Zhang v Mercer

[2020] NSWLEC 1415

Land and Environment Court

New South Wales

Medium Neutral Citation:

Zhang v Mercer [2020] NSWLEC 1415

Hearing dates:

11 August 2020

Date of orders:

11 August 2020

Decision date:

11 August 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 Procedures Rules 2005

Cases Cited:

Awad v Hardie (No 2) [2010] NSWLEC 1258

Barker v Kyriakides [2007] NSWLEC 292

Black v Johnson (No 2) [2007] NSWLEC 513

Dooley v Newell [2007] NSWLEC 715

Immarrata v Mourikis [2007] NSWLEC 601

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

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

AS4373-2007 Pruning of Amenity Trees

Category:

Principal judgment

Parties:

Hong Zhang (Applicant)
Lynette Mercer (Respondent)

Representation:

H Zhang (Litigant in person) (Applicant)
L Mercer (Litigant in person) (Respondent)

File Number(s):

2020/133918

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 Ms Zhang, relating to a Corymbia citriodora (Lemon Scented Gum) (the tree) located in the adjacent neighbouring property.

Background

2. Ms Zhang (the applicant) and Ms Mercer (the respondent), share a side boundary between their properties in Blacktown. The applicant’s property is located on the western side of the respondent’s, and both properties face south towards the same street.

3. Ms Mercer and her late husband, purchased and occupied their property 38 years ago, at which point the tree (T1), and a second Lemon Scented Gum (T2), were already well established in the front yard. T1 is located about one metre from the boundary shared with Ms Zhang, while T2 is close to the middle of the front yard. A third smooth-bark gum tree (T3), of indeterminate species, was, to the best of Ms Mercer’s recollection, self-sown many years later in the front yard of her eastern side neighbour, close to both the adjoining, and front boundaries. A photograph (photo), supplied by Ms Zhang, displays the three trees, with T3 positioned in close proximity to a path, apparently constructed from rough-hewn sandstone paving and mortar. T3 was reported to have been uprooted during a storm on 8 January 2018, and Ms Zhang supplied photos which display the residual trunk and roots from this tree.

The onsite hearing

4. Being open to the street, both properties were accessible for simultaneous inspection. Both parties attended the hearing, and Ms Zhang was joined by a supportive friend who, appropriately, did not offer comment or opinion.

5. The common boundary is delineated by a garden bed, about 0.6 metres wide, on the respondent’s side. This garden abuts Ms Zhang’s driveway, which is two to three metres wide, is located parallel to the boundary, and terminates under a carport, which adjoins the eastern side of her house.

6. T1 and T2 are mature. They stand approximately 15 metres tall, and each have a canopy spread of about eleven metres. While the trunk of T2 is straight, and its canopy is largely symmetrical, the trunk of T1 leans towards Ms Zhang’s property, likely due to phototropism, at an angle of about 10 degrees from vertical. Some branches of T1 extend beyond the common boundary by about seven metres, and they are growing above parts of Ms Zhang’s driveway and front lawn.

The applicant’s case

7. Ms Zhang submits that the branches overhanging the boundary represent nuisance, because she regards these branches as a trespass to her land. She adds that anything that comes over the common boundary is encroachment, and that this case represents significant encroachment to her land.

8. Ms Zhang claims that she “suffers actual damage and interference of daily life as a result of problems caused by the tree”, that the respondent and other neighbours gain aesthetic and environmental benefit from T1, but that this is achieved at considerable expense to her.

9. Ms Zhang, who has owned her home for about 11 years, seek orders which:

1. require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property,

2. require the taking of specified action to prevent injury to any person,

3. require the payment of costs associated with carrying out an order under this section.

10. The applicant proposes that, in the first instance, overhanging branches are pruned to the extent that the tree does not cause injuries or death to people, and damage to property, in a manner that does not compromise the health of the tree. She seeks that such pruning be based on expert advice, with an aim to:

1. establish a specified minimum clearance from her property, and

2. reduce the weight and/or height of the broadly spreading canopy mass by a specified percentage.

11. Ms Zhang also proposes that the tree is pruned, inspected and monitored on a regular basis, according to industry standards, and suggests ‘pruning every ‘X’ months’, or under Blacktown City Council’s (Council’s) Tree Preservation Order (TPO), as an example specification that she requests be ordered by the Court. Once again she notes, that the extent of such pruning should minimise the risk to persons or property, whilst not detrimentally impacting on the tree’s structure and condition.

12. Additionally, Ms Zhang proposes that this pruning is limited to branches on her side of the tree, in order to “retain balance and stability”, and, should the circumstances surrounding T1 change, that she may lodge a new application to the Court.

The respondent’s case

13. Ms Mercer seeks that T1 be retained, and resists the applicant’s claim for heavy and/or regular pruning of T1.

14. Should pruning be ordered or required, Ms Mercer requests sufficient time to organise this, respite from urgent pressure from Ms Zhang, and that any required pruning be subject to permission from Blacktown City Council (Council). She also rebukes the personal attacks by Ms Zhang in her application, and requests that they be withdrawn.

15. Ms Mercer notes the many environmental services that she and the neighbouring community gain from her two trees, and enjoys the birds, and other animals that visit the tree for food or habitat. She notes making effort during the recent drought to supply the tree with grey household water, and expresses relief that her efforts, as the “custodian and protector of the trees” were successful. She notes a strong belief that the benefits provided by the trees, particularly for wildlife, far exceeds any inconvenience of leaves, blossom or bark, falling from them.

Jurisdictional requirements

16. 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.

17. Ms Zhang’s submitted that the ownership of the tree is debatable, because a significant proportion of its branches and leaves overhang her land.

18. As per s 4(3), for the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land. Regardless of overhang, any issue of ambiguity as to whether the tree is “wholly or principally” on the respondent’s land is determined through a survey of the location of the base of the tree with respect to the boundary (see Awad v Hardie (No 2) [2010] NSWLEC 1258). There is no such ambiguity with T1, thus it is located “wholly or principally” on the respondent’s land, for the purposes of the Act.

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

20. 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. Ms Zhang provided evidence of requests for pruning of T1, and ongoing written and verbal negotiations with the respondent, notwithstanding that the relationship has become acrimonious.

21. As is not uncommon with disputes over trees, the relationship between the parties has deteriorated significantly over recent years. It appears that the uprooting and toppling of T3 in 2018, which caused damage to Ms Mercer’s house, has heightened Ms Zhang’s fears about T1. She noted that this vindicated her prediction that all three trees were dangerous, and increased the intensity of her efforts towards extensive pruning of T1, so as to satisfy and appease these fears.

22. Ms Zhang believes that T1 should be regularly pruned as part of normal maintenance and tidying, while Ms Mercer believes that such regular pruning is neither required, nor appropriate. Unsurprisingly, where parties have such polarised views about tree management, and subsequent to the toppling of T3 in 2018, the interaction between the parties became more personal and bitter, and the tree related issues appear to have become secondary and subject to misunderstandings.

23. A specific misunderstanding relates to the allowance under the terms of the Council’s TPO, to prune branches which are less than 100 mm diameter, and, which comprise less than 10% of the canopy, up to once every growing season, without needing Council consent.

24. Ms Zhang appears to have misinterpreted this aspect of Council’s TPO as a requirement, rather than something that a tree owner may choose to do, without the need to gain Council permission to do so.

25. The applicant, quoting from Council’s website, notes

“We will allow up to 10% of a trees canopy to be removed without consent provided that:

• you inform the owner of the tree before carrying out the pruning

• you do not unnecessarily damage the tree in the process

• you do not enter onto your neighbour’s property without their consent.”

26. In response to a request to Ms Mercer for pruning, Ms Zhang notes that “nonetheless, the respondent refused the applicant in April, 2018, to prune a certain amount of the tree canopy as stipulated by the above orders”.

27. The TPO only provides permission to act, it does not provide an order or stipulation to do so.

28. In accordance with the TPO, the respondent is thus reasonably entitled not to grant consent for such pruning, and it is only if the requirements of s 10(2) of the Act are met, that the Court may have jurisdiction to order intervention with the tree.

29. 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.

30. In her application, with respect to damage, Ms Zhang claimed:

1. That T1 causes blockage of her gutters of the property and carport by leaves, and eucalyptus oil.

2. That rainwater flows down from the front door roof, and flows along the front timber door, causing erosion of the door.

3. That her car roof is damaged by bird droppings, stamens or pistils of the tree.

4. That photographs attached for my perusal, display serious damage.

31. Claim (1) and dropping stamens or pistils of the tree of claim (3) will be considered below, from [50].

32. With respect to claim (2), Ms Zhang provided no copies of paid invoices, or other evidence to support this claim, nor did she mention this damage at the hearing, or make any attempt to show me this damage.

33. With respect to the bird droppings element of claim (3), 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.

34. This is explained at [189] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), where Preston CJ 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].”

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

36. Ms Zhang also provided photos showing honey dew (which is excreted by insects which suck sap from leaves), and associated sooty mould, on the roof of her car and she noted that “the severity of sticky residue on the car roof is most burdensome and unacceptable”. Based on the same rationale used for the bird droppings, because this ‘honey dew’ and black ‘sooty mould’ falling onto the roof of the car, results from insects feeding on the leaves of the tree, not from the tree itself, such residue does not constitute damage under the Act.

37. In relation to claim (4), regarding photos that show serious damage, Ms Zhang’s Exhibit 3 displays a branch, about three metres long and about 40 mm at the point of breakage, which fell from the tree on 14 April 2018. Her caption on the photo notes that the SES attended, and I understand that this branch fell onto her electricity service wire.

38. Notwithstanding the alarm that this event apparently caused, there was no submission, nor evidence provided that the wire was damaged, that her electricity supply was affected, nor that there was any cost required for removal, given that it was handled by the SES. Thus, this event does not constitute damage under the Act.

39. Ms Zhang also notes lawn damage, in terms of refuse falling from the tree, and patchy growth. Again there is no evidence, nor paid invoices provided, which may allow the Court to consider this as damage. Other causes may be soil erosion related to the slope of the land, insufficient water and perhaps fertiliser, and possible compaction. She also claims inhibition of lawn growth from overshading by the tree, but the front lawn has a southerly aspect, and during the late spring, summer, and early autumn growing season, it would likely be exposed to the sun throughout most of the afternoon, and, on the western side of the front yard, throughout the day after mid-morning. Ms Zhang adds that it is unfair that she has to earn more to pay for maintenance, but none of these aforementioned issues constitute damage under the Act.

40. The applicant claims that in the next 12 months, there will be big storms, and that, though there has been no damage yet, she wants to prevent damage. There may possibly be big storms, but Ms Zhang has provided no evidence, to convince the Court that this is likely, or that damage will result.

41. It appears that much of the zeal displayed by Ms Zhang in her quest for intervention with T1, relates to her belief that it is illegal and unreasonable for the tree’s branches to encroach over her property, plus her sense of vindication of her prediction when T3 was uprooted in January 2018. Ms Mercer notes in her written submission that the parties relationship deteriorated drastically after T3’s collapse.

Dropping debris

42. Ms Zhang’s claim (1), and an aspect of claim (3), relate to dropping of leaves, flowers, bark and small sticks into her gutters, and onto her driveway and lawn. She repeatedly stresses that the tree branches should not encroach over her property.

43. Ms Zhang is perhaps justifying her interpretation of this situation with reference to common law which applied prior to the enactment of the Act.

44. At [35]-[40] of Robson, Preston CJ provides context for differentiation between these two regimes. In common law, encroachment is normally covered under the tort of nuisance, and at [54]-[58] of Robson, his Honour explains the different “Kinds of private nuisances”.

45. At [169]-[171] of Robson, his Honour notes,

“169 At common law, although damage is necessary to complete the cause of action in nuisance, the type of damage required varies depending on the kind of nuisance involved. For nuisances of the first kind, causing encroachment as by roots and branches of trees, actual damage to the land (including property attached to or inherent in the ground) must be proved: see paragraph 56 above. For nuisances of the second kind, causing physical damage, actual physical damage to land (including property attached to or inherent in the ground) is also required: see paragraph 67 above. For nuisances of the third kind, causing unreasonable interference with the use and enjoyment of the neighbour’s land, however, no actual financial loss or injury to health need be involved. The damage consists of the annoyance and discomfort caused to the occupier of the neighbouring land, such interference being of a material character: Clerk & Lindsell on Torts,19th ed, Sweet & Maxwell, London, 2006, [20-27], p 1178.

170 The types of actual damage required at common law for nuisances of the first and second kind would also constitute “damage to property on land” within s 7 of the Trees (Disputes Between Neighbours) Act 2006, with the possible exception noted earlier (at paragraph 166) that damage to the surface layer of the land may not be damage to property on land.

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.”

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

47. Ms Zhang quoted this Tree Dispute Principle in supplementary information submitted with her application, and claimed that it does not apply here, because “nevertheless, the situation in this claim is extra-ordinary considering that the debris drops from the whole gum tree.”

48. To substantiate this claim, she notes,

“Should the respondent’s practice be justified, everyone can plant a tree in such a way where the owner gets benefits from the tree, where less than 5-10% (of the) foliage and branches drop on his/ her side, so that works concerning maintenance and discomfort are left to the other side of the owner or occupants.”

49. She claims that over 95% of debris and leaf litter of T1 falls or blows onto her property. Ms Zhang’s claims the special circumstances of this case, which renders the Tree Dispute Principle in Barker non-applicable, are that “the owner appreciates and retains nearly all the aesthetic and environmental benefits of having her trees, whilst the affected neighbour needs to clean nearly all the surrounds of the house.”

49. She adds that “Even so, the owner allows (only) ‘slight pruning’.” And that “should the act of such an owner (be) justified, any owner can let his/her tree encroach to the other side (of) the boundary line.”

50. Notwithstanding that it is about 65%, rather than 95% of the tree’s canopy, which overhangs Ms Zhang’s land, this is indeed the case, if the tree is not also causing damage as defined in the Act.

51. Based on the photographic evidence supplied by the applicant, and my inspection on site, this case is not extra-ordinary, and the Tree Dispute Principle in Barker does apply here. This damage is considered minor, and the required maintenance to clear leaves, seeds, flowers and small sticks from around her house, driveway, and gutters is reasonable.

52. Therefore Ms Zhang’s claims with respect to damage, of all the types she has mentioned, do not constitute damage under the Act, and this aspect of her application is dismissed.

Risk of Injury

54. Ms Zhang claims that T1 presents a genuine risk of injury. She notes that while it looks healthy, it is “too close if it fails”, that it looks risky to her, and that she is scared of it, particularly during big winds. None of these fears and concerns can lead to a finding of risk of injury under the Act, without sound and appropriate evidence to support them. Ms Zhang’s concern about the driveway being slippery and dangerous as a result of fallen gumnuts and leaves, is addressed via the Tree Dispute Principle in Barker.

55. Using the guidance decision published in Yang v Scerri [2007] NSWLEC 592 (Yang) with respect to injury, the Court considers the risk posed by a tree based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

56. It is neither reasonable, nor logical, to conclude that T1, nor T2, are prone to catastrophic failure by uprooting, simply because T3 failed in this manner. While I cannot make conclusive findings, given that T3 is now absent, the photo of T3’s residual upturned stump indicates areas of past physical root damage, which may well have been associated with the construction of the sandstone path in close proximity to its trunk base (photo of T1-T3 supplied by Ms Zhang). Given its location, T3 may also have had insufficient soil volume to develop a root system which was sufficiently adequate for anchorage in the surrounding soil. No such limitations or nearby root disturbance are evident around T1 or T2.

57. Ms Zhang notes the increased vulnerability to storm damage faced by T1 and T2 due to changes in wind exposure resulting from the absence of T3. Whilst this is a reasonable observation, and a factor that arborists should consider when assessing trees, in this case various factors make this element relatively insignificant.

58. T1 and T2 long predated T3, and established their root zones in the soil below the front garden, long before T3 grew. The soil volume around T1 and T2 is sufficiently large to accommodate these trees. T3 was also located far enough away from the other trees, for its root zone not to have intermingled to any significant extent, with the long established zone of T2, and almost certainly not with T1’s root zone.

59. Generally speaking, Corymbia citriodora have a potential lifespan of around 100 years in Sydney, they are normally well anchored in the soil, and are not particularly prone to fungal decay. An impressive, older, taller, wind exposed Corymbia citriodora growing across the road from the parties, attests to the suitability of this species in the clay soils which are common to this area.

60. The applicant submitted that she had engaged in discussions by phone with Mr Russell Kingdom of Treescape, whom she said was an AQF level 5 arborist. Based on findings he made from emailed photographs of the tree, Ms Zhang reported that Mr Kingdom advised that the tree’s lean was a problem, and that the tree should be monitored. He misidentified the tree as a Corymbia maculata, and Ms Zhang said he advised that this species had a small root plate, and was prone to uprooting.

61. Ms Zhang submitted that she had not engaged Mr Kingdom to provide an arborists report, apparently mainly due to the expense, but that she could do so if required. I ascribe Mr Kingdom’s reported advice little credence, as it was not provided in accordance with the Expert Witness Code of Conduct, contained in Schedule 7 of the Uniform Civil Procedures Rules 2005.

62. Further, based on the arboricultural expertise which I bring to the Court, I find Mr Kingdom’s alleged advice to be incorrect and inappropriately generalised. Normally, expert arboricultural advice should not be provided in the absence of site context that usually can only be gained from a physical inspection.

63. Tree roots generally grow laterally away from the trunk base, in response to the environmental forces exerted upon them, in a loosely radial pattern. They often spread well beyond the tree’s canopy, and are usually found fairly close to the surface, as they need to access oxygen for respiration. Stability in the soil is a product of the cumulative shear resistance of this broad spreading web of roots.

64. A leaning trunk does not normally reflect a problem with structural stability. When healthy trees grow on a lean, perhaps to gain more sunlight or in response to prevailing winds, they produce extra growth (reaction wood), as and where needed, in both roots and branches, in order to optimise strength.

65. Throughout their life, trees compensate for the various demands of their environment, particularly winds, and gravity, provided they are sufficiently healthy and vigorous to do so, and where they are not compromised by senescence or species considerations regarding wood strength.

66. This tree in ‘the prime of its life’, perhaps about 50 years old, and a useful life expectancy of 80-100 years is not uncommon in Sydney, where the tree’s growing environment appears to have been relatively undisturbed, as is the case here. There are no obvious signs on the trunk or on the branch scaffold of past shedding of branches.

67. In some rare situations, lean is a problem, but this is most common where the angle of the lean is extreme, and/or when there is insufficient soil volume to anchor the tree.

68. Certainly, a tree may be a hazard, and thus increasingly prone to windthrow, when it becomes unstable in the soil, and its vertical trunk starts to lean, or a leaning tree increasingly leans (i.e. partial windthrow). In such situations, there are normally signs around the tree base which an arborist may interpret, such as soil heaving and lifting, or cracks in the soil.

69. To clarify this possibility, I conducted a rigorous inspection around the tree base and the surrounding soil, but observed no indicators leading to stability concerns. In this situation, there are no apparent signs that the structural integrity of T1’s root system or root/trunk junction is compromised, nor that the tree is unstable in the ground.

70. Ms Zhang provided a ‘Technical Report’ from Mr Tao Zhang, who cites his qualifications as Senior Engineer, Director General, the Ministry of Engineering, and his field of study as Geology, Geological Engineering and Survey.

71. Mr Zhang notes that a tremendous part of T1, including the roots, is outside of (the respondent’s) fence line. This issue of encroachment, which also covers roots, is addressed above in relation to damage.

72. Mr Zhang notes that as the canopy grows heavier, so do the roots, trunk and big branches. He submits that the topsoil, subsoil and parent material, do not increase, however, and that the static amount of soil can thus not sustain the increasing weight of the tree, especially when subject to storms and wind. This rationale fails to consider how healthy trees grow and strengthen in response to the environmental forces impacting on them, and there are no tree or site-based features present in this situation to support this conclusion. There is nothing about the texture or other characteristics of the visible soil that arouse concern, particularly considering the tolerance of this species to heavy winds.

73. Mr Zhang’s brief report also attempts to cast aspersions on T1’s integrity because of its lean. This issue has been addressed and dismissed above. He also notes the uprooting of T3 as a basis for concern about T1 and T2, because they are “the same tree category planted on the same terrain.” Again, such a conclusion has been rebuffed in my analysis above.

74. Overall, I also give little credence to Mr Zhang’s report. As with Mr Kingdom, his report was not produced in accordance with the Expert Witness Code of Conduct, contained in Schedule 7 of the Uniform Civil Procedures Rules 2005. Further, he has not performed any soil excavation or soil testing to support his submission, he has expressed views outside his area of expertise, and he has unreasonably linked the circumstances surrounding T3’s demise to T1 and T2.

75. There are no obvious characteristics of T1 that cause concern with respect to risk of injury, and no formal risk assessment has been provided to support Ms Zhang’s claim. There is no apparent sign of structural weakness in the trunk, nor issues with structural stability. There are no obvious faults at branch junctions, nor a reported history of repeated failures of overhanging branches, nor near misses.

76. Along with the photo of the branch that fell onto Ms Zhang’s electricity service wire, Ms Zhang supplied a photo of a small branch, similar in size to the first, which apparently fell onto the nature strip in front of her property, on 7 September 2019. When one assesses tree risk, the occupancy rate of the area below the tree must be considered. This is a quiet suburban street. During my site inspection, conducted on a bright, sunny day, I saw no pedestrians walking along the nature strip, and there was no suggestion or evidence provided by Ms Zhang that this infrequent level of occupancy was unusual. On stormy or windy days, when branches are much more likely to break from trees, pedestrian occupancy outside buildings is usually much lower still. Therefore, the likelihood of a pedestrian being hit and injured whilst walking past T1 is very low, which is an acceptable risk.

77. Overall, there is a complete absence of evidence to support a finding that the risk of injury is probable or likely. Returning to the guidance provided in Yang 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 very low.

78. Ms Zhang’s claim under the Act with respect to likelihood of injury is thus also dismissed.

79. 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 T1.

80. 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, there are many environmental benefits provided by T1, and they deserve mention.

Discretionary matters – s 12

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

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

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

• With respect to s 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 Ms Mercer may wish to have some lower branches, which were previously pruned inappropriately, removed back to branch collars in compliance with AS4373-2007, Pruning of amenity trees.

• The tree contributes significantly to privacy, to protection from the sun, to landscaping, and to the amenity and scenic value of Ms Mercer’s land (subss 12(b3), (e)).

• When viewed from the street in front of Ms Mercer’s property, one can appreciate the significant local amenity that the tree provides, and also how healthy it appears. It provides significant intrinsic value to public amenity, and, given its age, may have historical value (subss 12(c), (f)).

• 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. A nesting hollow was noted in a major branch junction (s 12(d)).

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

• Section 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. The fact that ‘the tree was there first’ is relevant in this respect, in that it is unreasonable to park a vehicle under the canopy of a large, long established tree, and not to expect to take a level of responsibility for the refuse that will naturally fall from it, or for any risk that may be incurred.

In Black v Johnson (No 2) [2007] NSWLEC 513, the Court has published a tree dispute principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make.

In a similar vein, while Ms Zhang may prefer to park her car on a part of the driveway that is directly under the tree’s canopy, this represents a ‘failure of an applicant to maintain their own property’.

Whilst I acknowledge that the applicant’s preference is to generally park under the tree as a matter of convenience, any claim related to refuse falling on the car should be viewed in this light, particularly considering how simple it is to avoid this occurrence. Just as one would likely park a car under the shelter of a readily available and functional carport, in anticipation of a predicted hail storm, it is similarly reasonable to make a simple adjustment that may prevent damage from refuse, however minor, occurring.

Conclusion

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

1. The onus is on the applicant to prove her 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 T1 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 for this to be measured against the myriad of 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

83. The Court orders that:

1. The application is dismissed.

………………………….

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 07 September 2020