Newman v Graham

[2024] NSWLEC 1512

Land and Environment Court

New South Wales

Medium Neutral Citation:

Newman v Graham [2024] NSWLEC 1512

Hearing dates:

9 April 2024

Date of orders:

9 April 2024

Decision date:

09 April 2024

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The Court orders are:

(1) Within 90 days of the date of these orders, the respondents, at their expense, shall have contractors: prune all deadwood extending over the applicant’s land from Eucalyptus T5 back to live branch junctions, and, remove Glossy Privet T7, including grinding the Privet tree’s roots to at least 250 mm below ground level and reconsolidating excavated soil.

(2) The works in Order 1 shall be completed by Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances.

(3) Within 90 days of the date of these orders, the respondents, at their expense, shall re-straighten and re-attach the timber common boundary fence in the vicinity of T7, so the fence is serviceable and fit for purpose.

(4) All tree works shall comply with AS: 4373:2009 Pruning of amenity trees, and the Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016.

(5) The applicant shall undertake no excavation, root cutting, or soil surface disturbance within 5 metres of the base of any of the respondents’ trees.

(6) The applicant shall allow access for the respondents’ contractors to undertake the various works upon receipt of 72 hours’ notice of the date of works, by email.

(7) All works shall be completed during reasonable daytime working hours.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage to house and yard – tree debris falling onto roof and gutters – fence damage from tree roots – orders made

Legislation Cited:

Dividing Fences Act 1991, s 13A

Environmental Planning and Assessment Act 1979

Trees (Disputes Between Neighbours) Act 2006,

Pt 2, ss 7, 8, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Hendry & anor v Olsson & anor [2010] NSWLEC 1302

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016

Standards Australia, AS4373-2007: Pruning of amenity trees

Category:

Principal judgment

Parties:

Michael James Newman (Applicant)
Douglas Graham (First Respondent)
Geraldine Graham (Second Respondent)

Representation:

M Newman (Self-represented) (Applicant)
D Graham (Self-represented) (First Respondent)
G Graham (Self-represented) (Second Respondent)

File Number(s):

2024/46462
`

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by Michael James Newman of Cooma, relating to nine trees in the neighbouring property of the respondents, Douglas Graham and Geraldine Graham.

2. Mr and Ms Graham occupy a corner property with two street frontages which shares a long side boundary with Mr Newman’s land, a large block located on the respondents’ western side. A substantial park containing Cooma Creek meets and shares the respondents’ southern boundary. Mr Newman’s dwelling is near the front of his block with its side wall about 7 metres (m) from the common boundary, while a long narrow “Granny flat” located behind the dwelling reaches about 2 m closer.

3. Most of the Graham’s trees were well established and some encroached beyond the common boundary. Mr Newman submitted that leaves from the Graham’s trees had damaged his gutters and he proposed that the respondents cut their trees back to the boundary to eliminate any canopy encroachment and prevent leaves falling on his land. The respondents valued the trees and the benefits they provided. They claimed they had pruned and managed the trees responsibly and resisted heavy pruning of the trees.

4. Moving from the street frontage towards the rear, trees near the common side boundary subject of the application are:

T1	Cotoneaster
T2	Japanese Honeysuckle
T3	Glossy Privet
T4	Cypress Pine
T5	Eucalyptus
T6	Eucalyptus
T7	Glossy Privet
T8	Plum tree
T9	Box Elder

5. In his Tree Dispute Claim Details (Exhibit B), at question 4, Mr Newman noted that T1 – T3, which were small trees located in a confined area near the boundary adjacent to the properties’ northern frontage, “are invasive plants (which) have never been pruned and are invading my property”. He said T4, which was deeper within the respondents’ property behind a caravan, was “a pine Tree and is killing my lawn with Pine needles and continually rubbing against internet cable”.

6. Mr Newman claimed that T5 and T6, the canopies of which encroached beyond the boundary, “have caused damage to my veranda with branches smashing my lazerlight sheet and causing mould by blocking the sun. These two trees’ leaves have caused damage to my guttering as they overhang my property and fill up my gutters with leaves”.

7. T7-T9 were located towards the southern end of the common boundary though the applicant’s east side boundary extended much further southward. Along with T4 and T5, Mr Newman contended that T7-T9 “have damaged the fence in several places and the root system is invading my property”.

The on-site hearing

8. Cold light rain accompanied the start of the morning hearing, foreshadowing the bleak winter ahead. Both parties were self-represented, and the trees and alleged damage were inspected from both properties, prior to oral submissions.

9. Mr Newman proposed the Court make the following (disidentified) orders:

1. Removal of all branches from all trees that are overhanging the (common boundary) fence and a deadline for completion to be set by the court.

2. Removal of all dead and suspect limbs likely to cause damage to the shared (common boundary) fence and to prevent the risk of injury to occupants and pets from limbs falling into the applicant’s property.

3. Replacement of fence sections damaged by root systems or tree limbs to again enable the security of the (applicant’s) property so pets (dogs) cannot escape.

4. Replace palings that are rotten due to garbage piled up against the fence.

5. Reconnect parts of the fence that have separated ensuring a continuous fence line.

6. Payment for the supply and installation of replacement guttering on the granny flat, damaged due to a build-up of gum leaves from overhanging trees.

7. Removal of all root systems, vines, branches etc. of trees, shrubs hedges and other plants that have entered the boundary of (the applicant’s land).

8. Payment for the supply and installation of damaged roof sheeting (Green Lazerlight) on the veranda.

9. Reimbursement of Sheriff Fees, Land title search and Lodgement Costs of this application as respondents did want to avoid court and failed to reply to any letters sent personally asking them to take action and my attempt to mediate with aid of Community Justice Centre Mediation.

10. Cutting down of all trees to a maximum height of 8 meters to allow morning sunlight and re-instate the view from the applicant’s veranda and side lawn.

11. Payment for remedial lawn care killed due to pine tree needles smothering and poisoning the lawn.

12. A deadline for all payments to be made after receiving invoices and remedial action completed.

13. Costs be awarded to have a professional clean the guttering of both the main house so as to remove all gum leaves and gum tree debris.

14. Costs to be awarded to remove the mould from the roof of the applicant’s Granny Flat and Main House which is mould due to lack of sunlight blocked by Trees.

15. Removal of a portion of the Hedge and root system at the front of (the respondents’ land) so as to permit a dividing fence (colourbond) to be built between the two properties. An Order to keep the Hedge maintained due to it being made up of at least two aggressive plants being Glossy Privett and Cotoneaster.

16. The cost of a colourbond fence (supply and installation) be shared 50/50 constructed in the area referred to in Order #13.

17. The total cost of the removal of the hedge so that construction of a colourbond is possible to be met solely by Douglas and Geraldine Graham.

10. The respondents’ written submission (Exhibit 1) included copies of correspondence from Mr Newman during November 2023 which indicated the tree dispute arose as a consequence of a violent incident involving one of Mr Newman’s dogs. Exhibit 1 largely comprised the respondents’ account of subsequent alleged harassment by the applicant.

11. During oral submissions, however, Mr and Ms Graham contended that the boundary trees were already present upon their occupation, and combined with trees in the adjacent park, provide habitat for birds and possums. The respondents said the trees provided shading and protection from westerly winds and from frosts. The Graham’s noted a recent inspection of the trees by a representative from Snowy Monaro Council (Council), which determined that the trees were currently not a risk of damage or injury.

12. In response to Mr Newman’s proposed orders, Mr and Ms Graham queried the age of the applicant’s dwelling and ‘Granny flat’ and noted that the guttering was old and deteriorated. They said they had received no contemporaneous notification of damaged Lazerlight roof sheeting on the veranda, that no branches were currently present on the sheeting, nor had they been provided with photographs or other evidence displaying that their trees’ branches caused such damage. Further, the respondents claimed they always maintained their trees.

13. Considering payment for remedial lawn care, at proposed Order 11, the respondents claimed the applicant’s lawn was okay, and that Mr Newman’s focus on the lawn was a recent ambit claim intended to maximise the respondents’ liability. With respect to compensation for invoices paid by Mr Newman, at proposed Order 12, the Graham’s contended they should have the opportunity to get their own quotes for works that may be ordered. With regards to payment for professional gutter cleaning, at proposed Order 13, the respondents contended this was normal house maintenance.

14. In concluding his submission, Mr Newman reiterated his claim that the respondents’ Eucalyptus leaves were smothering his lawn and again requested the trees be cut back to the boundary as he wanted “no impact from neighbours”.

Jurisdictional requirements

15. With respect to s 7 of the Trees Act, 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. Section 7 is satisfied as the trees were on adjoining land.

16. Section 8(1)(a) of the Trees Act is satisfied as Mr Newman served application documents on Mr and Mrs Graham with required notice. With respect to 8(1)(b), there was no evidence on file indicating the application documents were served on Snowy Monaro Council (Council), but even if this was not done, I have waived this requirement according to the Court’s powers at s 8(3) of the Trees Act, to provide for a cheap, quick, and just resolution of the matter. Council representatives rarely attend hearings and nothing specific about this case requires Council’s contribution. Further, a Council town planner inspected and assessed the common boundary trees at Ms Graham’s request in response to Mr Newman’s claims that the trees were dangerous, and in an email of 28 November 2023, reported no “immediate risk to life or property from any of the trees along the (respondents’) western boundary”.

17. Section 9 of the Trees Act provides the Court with powers to make a wide range of orders.

18. Pursuant to s 10(1)(a) of the Trees Act, I am satisfied that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the trees are situated. Mr Newman provided evidence of multiple written requests for pruning or removal of the trees and of attempts to mediate with the assistance of a Community Justice Centre, notwithstanding that the respondents exercised their right not to engage in mediation.

19. The next major test that is posed, by s 10(2), is that the Court must be satisfied that the tree concerned:

(a) has caused, is causing or is likely, in the near future, to cause damage to the applicant’s property, or

(b) is likely to cause injury to any person.

Findings

Damage or risk of injury caused by the trees

20. T5 was a mid-sized Eucalyptus tree overhanging Mr Newman’s land which contained an unusually high level of relatively long large dead branches. Based on fungal decay and cracks apparent in proximity to branch collars, I was satisfied that branch failure was probable in the next 12 months and resultant damage, albeit minor, was likely. The jurisdiction of the Trees Act covers damage likely to be caused by a tree in the near future, and in Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. Consequently, s 10(2)(a) of the Trees Act is engaged.

21. Though the human occupation rate was low, as many overhanging branches were long and heavy, the consequences of impact by a falling branch were potentially serious. Regardless that the risk of injury to persons is low, because it is easy and relatively inexpensive to mitigate the risk, I am satisfied the risk of injury in site context is sufficient to engage s 10(2)(b) of the Trees Act and justify intervention.

22. Mr Newman claimed Eucalyptus T6 was also “full of dead timber creating widow makers with the risk of falling”, but I was not satisfied this was so. T6 contained a low to moderate level of deadwood, but it was mainly fine and twiggy, and T6 was located further from the boundary than T5. Some sticks may fall from T6 onto the applicant’s land, but probably with little consequence.

23. The roots and stems of T7, a Glossy Privet, had heaved the common boundary fence towards Mr Newman’s land and caused referred fence damage, such that s 10(2)(a) of the Trees Act was again engaged.

24. T1 – T3, respectively, were a Cotoneaster, a Honeysuckle vine, and a Glossy Privet growing at the front of the respondents’ property, which Mr Newman claimed, “are invasive plants (which) have never been pruned and are invading my property”. Though T1 – T3 may have encroached beyond the boundary, there was no indication they were causing or had caused damage, nor were they likely to cause near future damage or risk of injury to persons.

25. Encroachment under common law is addressed in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), at [55]-[56], where Preston CJ says:

“55 Nuisances of the first kind, causing an encroachment, are exemplified by branches or roots of a tree growing on the defendant’s land, encroaching into the air above or the soil below the neighbour’s land: Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-07], p 1165.

56 Mere encroachment into the neighbour’s land is insufficient to complete a cause of action for nuisance; special damage must be suffered by the neighbour as a result of the encroachment to obtain the remedies of damages or injunction: Asman v MacLurcan (1985) 3 BPR 9592 at 9594.”

26. Similarly, the Trees Act provides no restriction or remedy for branches and roots encroaching across boundaries unless they also cause damage, or risk of injury. Therefore, the Court has no powers to make orders for T1 – T3.

27. Regarding Mr Newman’s contention that T7-T9 “have damaged the fence in several places and the root system is invading my property”. T7 was causing fence damage, as noted above at [23], but T8 and T9 were not causing such damage. During submissions, Mr Newman proposed an additional order for removal of all the respondents’ trees’ roots from his land by a Landscape Gardener. Other than the impact of the roots of T7 on the boundary fence, however, Mr Newman provided no evidence of damage by roots of the respondents’ trees. Further, it is usual for the roots of urban trees to encroach beyond boundaries and the roots of a large Willow tree behind Mr Newman’s Granny flat were likely to be growing within the respondents’ soil. As his Honour found in Robson; at [166]:

“Hence, damage caused by a tree's roots to buildings, fences, paving or other structures, or to fruit trees, crops, ornamental gardens or other vegetation growing on a neighbour's land, may be covered by the Trees (Disputes between Neighbours) Act 2006 but damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes between Neighbours) Act 2006.”

28. Considering the claim that lazerlight sheeting above the applicant’s deck was damaged by wind-blown branches, Mr Newman’s submitted no photographs or other evidence relating to any incidence of damage, nor did he dispute the respondents’ claim that they were never notified of such damage. The lazerlight sheeting was over 25 years’ old and perished. When I clasped the end of a lazerlight sheet, it disintegrated in my hand. It was no longer fit for purpose. Based on the adduced evidence, Mr Newman’s compensation claim for damage to lazerlight sheeting is refused.

Dropping debris

29. Mr Newman contended that scale leaves dropping and blowing from the Cypress tree (T4) were preventing his lawn growth, and T5 and T6 had, “caused damage to my guttering as they overhang my property and fill up my gutters with leaves”.

30. Regardless that leaves and debris falling from neighbouring trees may be unwelcome, this does not constitute damage under the Trees Act, as his Honour explains at [171] of Robson:

“However, annoyance or discomfort to the occupier of the 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 of trees 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.”

31. As many applications under the Trees Act include claims conflating falling debris with damage, the Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 (Barker), which, at [20], states:

“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, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree.”

32. The gutters appeared to be old and rusted and, particularly on the Granny flat, their function was compromised as they were unusually tilted down at the front. Though the trees were not overhanging the gutters, it was likely that debris blown from the trees would accumulate on the roof. Considering the Tree Dispute Principle in Barker, however, the required maintenance, including regular gutter clearing, is reasonable, thus the applicant’s claims of damage from dropped or blown tree debris, and consequent gutter damage, are refused.

33. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [11] to [14], the maintenance expectation arising from Barker was extended to include the cleaning of mould and slime. Therefore, Mr Newman’s claims for cleaning of mould and professional gutter cleaning are also refused.

Other proposed orders

34. There is no remedy under Mr Newman’s Pt 2 application for proposed order 10 for, “Cutting down of all trees to a maximum height of 8 meters to allow morning sunlight and re-instate the view from the applicant’s veranda and side lawn”. Orders pursuant to severe obstruction of sunlight to a window of a dwelling or severe obstruction of views by a hedge requires an application under Part 2A, rather than Pt 2 of the Trees Act. Further, though the trees were growing along the boundary, this alone does not make them a hedge for the purposes of the Trees Act.

35. Finally, with respect to Mr Newman’s proposed order 9 for “Reimbursement of Sheriff Fees, Land title search and Lodgement Costs of this application as respondents did want to avoid court and failed to reply to any letters sent personally asking them to take action and my attempt to mediate with aid of Community Justice Centre Mediation”, Commissioners do not have powers to make such orders. Applications for costs of this nature are heard by a Judge or Registrar of the Court upon lodgement of a Notice of Motion.

36. In summary, upon consideration of Mr Newman’s myriad claims, T5 is likely to cause near future damage and presents a risk of injury to persons, and T7 has damaged the common boundary fence. Each of these circumstances satisfy s 10(2) of the Trees Act. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain, or prevent damage to property or injury to persons but the Court must first consider relevant discretionary matters in s 12 of the Trees Act.

Discretionary matters – s 12

37. The trees are located in the respondent’s property at various distances from the common side boundary. T4 and T6 were well within the respondents’ land while T1-T3, T5, and T7-T9 were close to the boundary. T7 was likely self-sown adjacent to the fence (ss 12(a)).

38. Removal or major pruning of T4-T6 would require permission under Council’s Tree Management Policy, which is made under the jurisdiction of the Environmental Planning and Assessment Act1979 (ss 12(b)).

39. Pruning of deadwood from T5 shall be ordered to mitigate potential damage and risk of injury. Pruning of low overhanging branches from Box Elder, T9, and deadwood likely to bother Mr Newman from T6, is also recommended but shall not be ordered as neither of these trees engaged the jurisdiction. Unnecessary removal of live foliage is not recommended as this reduces trees’ capacity to photosynthesise and produce sufficient carbohydrates for all essential functions. All pruning should comply with AS4373-2007: Pruning of amenity trees (ss 12(b2).

40. Mr Newman discussed plans for a concrete base for a dog run in close proximity to the respondents’ trees. Orders shall be made to protect the respondents’ trees’ roots from the proposed construction.

41. The trunk of T5 displayed subtle indications of a past lightning strike, the stress from which may explain the high level of major deadwood. Though an old trunk wound also displayed fungal brackets, I was not particularly concerned about structural implications, as the tree was growing vigorously, and the trunk appeared to have thickened considerably since the historical wounding. Nonetheless, under the circumstances, it would be prudent to have T5 inspected by an AQF level 5 arborist.

42. The trees contribute to privacy, to landscaping, and to the amenity and scenic value of the respondents’ land. They provide protection from wind and sun and contribute to local biodiversity by providing food and habitat. Considering the proximity to the adjacent park, the trees were sufficiently large and conspicuous to also provide intrinsic value to public amenity (s 12(b3), (d)), (e), and (f)).

43. The trees are likely to stabilise surrounding soil and, along with the applicant’s Willow tree, reduce localised water accumulation (ss 12(g)).

44. Section 12(h) considers, (i) anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and, (ii) any steps taken by the applicant or the owner of the land on which the trees are situated to prevent or rectify any such damage. The age and nature of the structure is assessed under this element, where the Court considered wear and tear associated with the deterioration of the gutters, and the lazerlight sheeting. Failure to give notice to the tree owner/s when damage was noticed is another consideration under s 12(h)(i) relevant to the alleged lazerlight sheeting damage.

45. Though T7 had caused damage, overall, the fence appeared in serviceable condition.

Conclusion

46. Having considered the parties submissions and inspected the trees in site context, I reached the following conclusions:

1. Orders shall be made for pruning of major deadwood from T5, removal of T7, repair of the common boundary fence damaged by T7, and protection of roots during construction of Mr Newman’s proposed dog run.

2. Mr Newman proposed an order pursuant to s 13A of the Dividing Fences Act 1991, for a new Colorbond fence, which the respondents resisted. As the fence damage consequent to T7 was isolated, and repairs required to reinstate a “sufficient fence” were relatively minor, I was not satisfied that orders for a new fence were reasonable or required.

3. Mr Newman’s claims regarding damage to his gutters and lawns, as a result of leaves or other light debris falling from the trees, are refused through the application of the Tree Dispute Principle established at [20] of Barker. Consequently, the Court has no powers to make orders under the Trees Act based on these elements of the applicant’s claim.

4. Considering the respondents submissions, the trees provide a range of valuable environmental services for the respondents and the broader community.

Orders

47. The Court orders that:

1. Within 90 days of the date of these orders, the respondents, at their expense, shall have contractors: prune all deadwood extending over the applicant’s land from Eucalyptus T5 back to live branch junctions, and, remove Glossy Privet T7, including grinding the Privet tree’s roots to at least 250 mm below ground level and reconsolidating excavated soil.

2. The works in Order 1 shall be completed by Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances.

3. Within 90 days of the date of these orders, the respondents, at their expense, shall re-straighten and re-attach the timber common boundary fence in the vicinity of T7, so the fence is serviceable and fit for purpose.

4. All tree works shall comply with AS: 4373:2009 Pruning of amenity trees, and the Safework Australia, Guide to managing the risks of tree trimming and removal works, 2016.

5. The applicant shall undertake no excavation, root cutting, or soil surface disturbance within 5 metres of the base of any of the respondents’ trees.

6. The applicant shall allow access for the respondents’ contractors to undertake the various works upon receipt of 72 hours’ notice of the date of works, by email.

7. All works shall be completed during reasonable daytime working hours.

J Douglas

Acting Commissioner  of the Court

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Decision last updated: 21 August 2024