Southan v Costa

[2017] NSWLEC 1230

Land and Environment Court

New South Wales

Medium Neutral Citation:	Southan v Costa [2017] NSWLEC 1230
Hearing dates:	5 May 2017
Date of orders:	05 May 2017
Decision date:	05 May 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [11]
Catchwords:	TREES [NEIGHBOURS] Potential damage to property and injury to persons; removal of dead wood ordered
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Freeman v Dillon [2012] NSWLEC 1057 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Timothy Southan (Applicant) Victor Costa (Respondent)
Representation:	Applicant: Timothy Southan (Litigant in person) Respondent: Victor Costa (Litigant in person)
File Number(s):	37976 of 2017
Publication restriction:	No

judgment

1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of all branches from an Angophora costata which overhang his property. The orders are sought on the basis that branches may fall from the tree and damage the barbecue area and garage below and or may injure anyone on his property. The applicant is also concerned about a possible fire risk arising from the tree and the nuisance of the fallout of flowers and bark.

2. The tree is growing at the rear of the respondent’s Budgewoi property.

3. In applications under Part 2, the key jurisdictional test is found in s 10(2). 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.

4. As the applicant is concerned 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/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.

5. Neither party engaged an arborist to provide independent expert evidence. The following observations are based on the arboricultural expertise I bring to the court.

6. I observed the tree to be healthy, with very good form and with no obvious structural defects. In February this year, the respondent engaged an arborist to remove some branches, including some overhanging the applicant’s property, in accordance with Wyong Council (now Central Coast Council) controls. The signs of that pruning are clear. The work appears to comply with AS4373:2007 Pruning of Amenity Trees.

7. I saw no signs of any defects in any of the attachments of the branches which overhang the applicant’s property, or anywhere else in the canopy, that would lead me to conclude that any sizeable live branches are likely, in the usual time frame, to fall onto the applicant’s property. There are some dead branches of a size and location that when they fall, as they predictably will, could cause damage to the applicant’s garage/barbecue area roof. On this basis I am satisfied that that the test in s 10(2)(a) is met and that the Court’s jurisdiction is engaged. The risk of injury seems low.

8. In regards to the fallout of flowers and other debris, Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at paragraphs [168] to [173] discusses ‘damage’ in general. In this discussion, his Honour specifically noted (at [171]) that:

171 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.

9. Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. 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.

10. 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; and so it is with this matter.

11. In respect of the fire risk associated with the debris, I note the finding in Freeman v Dillon [2012] NSWLEC 1057 in [86] which states in part:

…I am not satisfied that general bushfire risk posed by trees is within the jurisdiction of the Court under the Trees Act. A tree in itself does not start a fire…a person lights a fire, lightning strike, sparks from machinery etc may start a fire. However, if a bushfire damaged the trees and caused part or all of the tree to fail and cause damage to an applicant’s property or injury to any person, then this may engage a consideration of s 12(h)(i) and s12 (i)(i), that is “anything, other than the tree, that has contributed, or is contributing, to any such damage/ injury or likelihood of damage/ injury”. As discussed by Preston CJ in Robson at [210] this: “would also allow consideration of extraordinary natural events, acts of God, and their contribution to the damage or the likelihood of damage to property or the likelihood of injury to any person”.

12. However, as stated above, I am satisfied that some orders of the Court requiring periodic removal of dead wood are justified. Therefore, the Orders of the Court are:

1. Within 30 days of the date of these orders, the respondent is to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3 to remove all dead wood > 30mm at its base from any part of the Angophora which overhangs the applicant’s property to a distance of at least 2m inside the respondent’s property.

2. The work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover Code of Practice for the Amenity Tree Industry.

3. Should it be required, the applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and or the safe and efficient carrying out of the works in (1). The respondent is to notify his tenant of the works.

4. The works in Order (1) are to be carried out every two years, within two weeks either side of the date of the initial pruning, for the life of the tree. Orders (2) and (3) apply.

________________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 05 May 2017