Panganis v NSW Department of Housing

[2024] NSWLEC 1848

Land and Environment Court

New South Wales

Medium Neutral Citation:

Panganis v NSW Department of Housing [2024] NSWLEC 1848

Hearing dates:

23 July 2024

Date of orders:

23 July 2024

Decision date:

23 July 2024

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders that:

(1) The application is refused.

Catchwords:

TREES ([(DISPUTES BETWEEN NEIGHBOURS)NEIGHBOURS)]: – likely dwelling damage and risk of injury claimed – removal required as condition of dwelling construction contract

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12

Uniform Civil Procedures Act 2005

Inner West Local Environment Plan 2022

Cases Cited:

McPherson v Lake [2017] NSWLEC 1081

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

Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Elizabeth Panganis (Applicant)
NSW Department of Housing (Respondent)

Representation:

Counsel:
E Panganis (Self-represented) (Applicant)
C Fryer (Solicitor) (Respondent)

Solicitors:
DCJ Legal (Respondent)

File Number(s):

2024/173408

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: This is an application under s 7 of Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) by Elizabeth Panganis of Balmain (the applicant), who proposed the Court make orders for the removal of two trees growing in an adjoining multi-dwelling property, owned by the NSW Department of Housing (Housing) (the respondent). The properties share a side boundary but are accessed from different streets.

2. Two mid-sized Eucalyptus scoparia (Wallangarra White Gum) (the trees) were growing in a confined space close to the common boundary behind dwellings on the respondent’s land. To access sunlight from the west, the trees (T1 and T2) had grown long low branches over the applicant’s single story timber cottage. In 2019, a third Eucalyptus scoparia (T3), growing over the applicant’s cottage from the respondent’s land, had collapsed onto the roof of the applicant’s dwelling. The tree was removed by a crane. After an investigation, repair costs were recovered by the applicant’s insurer and no excess was imposed on Ms Panganis as the respondent (at that time called NSW Land and Housing Corporation) was found responsible for the damage. A tenant had previously warned Housing that T3 was unsafe as its roots were lifting, but the tree was subsequently assessed by Housing as only requiring some branches pruned rather than removal.

3. By 2022, Ms Panganis was preparing to lodge a DA for the demolition of her dwelling and construction of a new two-storey dwelling and needed branches removed from T1 and T2 to provide clearance for her building works. Inner West Council (Council) required a letter from Housing providing written permission for the pruning. In May 2022, Ms Panganis contacted Mr Paul Day, a Project Officer from Housing, seeking permission for pruning of branches overhanging her property from T1 and T2. Mr Day’s reply noted a requirement for a “licenced arborist report” from Ms Panganis, which detailed the location of the trees on a site map, the size, length, and location of the branches on the trees, and whether removal of these branches would increase future risk for Housing, and their tenants.

4. After difficulty finding a suitable arborist, Ms Panganis sent Mr Day an arborist report from Mr Hayden Coulter of The Ents Tree Consultancy in October 2022. At question 32 of the Tree Dispute Claim Details (Form H), regarding efforts to reach agreement with the respondent, Ms Panganis contended that she had still received “no approval (from Housing) after numerous phones and emails”. Copies of emails in the applicant’s Annexure A of 10 May 2024 only covered May 2022 to August 2022, however.

5. At question 31 of Form H, addressing “other matters considered relevant in the circumstances of the case”, Ms Panganis noted suffering a fire in October 2022 that left her “with a shell of a house with no bathroom, kitchen, laundry and no electrical wiring and the roof is beginning to cave in”. The applicant said she moved to temporary accommodation until August 2024 and claimed, “[a] builder will not build unless the gum trees are removed due to the damage to the house they will cause”.

The onsite hearing

6. At the onsite hearing, Ms Panganis was self-represented while the respondent was represented by Ms Clementine Fryer, Solicitor, of DCJ Legal, and an officer from Housing. As Ms Panganis had claimed, the trees, which were initially inspected from the respondent’s property, had long low branches extending over the applicant’s dwelling. However, there was no evidence of damage by branches to the dwelling roof or walls, nor any sign of incursion or damage by roots of the trees when the area between the dwelling and the common boundary was subsequently inspected on the applicant’s land.

7. At question 4 of Form H, regarding damage caused by the trees, Ms Panganis described how T3 “lifted from its roots in high winds and crashed through our house”. Further, Ms Panganis claimed, “our house is structurally unsound. In order to put on a new build, Eagle Homes, have a requirement in their contract conditions that there is to (be) no trees within 3 metres of the boundary”.

8. With respect to the trees’ likelihood to cause injury, at question 9 of Form H, Ms Panganis contended that T1 and T2 were likely to uproot and collapse because of the trees’ size, their close proximity to the common boundary, their size, and canopy spread over the applicant’s dwelling, and because the root anchorage of T3 had failed.

Arboricultural evidence

9. Ms Panganis procured a Tree Pruning Specification Report from The Ents Tree Consultancy in October 2022 (Ents report), which provided an assessment of Ttree Health, Structural Condition, Useful Life Expectancy (ULE), Landscape Significance (STARS), and Retention Value. Appendix 7 of the Ents report detailed the methodology involved in the respective determinations of Landscape Significance and Retention Value.

10. The Ents report described both trees were as having average structure, below average health, and average size “for their age which appears to be related to their growing conditions which include a soil structure impacted by urban constraints”. The Ents report estimated the trees’ height at 18 m with a canopy spread of 14 m. Nonetheless, the report determined “the trees are significant in the immediate landscape and are likely to be considered important in the local areas’ landscape in terms of amenity and function due to their size, position or contribution to the streetscape”. T1 and T2 were both assigned High Landscape Significance and High Retention Value per the Institute of Australasian Consulting Arboriculturists (IACA) tree rating systems.

11. Under Recommendations, at 5.1, the Ents report noted, “[a]ll trees assessed did not appear to have any significant wounds or defects that warrant their removal. All trees assessed have a low level of risk for people and property”. Considering “recent disturbances to the house and land, related to a fire that ruined the house”, the Ents report said, “[t]he trees did not appear to be impacted by the fire.” The Ents report specified pruning one large live branch above the applicant’s dwelling from each tree, with branch collar diameter of about 250 mm on T1, and about 200 mm on T2. The report also noted the trees had a moderate level of deadwood but did not explicitly recommend deadwood pruning.

12. Housing submitted an Arboricultural Risk Assessment Report and Maintenance Program dated 27 June 2024, by Mr Mohammad Abbas of Action Arbor (Action report), which addressed 20 trees spread across the large property. Both Mr Abbas and Mr Coulter noted holding AQF level 5 in Arboriculture, the minimum qualification requirement for ‘expert arborists’, and acknowledged having read and being bound by the Expert Witness Code of Conduct in Schedule 7 of the, Uniform Civil Procedure Rules 2005, Uniform Civil Procedure Act, 2005.

13. The Action report noted that the site is zoned R1: General Residential and is located within ‘The Valley’ Heritage Conservation Area pursuant to the Inner West Local Environment Plan 2022 (IWLEP) and that a DA was required for all tree removals and for pruning of all branches above 150 mm diameter. The Action report identified the trees generically as Eucalyptus sp, with estimated height of 12 m and canopy spread of 10 m. The report noted the assessment was limited because “access to rear yard unavailable”. Health, Structure, and Form were all listed as Fair, and the trees were assigned Medium Landscape Significance and Retention Value. Both trees had a Risk Rating of Low. My estimate of tree size sat between the arborist’s determinations, at about 15 m tall x 12 m canopy spread.

14. On 28 June 2024, Housing submitted Proposed Orders that were based on the recommendations and site diagram of the Action report. The Orders proposed removal or pruning of 13 of the 20 trees in the Action report. No works were proposed for T1 and T2, however, so the Proposed Orders submitted by the respondent were irrelevant.

Jurisdictional requirements

15. 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.

16. The Court’s ability to make orders is limited, at s 10 of the Trees Act.

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is 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.

17. If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Trees Act.

Reasonable effort to reach agreement

18. Ms Panganis noted initial difficulties accessing appropriate Housing staff and provided copies of emails between May and August 2022 with Mr Paul Day, the relevant Project Manager. Ms Panganis procured the Ents report and submitted it as required in October 2022, yet said “[t]o date I have not had a reply to give permission to prune/ remove gum trees”.

19. Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), includes extensive commentary about the reasonable effort to reach agreement. At [194 – 195], Preston CJ says:

“194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application.

195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made “a reasonable effort to reach agreement” is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process.”

20. Consequently, I am satisfied that the applicant has made a reasonable effort to reach agreement, and that s 10(1)(a) of the Trees Act is engaged.

21. Section 10(1)(b) was also engaged as Ms Panganis provided evidence of appropriate service of the application and proposed orders to both Council, and Housing.

22. The principal jurisdictional tests are next, at s 10(2) of the Trees Act. This states:

(2) The Court must not make an order under this Part unless it is 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.

23. The onus is on the applicant to provide sufficient appropriate evidence to prove a nexus between the tree/s and alleged damage, or the likelihood of injury to a person, on the balance of probabilities. With respect to near future damage, based on 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. In Robson, at [179], his Honour notes the tree need not be the sole cause of damage to property on an applicant’s land in order to engage the Court’s jurisdiction.

24. If any element of s 10(2) is satisfied, the Court’s powers to make orders under s 9 of the Trees Act are engaged. This requires the consideration of relevant matters in s 12 of the Trees Act.

Findings

Damage due to the trees

25. T3, which caused damage to the applicant’s dwelling in 2019, was not a tree subject of the current application. With the arboricultural expertise I bring to the Court, I observed no damage to the applicant’s property that had been, or was being caused by T1 or T2, nor signs around the bases of the trunks of T1 or T2, or on the trees’ trunks and branches indicative of likely near future damage due to T1 or T2. The applicant provided no evidence of past, current, or likely near future damage due to T1 or T2. Though Ms Panganis speculated that T1 or T2 were likely to uproot and cause dwelling damage because T3 had previously done so, as there was no evidence to support this notion, a generalised inference of this nature is unreasonable. Consequently, s 10(2)(a) of the Trees Act was not satisfied.

Risk of injury

26. The Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree(/s), the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing (McPherson v Lake [2017] NSWLEC 1081; at [10]). As with assessment of damage, each tree must be considered on the basis of its structural condition, health and vitality, and site circumstances. The 2019 failure of T3’s root anchorage does not provide a reasonable basis for concluding that T1 or T2 are likely to fail similarly, and no apparent visual evidence supported such a conclusion.

27. Though the trees contained dead branches overhanging the applicant’s dwelling, they appeared to be solid and stable and likely to remain attached to the tree in the foreseeable future. Both arborists determined the risk associated with T1 and or T2 as Low. As a result of the fire in the dwelling, the dwelling was ostensibly unliveable and had not been occupied since late 2022. Consequently, I was not satisfied that T1 or T2 presented a risk of injury to a persons, thus s 10(2)(b) of the Trees Act was also not engaged.

Conclusion

28. As neither T1 nor T2 satisfied any of the three elements states of damage in s 10(2)(a), nor s 10(2)(b) regarding risk of injury to a person, s 10(2) of the Trees Act was not engaged. Therefore, the Court has no powers to make orders, thus so there is no need to consider discretionary elements under s 12 of the Trees Act.

29. In clarifying the unusual circumstances of this case, Ms Panganis acknowledged that her application was motivated by Housing’s failure to provide a timely and useful response, and because removal of T1 and T2 was required to satisfy a contract condition prior to construction of her new dwelling as the trees were within 3 m of the proposed building platform.

30. Though Ms Panganis’ application was contrary to the intent of Pt 2 of the Trees Act and was refused, the Housing representatives discussed maintenance options with Ms Panganis at the conclusion of the hearing, along with the requirement for approval from Council. In the context of a proposed dwelling extending close to the boundaries of a small land parcel in a Heritage Conservation Area in Balmain, and the findings of both arborist’s reports, the tree removal requirement of the applicant’s building contract appeared difficult to satisfy.

Orders

31. The Court orders that:

1. The application is refused.\

……………………

John Douglas

Acting Commissioner of the Court

**********

Decision last updated: 13 January 2025