Manasseh v Segal

[2016] NSWLEC 1014

Land and Environment Court

New South Wales

Medium Neutral Citation:	Manasseh v Segal & anor [2016] NSWLEC 1014
Hearing dates:	20 January 2016
Date of orders:	20 January 2016
Decision date:	20 January 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 17.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage or injury; debris; obstruction of sunlight; orders for installation of a bracing cable.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Murray v Shoebridge [2007] NSWLEC 785 P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Heather Manasseh (Applicant) Susanna Segal (First Respondent) Christopher Sheehan (Second Respondent)
Representation:	Heather Manasseh, litigant in person (Applicant) Susanna Segal, litigant in person (First Respondent) Christopher Sheehan, litigant in person (Second Respondent)
File Number(s):	20923 of 2015

Judgment

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

Background

1. A Queensland Brushbox (Lophostemon confertus) stands in a small rear courtyard in densely populated Ultimo. Ms Segal and Mr Sheehan (‘the respondents’) have owned the property, and the tree, since 2004. Their property is one in a row of west-facing terrace houses. A narrow right-of-way separates their rear courtyard from the back of another row of east-facing terrace houses. Ms Manasseh (‘the applicant’) has owned the property directly to the east of the tree for approximately 20 years.

2. Ms Manasseh is troubled by the tree: by the debris it drops, by the risk of large branches falling and by other issues. Pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) she has filed an application with the Land and Environment Court seeking orders for the tree to be pruned. In particular she would like three large branches removed entirely.

3. The respondents enjoy the benefits of the tree. They are willing to have the tree pruned but say the extensive pruning requested by Ms Manasseh would damage the tree and, if such pruning is required, they would prefer that the tree be removed. They are willing to pay for minor pruning but suggest that Ms Manasseh should pay for the tree’s removal should that be required.

Framework of the Trees Act

4. According to the Trees Act, before the Court can make orders it must be satisfied that the tree 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. The Court is then required to consider a range of matters at s 12 of the Trees Act, before making orders as described at s 9 of the Act.

5. Neither party submitted expert reports. The onsite hearing allowed inspection of the tree and relevant issues. I bring my own arboricultural experience and expertise to the matter. Ms Manasseh’s neighbour Mr Yee also attended the hearing. He expressed his own concerns about the tree but is not a party to the hearing. His statements are not relevant to any jurisdictional tests.

6. Although the applicant’s and respondents’ properties are separated by a right-of-way that is possibly public land, that does not prevent the properties being regarded as ‘adjoining’ for the purposes of the Trees Act. This issue has been addressed in P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128 and Murray v Shoebridge [2007] NSWLEC 785.

The tree

7. The Brushbox is perhaps 16 metres tall, with a crown spread of approximately 10 metres. Two stems arise from ground level, the southern stem forking into two at approximately 2 metres above ground, and the southern stem above that forking again at approximately 4 metres above ground. The fork at 2 metres above ground is narrow and appears to contain some included bark. Other forks in the stem appear well formed. Overall crown structure appears sound and there is little deadwood held in the crown. The tree is close to the brick wall of an old outhouse but does not appear to be leaning on it.

Issues of concern for the applicant

Is the tree too large?

8. Ms Manasseh says the tree is too large for such a densely populated area. There is nothing in the Trees Act that would give the Court jurisdiction to make orders for interference based on a tree’s size alone. Ms Manasseh has described the tree as 150 feet tall. It is perhaps 16 metres tall.

Debris

9. Ms Manasseh says that a tremendous amount of leaf litter collects on roofs and in guttering. She says this attracts vermin. The respondents admit they cannot keep the rear laneway clear of debris. However it appears that the laneway is more likely to become blocked by rubbish and other materials rather than debris from this tree. The amount of debris that falls on Ms Manasseh’s veranda is no more than is found in the vicinity of many urban trees. The Court established a principle in Barker v Kyriakides [2007] NSWLEC 292 regarding debris: for those who enjoy the benefits of trees in the urban environment, some outdoor maintenance is to be expected, including the cleaning up of fallen leaves, twigs, flowers and fruit. There is nothing about the situation here that would lead me to veer from this well-established principle.

10. The respondents say that vermin are attracted to the area by food waste and so on, rather than by the tree. I accept this, but even if debris from the tree attracted vermin, that would not be a matter over which the Court has jurisdiction, as explained by Preston CJ at paragraph 189 in Robson v Leischke [2008] NSWLEC 152.

Branch failure

11. Ms Manasseh says the tree moves a lot in high winds and that branches may fail and cause damage or injury. It turns out that the three branches she wants removed are stems or scaffold branches – their removal would result in the loss of approximately two thirds of the tree’s crown. It would not be viable to retain the tree with such extensive pruning.

12. There are no defects in the upper crown and no signs that branch failures are likely. Apart from the fork at a height of two metres, other forks between stems appear sound and are not at risk of failing. The narrow fork at two metres may pose some risk of failing. Failure of a stem may cause injury, thus the Court’s jurisdiction is enlivened. While further investigation could reveal more about the internal structure of this fork, that would come at some expense to the respondents, while the preventative measures required to address this issue (being the installation of a cable) are relatively cheap and harmless to the tree. While I see no need for the Court to make orders to prune the tree, I note that the respondents intend to have some pruning done at the same time.

Uprooting

13. Ms Manasseh is also worried that in strong winds the tree may be uprooted and will fall onto her dwelling. There were no signs that roots have been disturbed or that the rootplate has been displaced at all during strong winds. The mere possibility of such an event is not sufficient for the Court to make orders.

Obstruction of sunlight

14. Ms Manasseh says the tree’s expansive crown causes a lack of sunlight to her property and neighbouring properties. This is not a jurisdictional test under Part 2 of the Trees Act, but is a factor that can be considered under s 12 of the Act. The tree was present when Ms Manasseh purchased her property and was, by her own admission, already as tall as the peak of her roof. It shaded her veranda then, even if to a lesser extent than it does now. While additional shading in winter may be of concern to her, the shade from hot summer afternoon sun is likely to be a benefit to all those near the tree.

Damage by tree roots

15. Ms Manasseh suggested the roots are causing damage to the old sewer pipes along the right-of-way, and possibly her own sewer pipes. In the absence of any evidence whatsoever that this is the case, I cannot be satisfied that roots are causing damage and I will not make any orders on this basis.

Brick wall

16. Similarly, there is no evidence that the tree is displacing the brick wall of the outhouse, and no evidence that the wall is likely to collapse. I will not be making any orders on this basis.

Orders

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

1. The application is upheld.

2. Within 90 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF Level 3) to install a bracing cable between the two stems that fork at approximately two metres. The cable should be installed at approximately two thirds the height of the tree.

3. The works in (2) are to be done in accordance with the NSW WorkCover Code of Practice for the Amenity Tree Industry.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 20 January 2016