Thomas v Smith

[2024] NSWLEC 1464

Land and Environment Court

New South Wales

Medium Neutral Citation:

Thomas v Smith [2024] NSWLEC 1464

Hearing dates:

19 July 2024

Date of orders:

19 July 2024

Decision date:

19 July 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted to the extent of the following orders.

(2) The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:

(a) prune Trees 1–4 to remove all deadwood greater than 40 mm in diameter over the applicant’s property; and

(b) prune Tree 2 to remove one branch over the applicant’s property as shown in the photographs in Annexure A.

(3) The works in Order (2) are to be done in accordance with AS 4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(4) The respondents are to give the applicant 2 days notice of the works in Order (2).

(5) The applicant is to allow all access required for completion of the works in Order (2) during reasonable hours of the day.

(6) The exhibits are retained.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring trees – risk of damage or injury – orders for pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, ss 6, 7, 9, 10, 12

Cases Cited:

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Australian Standard, AS 4373-2007 ‘Pruning of amenity trees’

City of Newcastle's Development Control Plan 2023

Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category:

Principal judgment

Parties:

David Thomas (Applicant)
Neil Smith (First Respondent)
Jenny Smith (Second Respondent)

Representation:

Counsel:
D Thomas (Self-represented) (Applicant)
N Smith (Self-represented and Agent) (Respondents)

File Number(s):

2024/163293

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Jenny and Neil Smith (the Smiths, or the respondents) own and live at their Elermore Vale residence. Mature trees stand in their large garden. David Thomas (the applicant) owns and lives at the adjoining property to the Smiths’ north. Mr Thomas is concerned that several trees are causing, or are likely to cause, damage to his property, or are likely to cause injury.

2. The final hearing in these proceedings took place onsite, allowing the Court to view the trees and both properties. Ms Smith was unwell on the day of the hearing. The Court granted leave for Mr Smith to represent her during the hearing. I bring my own arboricultural expertise and experience to this decision.

Mr Thomas applied to the Court

3. Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), Mr Thomas applied to the Court for orders to remedy, restrain or prevent damage to his property, or injury to any person, as a consequence of trees on adjoining land. He seeks orders for the Smiths to prune and maintain trees overhanging or posing risk to his property and to straighten the fence on their common boundary. These are orders the Court may make according to s 9 of the Trees Act. The Court is not obliged to make those orders, but may make orders “as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person” as a consequence of the subject trees (s 9(1)).

Mr Thomas made a reasonable effort to reach agreement

4. The Court must not make an order unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the respondents, and has given the required notice of the application (s 10(1) of the Trees Act).

5. Mr Thomas asked the Smiths to prune the trees as he was concerned that large branches, or even entire trees, might fall onto his property. The Smiths contacted an arborist who inspected the trees and advised them that no works were required. The arborist advised that small branches over Mr Thomas’ property could be pruned or removed to reduce risk, and provided a quote for that work. The Smiths passed the quote on to Mr Thomas. Mr Thomas told the Court that his concerns relate to larger branches than those included in the arborist’s quote. Feeling he had no other option to address his concerns, he commenced these proceedings by applying to the Court for orders. I accept that any further effort from Mr Smith was unlikely to get agreement from the Smiths for the more extensive pruning he wanted. I am satisfied that Mr Thomas made a reasonable effort to reach agreement with the Smiths (s 10(1)(a)).

6. The date set down for the final hearing allowed for the required notice of the application (s 10(1)(b)).

The trees

7. Mr Thomas’ application includes five trees. Trees 1–4 are in the Smiths’ back garden near the common boundary shared with Mr Thomas. Tree 5 is in their front garden.

8. Tree 1 is a lemon-scented gum (Corymbia citriodora) approximately 20 metres tall without any significant defects. The tree apparently looked stressed recently, but appeared healthy at the time of the hearing.

9. Tree 2 is a tallowwood (Eucalyptus microcorys) approximately 20 metres tall. It has branches extending over Mr Thomas’ property well beyond the common boundary. Some deadwood is present in its crown.

10. Tree 3 is a tallowwood (Eucalyptus microcorys) approximately 20 metres tall. Some deadwood is present in its crown. Where its stem bifurcates, bark is included in the narrow fork. This defect results in a higher level of risk than a well-form stem union.

11. Tree 4 is a spotted gum (Corymbia maculata) approximately 20 metres tall near the Smiths’ rear boundary. Its crown holds some larger deadwood but is otherwise healthy.

12. Tree 5 is a bottlebrush (Callistemon sp.) approximately 8 metres tall, in good condition with no significant defects. It leans toward, but does not overhang, Mr Thomas’ property.

13. The Court must not make an order unless it is satisfied, at s 10(2) of the Trees Act, that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant’s property, or are likely to cause injury to any person. This test must be applied individually to each tree before an order can be made for that tree.

Whether the trees have caused damage

14. Mr Thomas submits that roots of Tree 2 have displaced the fence on the common boundary. The tree is less than 2 metres from the fence, and its large surface roots can be seen near the fence.

15. Mr Smith, who has lived here for over 40 years, submits that the fence was displaced once before but was easily straightened by an earlier owner of Mr Thomas’ property.

16. The fence is only slightly out of alignment. Its function as a dividing fence is not affected, and appears unlikely to be affected in the near future. This element of the application does not warrant any orders from the Court.

17. Mr Thomas submits that roots of Tree 2 have damaged a concrete slab that is adjacent to the common boundary in his back yard. He pointed out a section along the slab’s edge nearest the boundary that is cracked and lifted. He submitted that his dog’s kennel used to be on this slab but was moved because Mr Thomas was concerned a branch might fall onto the kennel. At the time of the hearing, two plastic water tanks were on the slab. Without any investigative excavation, the cause of this damage was not clear, although I accept that roots from Tree 2 are likely to be a contributing factor. The slab’s function appeared unaffected by its lifted edge, so that this element of the application does not warrant any orders from the Court.

18. Mr Thomas submits that the build-up of leaves behind his shed has led to water flooding into the shed. However, the Court was given no evidence of damage resulting from this. I cannot be satisfied that the tree has caused damage that results in flooding to the shed.

19. Mr Thomas submits that leaves, twigs and small branches fall from Trees 1–4 into his back yard, however this does not appear to have caused any damage to his property.

Whether the trees are likely to cause damage in the near future

20. Mr Thomas submits that branches of Trees 1–4 are likely to fall onto his property, where they would damage his shed, or his dog kennel, or the boundary fence. I inspected all trees from the back yards of both properties. The only live branch that appears likely to fail in the near future is a low branch of Tree 2 that is overextended. As per the principle established in Yang v Scerri [2007] NSWLEC 592, I consider a period of the next 12 months represents ‘the near future’ at s 10(2)(a) of the Trees Act. The branch would damage Mr Thomas’ shed if it fell. The risk could be mitigated by removing the branch.

21. Dead branches above Mr Thomas’ property could damage his shed if they fall, and I expect such branches will fall within the next 12 months. The risk of damage could be mitigated by removing dead branches over Mr Thomas’ property from Trees 1–4.

22. The narrow stem union of Tree 3 is a significant defect, but I am not sure that it is likely to fail in the next 12 months. However, if the union failed, it is the smaller of the two stems that is likely to fall, leaving the larger stem intact. The smaller stem would fall into the low-use area of the Smiths’ own garden, and would not damage Mr Thomas’ property.

23. I observed no other elements of Trees 1–4 that are likely to cause damage to Mr Thomas’ property in the near future.

24. Mr Thomas submits that Tree 5 might fall and damage his caravan. The bottlebrush in the Smiths’ front yard leans toward Mr Thomas driveway, where he parks his caravan. If the tree fell, its top might hit the caravan. However, I inspected the tree during the onsite hearing and found no defects or features that suggest the tree’s failure is likely in the near future. No orders will be made on this element of the application.

Whether the trees are likely to cause injury

25. Above, I found that the tree parts that are likely to cause damage in the near future are limited to dead branches of Trees 1–4 over Mr Thomas’ property and an overextended branch of Tree 2. These are also the only parts that are likely to cause injury to people in his garden. Pruning to mitigate the risk of damage will also mitigate the risk of injury.

26. Trees 1–4 also hold dead branches over the Smiths’ own garden. Mr Smith submits that he picks up fallen branches before mowing, but does not see any significant risk of damage or injury from those branches. Should the Smiths wish to remove deadwood over their own property, that is a matter for them when they engage an arborist to carry out the pruning ordered below.

Relevant matters

27. Other matters that the Court is to consider before making orders are set out at s 12 of the Trees Act. Here I consider those that are relevant to these proceedings.

28. Trees 1–4 are close to the boundary and, to varying extents, overhang Mr Thomas’ property. Tree 5 is further from the boundary. The trees are not close to Mr Thomas’ dwelling, nor do they overhang it.

29. Removing the trees would require council consent from the City of Newcastle. According to the City of Newcastle's Development Control Plan 2023, pruning a tree within the guidelines of AS 4373-2007 ‘Pruning of amenity trees’ without removing a substantial part of the tree would not require council consent.

30. The trees provide ecosystem services including shading and cooling. They provide habitat for birds and other animals.

31. Pruning to mitigate the risks identified above would not adversely affect the trees.

32. The risks identified above result from the natural growth of trees in the urban environment. They have not resulted from the actions of the Smiths or Mr Thomas.

Conclusions

33. Although Mr Thomas perceives that all five trees pose a significant risk, I find that only dead branches of Trees 1–4 that overhang his property, and one live branch of Tree 2, are likely to cause damage to his property in the near future, or are likely to cause injury. The risk of damage can be mitigated by pruning. The Smiths are not required to gain council consent to carry out the pruning works (s 6(3) of the Trees Act).

Orders

34. The Court orders:

1. The application is granted to the extent of the following orders.

2. The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to carry out the following works within 60 days of the date of these orders:

1. prune Trees 1–4 to remove all deadwood greater than 40 mm in diameter over the applicant’s property; and

2. prune Tree 2 to remove one branch over the applicant’s property as shown in the photographs in Annexure A.

3. The works in Order (2) are to be done in accordance with AS 4373-2007 ‘Pruning of amenity trees’ and the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

4. The respondents are to give the applicant 2 days notice of the works in Order (2).

5. The applicant is to allow all access required for completion of the works in Order (2) during reasonable hours of the day.

6. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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Annexure A

Decision last updated: 31 July 2024