McLellan v Hull; Randell v Hull
[2013] NSWLEC 1209
•31 October 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: McLellan & anor v Hull & anor; Randell & anor v Hull & anor [2013] NSWLEC 1209 Hearing dates: 31 October 2013 Decision date: 31 October 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Applications upheld in part; pruning ordered
Catchwords: TREES [NEIGHBOURS] Damage to property; Sooty Mould beyond jurisdiction Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
Robson v Leischke [2008] NSWLEC 152
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592Category: Principal judgment Parties: 20561: J & S McLellan (Applicants)
20597: A & J Randell (Applicants)
Both matters: J & P Hull (Respondents)Representation: 20561: Applicants: J & S McLellan (Litigants in person)
20597: Applicants: A & J Randell (Litigants in person)
Both matters: J and P Hull (Litigants in person)
File Number(s): 20561 of 2013 20579 of 2013
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: The owners of two properties in North Balgowlah, the McLellans and the Randells, have applied under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the pruning of branches from an oak tree growing on an adjoining property.
The applicants claim that branches from the tree could cause damage to their properties, specifically to the McLellans' garage roof and the Randells' dwelling roof and electricity/communications cables.
The applicants also raise concerns about debris falling from the tree and in particular the fallout of a 'black excretion' (Sooty Mould) onto their properties. They contend that the Sooty Mould stains pavers and other elements of their properties.
The first respondent has no objection to the removal of dead wood but is concerned about the removal of too much foliage as the tree is a habitat tree for Tawny Frogmouths (seen in the tree). The second respondent has no objection to the removal of other branches.
Section 7 of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the applicant's land, as a consequence of a tree to which the Act applies that is situated on adjoining land.
The tree is a mature Quercus robur (English Oak). It is growing at the rear of the respondents' property and overhangs the adjoining properties owned by the applicants. The first respondent indicated where several large branches had been removed without her consent.
The McLellans engaged an arborist, Mr Peter Castor of the Tree Wise Men to prepare a brief report on the tree. Mr Castor notes that at the time of his inspection in December 2012, the tree was healthy with no obvious structural defects. With the expertise I bring to the Court I concur with Mr Castor's appraisal however I observed a number of dead branches throughout the canopy. I consider the percentage of dead wood to be within the normal range for a tree of this age, size and species.
Based on conversations with the McLellans, Mr Castor recommends removal of dead wood in excess of 50mm in diameter, pruning of branches in contact with the asbestos roof of the respondents' shed, pruning of branches in contact with the Randells' roof, and pruning to provide clearance for powerlines and a clothesline.
In addition, Mr Castor suggests monitoring the population of aphids in the tree, and if necessary, taking steps to manage their numbers.
In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This states that the Court must not make an order 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.
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...".
As both applications are concerned in part about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined 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, any history of failures and the circumstances of the site apparent at the time of the hearing.
The McLellan property
While injury was not raised as an issue in their application, the McLellans stated that they were concerned about branches from the tree that were rubbing across the asbestos roof of the respondents' shed. They are concerned that should this happen in the future, the resulting fibres could cause injury to their children.
I observed there to be at least a metre clearance between the nearest branch and the roof of the shed.
In regards to this concern, the Act does not apply to damage to a respondent's property as a consequence of their own tree. Likewise the Act requires the injury to be as a consequence of the tree and not by things other than the tree. If I am wrong in this interpretation of the Act, I am not satisfied on the evidence that that part of the tree is likely to cause injury to any person in the foreseeable future and s 10(2) is not met with respect to that concern.
The McLellans raised the issue of debris on their garage roof and the blocking of gutters and water tank, however they could not produce any evidence of any actual damage as a consequence of that blockage.
Absent any evidence, s 10(2) cannot be satisfied. However, if I am wrong in this, as a matter of discretion, no orders would be made for any intervention with the tree on that basis. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that:
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.
There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis. I am not satisfied that there are any exceptional circumstances in this matter that would lead me to deviate from this consistent approach.
Both applicants raised the issue of staining of paving etc by the Sooty Mould. Mr Castor refers to aphids feeding on the tree. The aphids exude a sugary substance - "honey dew". The honey dew becomes a substrate or food for a fungus - the Sooty Mould. The mould washes of the leaves onto surfaces below the tree.
In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [189] states in part:
189 Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes the damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat....
A number of cases have dealt with various organisms including bees, mosquitoes, possums and bats. Sooty Mould as a fungus is another category of organism that is secondary to the tree. In my opinion, the Act therefore does not apply. However, again if I am wrong in this interpretation, in Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at paragraphs [11]-[14], the Tree Dispute Principle in Barker was extended to include the cleaning of mould or slime.
As stated above, I observed overhanging dead wood of a size that could in the near future cause damage to the McLellans' property. Therefore s 10(2) is satisfied and orders can be made for the removal of that dead wood. As there is at least a metre clearance between the tree and the garage, there is no basis to order any removal of live branches over the McLellans' property.
The Randell property
The Randells' concerns are similar to those of the McLellans. However, unlike the McLellan property, there are branches of the oak tree in direct contact with the roof of their dwelling.
While Mr Randell stated that a roofing contractor recently found cracked mortar on the roof, this was found well after the application was made and there is no certainty that the cracking has been caused by the tree.
However, given the contact between the tree and the roof I am satisfied that the tree could in the near future cause damage to the roof and some pruning is reasonable.
I also observed branches from the oak tree touching both the electrical service line and the communications cable that run from the pole in the street to the Randall's dwelling. As this could cause damage, orders will also be made for pruning to achieve a suitable clearance.
In regards to the relevant discretionary matters in s 12 of the Act, the pruning to be ordered will not, in my opinion, have any detrimental impact on the health, condition, amenity or habitat value of the tree. The orders will require the pruning to be undertaken by an appropriately qualified arborist and in accordance with the Australian Standard for the Pruning of Amenity Trees.
Orders
In matters 20561 of 2013 and 20597 of 2013 the Orders of the Court are:
(1) The applications are upheld in part.
(2) Within 40 days of the date of these orders, the Respondents are to engage and pay for an AQF level 3 arborist with appropriate insurance cover to remove all dead wood 50mm or greater in diameter at its base from all parts of the tree overhanging 30 Woodbine Street and 2 Kalaui Street, North Balgowlah. The removal of dead wood is to extend 2 metres into the respondents' property where it borders these properties.
(3) In addition to the works in (2) the arborist is to reduce the ends of the branches that overhang and or touch the dwelling and communications and electrical service line on 2 Kalaui Street to provide a clearance of a minimum of one metre from those elements of that property.
(4) The pruning in (2) and (3) is to be carried out in accordance with the general provisions of AS4373:2007 Pruning of Amenity Trees and with the specific provisions of s 7.2.2 Deadwooding and s 7.3.2 Reduction pruning in that standard. The work must also be carried out in accordance with the NSW WorkCover Code of Practice for the Amenity Tree Industry.
(5) The applicants are to provide access for the purpose of quoting and for the carrying out of the works in (2) and (3) in a safe and efficient manner on reasonable notice (usually two days).
(6) Orders (2) to (5) are to undertaken every two years in the month of November until the tree is removed.
____________________
Judy Fakes
Commissioner of the Court
Decision last updated: 31 October 2013
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