Woodhead v Higgins

[2020] NSWLEC 1520

Land and Environment Court

New South Wales

Medium Neutral Citation:

Woodhead v Higgins [2020] NSWLEC 1520

Hearing dates:

6 October 2020

Date of orders:

6 October 2020

Decision date:

06 October 2020

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – apprehension of damage and injury

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Uniform Civil Procedure Rules 2005

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Dooley v Newell [2007] NSWLEC 715

Immarrata v Mourikis [2007] NSWLEC 601

McPherson v Lake [2017] NSWLEC 1081

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

Texts Cited:

AS4373-2007 Pruning of Amenity Trees

Category:

Principal judgment

Parties:

Gary Woodhead (Applicant)
Nicole Higgins (First Respondent)
Robert Higgins (Second Respondent)

Representation:

G Woodhead (Litigant in person) (Applicant)
N Higgins (Litigant in person) (First Respondent)
R Higgins (Litigant in person) (Second Respondent)

File Number(s):

2020/192960

Publication restriction:

No

Judgment

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

1. COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Mr Woodhead, relating to a Eucalyptus saligna X botryoides (the tree) located in the adjacent neighbouring property.

Background

2. Mr Woodhead (the applicant) and Mr and Mrs Higgins (the respondents), share a side boundary between their properties in Milton. The applicant’s property is located on the northern side of the respondents’, and both properties face west towards the same street.

3. Mr and Mrs Higgins purchased and occupied their property about seven years ago, at which point the tree was already well established in their rear yard. It is located about one metre from the common boundary, which runs east – west, and is delineated by a fence, about 1.8 metres tall.

The onsite hearing

4. Both parties attended the hearing, and the tree was initially inspected in the respondents’ property.

5. The tree is mature. It stands approximately 13 metres tall, with a canopy spread of about ten metres. Its canopy is largely symmetrical, with some branches extending beyond the common boundary by about four metres, and they are growing above parts of Mr Woodhead’s building apron and rear yard. This building has been in situ as a garage, for the seven years that the respondents have occupied their dwelling, but in August 2019 the applicant gained development consent for its conversion to a secondary dwelling, including a deck extension.

6. Upon inspecting the site from the applicant’s property, Mr Woodhead highlighted branches overhanging the boundary, areas where leaves and other refuse was blocking gutters and causing mess, and extensive bird droppings on his deck.

The applicant’s case

7. Mr Woodhead proposes orders for tree removal because of the overhang, which he views as a risk of damage to property, and injury to persons, and because of the extra work required to clean up leaves and other refuse.

8. He submits that, in the alternative, all the overhanging branches should be pruned back, at least to the boundary, but suggests that this would be an inadequate solution, because the tree would continue to grow larger, it may be more prone to fall over due to its unbalanced canopy, and his problem of overhanging branches would recur within a few years.

The respondents’ case

9. Mr and Mrs Higgins seek that the tree be retained, as they had received advice that the tree “was young and healthy and did not need removal for safety reasons”. They believe that Mr Woodhead has the right to prune the branches back to the boundary line dividing the properties, though, based on the case file, this appears to be informed by a Western Australian Citizens Advice Bureau Fact Sheet which may not be applicable to NSW. Though such rights may exist, such pruning would normally require Council permission, in response to an application from the tree owner.

Jurisdictional requirements

10. 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.

11. The Court is obliged to consider a number of matters pursuant to s 10 of the Act.

12. As required by s 10(1)(a), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated. Mr Woodhead provided evidence of requests for pruning of the tree, and ongoing written and verbal negotiations with the respondents.

13. The next major test that is posed, by s 10(2) of the Act, 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.

Dropping debris

14. Mr Woodhead’s damage claim relates to dropping of leaves, flowers, bark and sticks into gutters and drains, and onto his deck and rear yard. He repeatedly stressed that the tree branches should not encroach over his property, and expressed annoyance and exasperation that the owners retain the aesthetic and environmental benefits of having their tree, whilst he is left to clean up the mess so created by it.

15. Notwithstanding this view, there is no restriction, or remedy available under the Trees Act, for trees overhanging neighbouring properties, if the tree is not also causing damage as defined in the Act.

16. This issue is addressed at [171] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), where Preston CJ says:

“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.”

17. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292, which, at [20], 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, 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.”

18. Therefore, this dropping refuse associated with the tree is considered to be minor, it is not classed as damage under the Act, and the required maintenance to clear leaves, seeds, flowers and small sticks from around the house, driveway, and gutters is considered to be reasonable. This element is thus dismissed and set aside.

19. With respect to the bird droppings element of the claim, the Court has decided that the damage, or risk of injury must be caused by the tree itself, not by an animal living in, or, on the tree. Therefore, the Court has no jurisdiction to deal with applications concerning trees harbouring or attracting such animals.

20. This is explained at [189] of Robson, where his Honour says:

“Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant’s property: Dooley v Newell [2007] NSWLEC 715 (23 October 2007) (Moore C, Thyer AC) at [22]-[23].”

21. Thus, there can be no successful claim under the Act related to bird droppings.

Risk of Injury

22. Mr Woodhead claims that the tree presents a genuine risk of injury, from overhanging branches breaking and striking people.

23. In regards to injury, the Court must consider 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 (McPherson) at [10]).

24. Mr Woodhead provided a brief Arborist Recommendation from Matthew Dihm, who claims to be an AQF 5 qualified arborist. Mr Dihm found that the tree is suffering from decay in many co-dominant junctions, that it has collar rot, that there has been leaf and limb drop, and he has deemed the tree unsafe, and recommended removal.

25. Mr and Mrs Higgins also provided an Arborist Report from Maree Ellis, also an AQF 5 qualified arborist, which noted that the tree is in good condition. The report describes sound, non-included branch junctions, active occlusion of old pruning wounds, minor deadwood, and a Medium Useful Life Expectancy (ULE), which is defined as a range of “15 – 40 years with an acceptable level of risk”.

26. Neither experts’ report satisfied the Court’s requirements, and thus cannot be relied upon, as they were not provided in accordance with the Expert Witness Code of Conduct, contained in Schedule 7 of the Uniform Civil Procedure Rules 2005.

27. Notwithstanding this, based on the arboricultural expertise which I bring to the Court, I would generally agree with Ms Ellis’ findings, and disagree with those of Mr Dihm.

28. The tree appears to be healthy and very stable in the ground. There are no signs around the tree base, such as soil heaving and lifting, or cracks in the soil, which an arborist may interpret as indicative of stability issues.

29. The trunk base shows no indications of collar rot, and branch attachments appear strong and stable. Some wounds are present on trunks, and branches, likely resulting from normal borer activity, but the tree has responded with kino and callus growth using normal protective processes for a healthy tree. No fungal decay was obvious on the tree. There are a few dead branches internal to the canopy, but, should they break, these would likely become hung up within the canopy, and they do not extend over the applicant’s land.

30. While attitudes vary with respect to tree risk, none of the applicant’s fears and concerns can lead to a finding of risk of injury under the Act, without sound and appropriate evidence to support them. There are no obvious signs on the trunk, or on the branch scaffold, of previous failures of overhanging branches, nor reported near misses. No formal risk assessment has been provided to support Mr Woodhead’s claim.

31. Returning to the guidance provided in McPherson with respect to injury, the risk posed by this tree, based on its characteristics, any history of previous failures, and the circumstances of the site apparent at the time of the hearing can only be viewed as low.

32. Overall, there is a complete absence of evidence to support a finding that the risk of injury is probable or likely, and thus Mr Woodhead’s claim under the Act with respect to injury is also dismissed.

33. Therefore, with s 10 not satisfied, with respect to damage or injury, I have no jurisdiction under s 7 of Pt 2 of the Act, to make any orders for intervention with the tree.

34. As this application is thus set aside, there is no requirement to consider the discretionary matters in s 12. Even if I am wrong with my findings, however, the environmental benefits provided by the tree would be considered before a decision to intervene with the tree, and thus deserve attention.

Discretionary matters – s 12

35. In making an order, the Court considers relevant matters in s 12 of the Act.

• The tree is located in the respondents’ property about one metre from the common side boundary (subs 12(a)).

• With respect to removal or pruning, the tree is protected by Council’s Tree Preservation Order (subs 12(b)).

• With respect to subs 12(b2), past pruning of the tree has been minimal and this is appropriate in terms of optimum tree health. Any removal of leaf cover by pruning, or any other means, reduces a tree’s capacity to optimise photosynthesis. This reduces the tree’s potential carbohydrate supply, which is necessary for a range of essential functions. Pruning should therefore not occur as part of ‘normal’ maintenance, but should be undertaken only when necessary to achieve a required purpose. No pruning is required in this case, though the parties may wish to have some lower branches removed back to branch collars, subject to Council permission, and in compliance with AS4373-2007, Pruning of amenity trees.

• The tree contributes significantly to protection from the sun, to landscaping, and to the amenity and scenic value of Mr and Mrs Higgins’ land (subss 12(b3), (e)).

• Because of its flowering and fruiting characteristics, the tree could be expected to provide food and or shelter for local fauna, and thus would contribute to local biodiversity (subs 12(d)).

• The tree is likely to be providing benefit to soil stability, and to reducing localised water accumulation (subs 12(g)).

Conclusion

36. I have examined the tree and the site and have reached the following conclusions:

1. The onus is on the applicant to prove his case by submitting evidence, which satisfies the Act. No valid evidence of previous or current damage to the applicant’s property has been provided, to the satisfaction of the Act, nor am I satisfied that damage in the near future is likely.

2. Based on my inspection, there are no obvious characteristics related to the tree or the site, nor any evidence of actual injury or likely injury provided by the applicant, that supports a finding of risk of injury. The level of risk from the tree is considered low, and acceptable.

3. Even if any, or all of the evidence provided was deemed to constitute previous, current, or (near) future damage, or risk of injury, s 12 of the Act stipulates a requirement to measure this against the environmental services and benefits provided by the tree.

4. The requirements of s 7 of Act, have therefore not been satisfied, and no orders for intervention with the tree can be made by the Court.

Orders

37. The Court orders that:

1. The application is dismissed.

………………………….

J Douglas

Acting Commissioner of the Court

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Decision last updated: 30 October 2020