Everett v Munro [2020] NSWLEC 1173

Land and Environment Court New South Wales

Medium Neutral Citation: Everett v Munro [2020] NSWLEC 1173 Hearing dates: 13 February 2020 Date of orders: 13 February 2020 Decision date: 13 February 2020 Jurisdiction: Class 2 Before: Douglas AC Decision: The Orders of the Court are: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – overhanging branches – risk of injury Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 McPherson v Lake [2017] NSWLEC 1081 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: Regan James Everett (Applicant) Peter Munro (First Respondent) Ruth Munro (Second Respondent) Representation: R Everett (Litigant in Person) (Applicant) P Munro (Litigant in Person) (Respondent) File Number(s): 2019/315927 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 Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr Everett of Baulkham Hills, relating to a Wallangarra White Gum (Eucalyptus scoparia) (the tree) located in the adjacent neighbouring property.

Onsite hearing 1. Mr Everett, the applicant, and Mr Munro, the first respondent, attended the hearing.

2. The tree is located in the rear yard of Mr Munro's property, about two metres from the common boundary. This boundary runs approximately north-south, and is delineated by a metal panel fence.

3. The tree is mature, and stands approximately 13 metres tall. The trunk and major branch scaffold are above Mr Munro's yard, but it is leaning towards the common boundary, and two branches in particular, extend over Mr Everett's rear yard by about seven metres.

The applicant's case 1. Mr Everett seeks the following orders: 1. "Cutting off of 'ALL' branches overhanging the boundary line, back to the boundary fence line at least.

2. Cutting a significant amount of height off the tree, to - Correct the lean and balance the tree against further leaning onto my property.

3. Cutting off of 'ALL' branches overhanging the boundary line, back to the boundary fence line, and cutting a significant amount of height off the tree to severely reduce: i. leaf litter filling my gutters, swamping my garden, and tainting my washing on the washing line. ii. falling leaf litter, thus allowing me again to be able to use my washing line, there since my house was built, but not able to be used now. iii. leaf litter and stop branches coming down onto my property, constantly hitting me whilst in my garden, with the risk of injury currently there all the time.

4. Cutting off of 'ALL' branches overhanging the boundary line, back to the boundary fence line, and cutting a significant amount of height off the tree, to allow me safe access, and enjoyment of my land."

The respondent's case 1. Mr Everett's proposed orders for heavy pruning is resisted by Mr Munro, though he provided no written response to Mr Everett's submissions. He sought the decision of the Court.

Jurisdictional requirements 1. 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.

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

3. As required by s 10(1), 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 Everett provided evidence showing unsuccessful attempts to organise mediation, and extensive correspondence with Munro, reflecting his efforts to resolve the issue.

4. 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 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.

5. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.

Overhanging branches and dropping debris 1. Mr Everett seeks that branches overhanging the boundary line be pruned from his property, back to the boundary fence line at least, plus the cutting of a significant amount of height off the tree.

2. Though Mr Everett advised that he was not making a claim for damage caused by the tree, many of the issues in his claim are addressed as damage under the Act.

3. In respect to possible and or future damage or injury, in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 , Preston CJ says at [56], that mere encroachment is not damage, and at [171], that: "…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." 1. In Barker v Kyriakides [2007] NSWLEC 292 (Barker), at [20], a tree dispute principle was established, which assists when considering urban trees and ordinary maintenance issues arising from them. This principle is stated in the following terms: "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 their gutters and surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small

elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree." 1. 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. Therefore, no jurisdiction is engaged under the Act to remedy such refuse dropping onto Mr Everett's property.

2. As to falling debris and bird droppings preventing use of the washing line, this issue has also been resolved. Notwithstanding that Mr Everett claimed that Mr Munro entered his property without explicit permission, Mr Munro pruned the branches overhanging the washing line pre-hearing, and they are now at least 1.5 metres clear.

3. Though Mr Everett, therefore, has no recourse under the Act to remedy the overhanging branches and dropping debris, Mr Munro acknowledged that some pruning was reasonable, particularly on the two lowest overhanging branches. Pruning of descending smaller branches, and reduction pruning of about two metres from the ends of these two long branches, along with major deadwood, would be an appropriate specification.

Risk of Injury 1. Mr Everett's request for major pruning is also based on the perceived high risk of injury from branches dropping on to people congregating on the areas below the tree. These areas are occupied by paths and unused garden beds.

2. Based on the decision published in McPherson v Lake [2017] NSWLEC 1081 at [10], with respect to injury, the Court considers the risk posed by a tree 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.

3. The tree appears healthy. It has moderate foliage density appropriate to its age and species, appears to have a sound branch structure, and no obvious signs, nor a reported history, of branch failures.

4. There is a low to moderate level of small deadwood spread around the canopy, with a few larger branches no longer than one metre, and with a diameter no larger than about 20mm. While it may be useful to remove some of these branches, deadwood of this size is not normally considered a hazard.

5. The back yard area of perceived risk with respect to falling branches, under the tree, appears to get little usage. I acknowledge that occupancy may increase if the tree canopy was pruned and raised, but with only two people living in the house, and no sign of usage currently, much change would seem unlikely.

6. Low occupancy of the area, combined with only minor consequences likely resulting from the impact of even the largest metre long branch, results in a low risk rating.

7. In the absence of any obvious deadwood of more than 20mm diameter at the branch collar, there is insufficient evidence to support the applicant's fear and apprehension. No tree risk assessment was provided to support this claim, and the level of risk is considered low and acceptable. This element is thus also dismissed.

Conclusion 1. From the evidence adduced, I have reached the following conclusions: 1. The issue of falling debris on to the backyard, and blowing onto the roof, is addressed and resolved with the guidance of the tree dispute principle established in Barker.

2. Though the overhanging branches cause annoyance and discomfort to Mr Everett, encroachment alone is not damage, and thus no remedy is available under the Act.

3. Even if the jurisdiction had been engaged, the remedy of major pruning of height plus all overhanging branches is not a viable option. While it is physically possible, it would constitute removal of the majority of the foliage, which is essential for growth. Though the resulting stressed tree may initially respond with dense epicormics sucker growth, such drastic pruning normally precipitates rapid decline, and is specifically prohibited in AS4373:2007 (Pruning of Amenity Trees).

4. The level of risk from branch drop onto the back yard is considered low and acceptable.

Orders 1. Accordingly, the application is dismissed.

………………………….

J Douglas

Acting Commissioner of the Court

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