that they had damaged her house, and that they were likely to cause further damage.

17. In respect to possible and or future damage or injury, in Robson v Leischke [2008] NSWLEC 152 at [225], Preston CJ states “the mere fact that a tree is situated on a person’s land is insufficient reason by itself to justify making that person an insurer of other persons for any harm the tree may have caused to them or their property.” At [56], His Honour states that mere encroachment is not damage, and in [171] that “annoyance or discomfort to the occupier of 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 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.

18. Though there is small deadwood spread around the overhanging live branches, the overall level of deadwood observed was low. Larger pieces were in the 15-25 mm diameter range at the branch collar, with only one branch of about 30mm diameter located above the rear yard. Deadwood up to and including this size is not generally classified as a hazard, and specifications for deadwood removal would normally not include branches below 25mm diameter at the branch collar.

19. The issue of damage to roof infrastructure from falling debris is dealt with in Barker v Kyriakides [2007] NSWLEC 292 and the subsequent tree dispute principle, that 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.

20. Though I readily acknowledge that the persistent dropping of such material has resulted in stress, and extra maintenance for Mrs Lowe, this tree dispute principle applies in this case.

21. While Mr Barlow, in his letter of March 17, 2018 to Ms Tovey, expressed concern “at damage and mess caused by large gum trees”… “overhanging my property” and noted that it “costs me a lot of money to continuously get the garden and gutters cleaned”, it is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. Leaf accumulation could be mitigated by more regular maintenance in terms of roof and gutter cleaning, and by the installation of readily available products to reduce refuse accumulation in both gutters and roof channels.

22. Photographs showing tile and ridge capping damage on the roof were provided by Mrs Lowe, as was a quotation for repairs. This damage appears to be minor, apparent weathering near some cracks suggest tile damage has accumulated over some years and the maintenance similarly is considered reasonable. It is not unusual for homeowners to retain a pile of replacement tiles, and replace breakages after events such as hail damage. These circumstances therefore fail to meet the test posed, by s 10(2) of the Act and this element is thus dismissed.

Risk of Injury

23. Mrs Lowe’s request for tree pruning is also based on the perceived high risk of injury from overhanging branches dropping on to people. In his letter of March 17, 2018 to Ms Tovey, in relation to the large branches overhanging Mrs Lowe’s roof, Mr Barlow noted, “If any of these branches were to fall they would come straight through my roof and potentially seriously injure or kill anyone who is in the home at the time.”

24. Using the guidance decision published in Yang v Scerri [2007] NSWLEC 592 with respect to injury, the Court considers the risk posed by trees based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

25. Based on the arboricultural expertise that I bring to the Court, there are no obvious characteristics of these trees that cause concern. They appear healthy. They have moderate foliage density appropriate to their age and species, and appear in general to have sound branch structures. I noticed no evidence of previous torn out branches, nor was any such aspersion cast by Mrs Lowe. Both species are long lived and generally have strong branches.

26. In the light of these tree characteristics, in the general absence of obvious deadwood of more than 25mm diameter at the branch collar overhanging Mrs Lowe’s property, and based on extensive world-wide data related to tree risk, there is no evidence to support the applicant’s fear and apprehension. No tree risk assessment was provided to support this claim, and the level of risk is considered low and acceptable. This element is also dismissed.

27. Though s 10(2) of the Act has not been satisfied by either the issue of damage, or risk of injury, in the light Ms Tovey’s June 6, 2018 letter to Mr Barlow, there is scope for Ms Tovey to apply to the local council for permission for minor pruning, to further alleviate refuse drop.

28. As the trees were there prior to Mrs Lowe’s residence being built below their overhanging canopies, even if s 10(2) of the Act had been satisfied and an order for pruning had been made, the cost of the work would have been shared or have even primarily fallen on Mrs Lowe.

Discretionary matters – s 12

29. In making an order, the Court must consider key matters in s 12 of the Act. The relevant clauses are:

• The trees are located relatively close to the boundary. Although the trees are mature they will continue to grow, though more slowly as they age: (s 12(a));

• In considering s 12(b), the trees are protected by Council’s Tree Management controls under its Development Control Plan.

• With respect to s 12(b2), there has been no obvious past pruning of the trees, or it has been relatively minimal. This has allowed the retention of the tree’s apparently sound branch structure, and full aesthetically pleasing canopy. Any subsequent pruning specifications should maintain this approach. Pruning per se is negative for trees, unnaturally and suddenly reducing their leaf cover, photosynthetic capacity and thus tree health. Such impacts are often more marked on older trees, particularly when combined with stressful environmental conditions such as extreme temperatures and below average precipitation levels which are becoming increasingly common.

30. Canopy alteration from pruning can also result in other unexpected negative impacts caused by changed wind patterns, often leading to increased turbulence and subsequent branch breakage.

31. The opportunity cost of major pruning is rarely considered; overhanging branches generally protect roofs from impacts of major winds, and protection from sun exposure contributes to insulation and cooling. Therefore, moderate to heavy pruning of these overhanging branches should be avoided.

• The trees contribute significantly to protection from the sun, to the amenity of the respondents’ property, and to the immediate locality. They are large prominent trees which are clearly visible from neighbouring houses. As such, they have significant intrinsic value to public amenity: (s 12(b3)(e)(f)).

• It could be reasonably expected that this dominant species in local ecological communities would provide food and or shelter for local fauna because of its flowering and fruiting characteristics. These trees would contribute significantly to local biodiversity: (s 12(d)).

• Normal wear and tear is expected to arise with any structure over time. Consideration must be given to the age and nature of the tiles and ridge capping when determining the extent to which a tree may or may not have caused the alleged damage. This is a consideration in this case, where the building is almost twenty years old: (s 12(i)).

• The issue of claimed damage to roof infrastructure from falling leaves is dealt with in Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle: (s 12(i)).

Conclusion

32. I have examined the four mature Blackbutt trees and have reached the following conclusions:

1. The issue of minor tile damage, and debris falling on the roof is addressed and resolved with the guidance of the tree dispute principle established in Barker v Kyriakides [2007] NSWLEC 292.

2. The level of risk from branches dropping onto the roof is considered low and acceptable.

3. There are many factors, considered under s 12, that illustrate the significant ecological contribution that these trees provide. Ideally, any unnecessary above or below ground intervention to the trees should be avoided.

Orders

33. Accordingly, the application is dismissed.

………………………….

J Douglas

Acting Commissioner of the Court

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Decision last updated: 25 January 2019