Scotton v Crescent Head Resort Pty Ltd

[2024] NSWLEC 1576

Land and Environment Court

New South Wales

Medium Neutral Citation:

Scotton v Crescent Head Resort Pty Ltd [2024] NSWLEC 1576

Hearing dates:

28 August 2024

Date of orders:

19 September 2024

Decision date:

19 September 2024

Jurisdiction:

Class 2

Before:

Nichols AC

Decision:

The Orders of the Court are:

(1) The application is granted in part.

(2) Within 120 days of the date of this judgment, the respondent is to engage and pay for an AQF level 3 arborist to inspect Tree 4. Any dead and declining fronds are to be removed in accordance with the relevant provisions of AS4373: 2007 - Pruning of Amenity Trees.

(3) The work in Order (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) Commencing six months after the first inspection and frond removal, the work in Order (2) is to be undertaken every six months for the life of the palm.

(5) Should it be required, the applicant is to provide all necessary access for the safe and efficient carrying out of the work in Orders (2) and (4) on reasonable notice.

(6) The application to remove the trees is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Injury from falling palm fronds – potential damage – leaves and debris in gutters – orders made

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:

Barker v Kryiakides [2007] NSWLEC 292
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152
Yang v Scerri [2007] NSWLEC 592
Zangari v Miller (No 2) [2010] NSWLEC 1093

Texts Cited:

Standards Australia, AS4373: 2007 - Pruning of Amenity Trees

WorkCover NSW, Code of Practice - Amenity Tree Industry

Category:

Principal judgment

Parties:

Kenneth Scotton (Applicant)
Crescent Head Resort Pty Ltd (Respondent)

Representation:

K Scotton (Self-represented) (Applicant)
J O’Dwyer (Agent) (Respondent)

File Number(s):

2024/195266

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: The applicant contends that over recent years and in particular since December 2023, three Queen Palms and four Cocos Palms growing on the respondent's property near the boundary have been shedding palm fronds and seed pods onto the applicant’s property. The applicant submitted evidence of one palm frond that had fallen and damaged a parked caravan. The applicant is concerned that unless the palms are removed there is a risk of further damage particularly to the area identified as the space for caravan storage located directly below the Tree 4, and that roots may damage a gravelled area.

2. Apart from the applicant's concerns about the ongoing risk of damage to property, the applicant is also concerned that the palm fronds may cause injury to people on the applicant’s property.

3. The application is made pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

4. The respondent maintains that the trees are healthy, added a positive contribution to the amenity of the property and does not wish to remove them. The respondent’s property is currently undergoing renovation (including landscaping) and there is potential for the palms to be removed in a staged approach in the future.

5. For background, the applicant's property is a free-standing dwelling house. The applicant’s property also contains a studio-flat style accommodation at the rear of the property near the rear boundary, close to several of the palm trees.

6. In applications under Pt 2 of the Act, the key jurisdictional tests are found in s 10(2). This section 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. These tests must be applied to each tree about which an application is made.

7. If any of the tests are met, the Court's power under s 9 of the Act to make any orders it thinks fit is engaged.

8. As neither party engaged an arborist to provide independent expert evidence, these observations are based on the arboricultural expertise I bring to the Court.

9. Dealing with trees in the ordered number, due to recent maintenance I observed the roof and gutters near Trees 1, 2, and 3 to be almost free of any debris. However, due to the proximity of trees to the building, it is likely that seed debris is likely to occasionally fall in this vicinity. No evidence has been adduced to satisfy any of the tests in s 10(2) and therefore no orders can be made in relation to these trees.

10. Concerning Trees 5, 6 and 7, the applicant provided photographic evidence of palm fronds that had fallen off these trees, however no evidence of damage was provided arising from the dropping of palm fronds or seeds. These trees are growing in the north-western corner of the respondent's property, near the applicant’s driveway. In my view, in relation to Trees 5, 6 and 7 no evidence has been adduced to satisfy any of the tests in s 10(2) and therefore no orders can be made in relation to these trees.

11. However, if I am wrong in these findings at [9] - [10], as a matter of discretion the discussion and observations on site did not indicate any exceptional circumstances that would lead the Court to deviate from the Tree Dispute Principle published in Barker v Kryiakides [2007] NSWLEC 292 which states at [20] 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.”

12. Turning to Tree 4, this is planted close to the fence that divide the applicant's property with the respondent's property. The canopy of Tree 4 projects slightly over the area used by the applicant as a caravan storage area.

13. The applicant was able to provide evidence by way of photographs of previous damage to a caravan arising from the dropping of a palm frond from Tree 4, a Queen Palm. The applicant is seeking orders to remove Tree 4 but is not seeking any orders in relation to costs for this damage, merely to prevent further damage from falling fronds. The photographs and the oral evidence indicate that the large majority of fronds that have fallen have been dead or dying.

14. The shedding and falling of dead palm fronds are normal processes; old fronds are phased out and eventually shed as new fronds are produced. In my experience, it is uncommon for healthy fronds to be shed without warning. Generally, the frond gradually dies and browns; as it dries it becomes more brittle and collapses and hangs from the stem; eventually the frond falls to the ground. Therefore, there is generally advanced warning of the dropping of a frond.

15. In relation to the alleged potential for the roots of the palms to cause damage to the gravelled area, the applicant was unable to produce any evidence of significant root incursion causing damage, or any other proof that damage was imminent, or there is a "real, appreciable probability" of irreparable damage (see Robson v Leischke  (2008) 159 LGERA 280; [2008] NSWLEC 152 at [200]). The Court has published a guidance decision in Yang v Scerri[2007] NSWLEC 592 and determined that the 'near future' is a period of 12 months from the date of the hearing.

16. Given the location and height of Tree 4, and its proximity to the applicant’s yard and caravan storage area, and the uncontested evidence of frond failure, I am satisfied to the extent required by s 10(2) that falling fronds could cause injury to any person on the applicant’s property and could do damage to the applicant's property.

17. Therefore, as the Court's jurisdiction to make orders is engaged, before determining what, if any, orders should be made, consideration of any relevant matters in s 12 of the Act is required.

18. Given the constrained and limited areas of private open space in the applicant’s yard, I consider some orders are appropriate.

19. I agree with the respondent that the trees are healthy and provide visual amenity for the occupants of the respondent's property. They also contribute to the immediate landscape and break up the built form of the residential buildings located on the respondent’s property. The lower palm fronds of all trees had been pruned in March 2024, and at the time of inspection (August), there were no dead fronds or other plant parts that required pruning immediately.

20. While the applicant seeks the removal of the palms, I consider this to be an extreme measure and not warranted at this stage. Orders will be made for the regular inspection of the Tree 4 and any necessary removal of dead and dying fronds and seed pods.

21. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, the applicant can make a fresh application if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & Anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.

22. Similarly, should the respondent's position change, the respondent may apply to the Court to vary the Orders.

23. Therefore, the Orders of the Court are:

1. (1) The application is granted in part.

2. (2) Within 120 days of the date of this judgment, the respondent is to engage and pay for an AQF level 3 arborist to inspect Tree 4. Any dead and declining fronds are to be removed in accordance with the relevant provisions of AS4373: 2007 - Pruning of Amenity Trees.

3. (3) The work in Order (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

4. (4) Commencing six months after the first inspection and frond removal, the work in Order (2) is to be undertaken every six months for the life of the palm.

5. (5) Should it be required, the applicant is to provide all necessary access for the safe and efficient carrying out of the work in Orders (2) and (4) on reasonable notice.

6. (6) The application to remove the trees is dismissed.

P Nichols

Acting Commissioner of the Court

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Decision last updated: 19 September 2024