This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.
COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by Mr Grenville Bedford, relating to a Pine tree located in the adjacent neighbouring property.
Mr Bedford (the applicant) and Mr Basedow (the respondent), share a rear boundary between their properties in Faulconbridge, in the Blue Mountains, near which a large Pinus radiata (Radiata Pine) (the tree) is growing, with its canopy encroaching Mr Bedford's back yard.
Mr Bedford claimed that the tree caused ongoing damage comprising debris on his roof, grass, and garden areas, and he proposed the Court make orders for tree removal, or alternatively, extensive pruning.
[2]
The on-site hearing
Mr Bedford was self-represented at the hearing, but Mr Basedow did not appear. Upon contacting him by phone, Mr Basedow confirmed that he had not attended the preliminary directions hearings, and nor could he attend the final hearing on site. The case file included at least four Court emails that Mr Basedow acknowledged receiving, but in summary, he said he had other important matters that prevented his engagement with the tree problem.
In keeping with Court procedure, the hearing thus commenced in Mr Basedow's absence, but Mr Basedow's daughter, Sonya, who lived at property, attended as an observer. Mr Basedow phoned into the hearing midway through the proceedings, made submissions, and was present for my oral summary and delivery of orders, as was Sonya.
Upon inspecting the respondent's rear yard, Mr Bedford noted the common boundary steel panel fence was damaged by the tree, which was about 16 m tall, with a canopy spread of about 12 m and trunk diameter at breast height of about 1 m. Viewed from Mr Bedford's rear yard, the tree overhung the applicant's lawn and garden by about 5 - 6 m, onto which, Mr Bedford claimed, the tree continuously dropped needles, along with faeces from birds.
Though the canopy was clear of the applicant's house, Pine needles were apparent on the roof and gutters. Gutter guard had been installed to help manage debris, but Mr Bedford said he nonetheless needed to periodically have the roof and gutters professionally cleared. Mr Bedford said the area was a 10:50 vegetation clearance zone and he was concerned about fire risk, , and noted the stress he and Mrs Bedford endured over the tree.
[3]
Jurisdictional requirements
With respect to s 7 of the Trees Act, 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. Section 7 of the Trees Act is satisfied as the tree was on adjoining land.
Section 8 of the Trees Act is satisfied as Mr Bedford served application documents on Mr Basedow with at least 21 days' notice. There was no evidence on file of the application documents being served on the Blue Mountains City Council (Council), but even if this was not done, I have waived this requirement according to the Court's powers at s 8(3) of the Trees Act, to provide for resolution of the matter, to the relief of both parties. Council tree management officers rarely attend hearings, and nothing about this case requires Council's contribution.
Section 9 of the Trees Act provides the Court with powers to make a wide range of orders.
Pursuant to s 10(1)(a) of the Trees Act, I am satisfied that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the trees are situated. Mr Bedford provided evidence of multiple written requests for removal of the trees and of mediation with the respondent's past tenants under the auspices of the Community Justice Network.
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.
[4]
Dropping debris
Mr Bedford proposed orders to remove the tree, or branches encroaching above his property, to prevent Pine needles and bird faeces dropping on his lawn and garden and needles blowing onto his house roof and gutters. There is, however, no restriction or remedy available under the Trees Act for the common urban occurrence of branches or roots encroaching across boundaries unless they also cause damage as defined in the Trees Act.
Encroachment under common law is addressed in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), at [55]-[56], where Preston CJ says:
"55 Nuisances of the first kind, causing an encroachment, are exemplified by branches or roots of a tree growing on the defendant's land, encroaching into the air above or the soil below the neighbour's land: Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-07], p 1165.
56 Mere encroachment into the neighbour's land is insufficient to complete a cause of action for nuisance; special damage must be suffered by the neighbour as a result of the encroachment to obtain the remedies of damages or injunction: Asman v MacLurcan (1985) 3 BPR 9592 at 9594."
Regardless that needles, leaves, and debris falling from neighbouring trees may be unwelcome, this alone does not constitute damage under the Trees Act, as his Honour explains at [171] of Robson:
"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."
As many applications under the Trees Act include claims that conflate falling debris with damage, the Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 (Barker), which, at [20], states:
"… 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."
Viewing this site through the prism of the Tree Dispute Principle in Barker, the required maintenance is considered reasonable, and the applicant's claim of damage from dropping tree debris is dismissed. Though I acknowledge the applicant's advanced age and the persistence of needle drop make the maintenance tasks demanding, in comparison to many properties subject to the Tree Dispute Principle in Barker, the level of required maintenance is relatively low. Professional help is a common requirement as capacity reduces and risk increases with age.
With respect to the claim of lawn damage from bird excrement, 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. Consequently, Mr Bedford's claim related to bird droppings is also dismissed.
This is explained in Robson at [189], 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]."
In considering the likelihood of future damage or injury, the tree is at mid to late maturity, and appears to be very healthy and well anchored in the surrounding soil. Though the tree encroaches over the applicant's land, live branches appear strong and well attached at junctions, and are not over extended. The tree contains a low level of small deadwood, with only two medium sized dead branches apparent, overhanging the respondent's land just beyond fence line. Pine deadwood tends to persist and dehydrate on the tree before falling, or twist and remain attached to the tree rather than breaking away, and both these characteristics lower tree risk.
As the tree displays sound health and structural condition, I am thus not satisfied that it is likely to cause injury to any person, nor that it is likely to cause damage in the near future, where the near future, as established in Yang v Scerri [2007] NSWLEC 592, is considered to be a period of about 12 months.
[5]
Fence damage
The common boundary metal panel fence had been raised on either side of the tree by thickening roots, and heaved out of vertical alignment over much of its length. There was a visible nexus between the fence damage and the tree's roots, such that s 10(2)(a) of the Trees Act is engaged.
Mr Basedow, who had owned his property for about 20 years, submitted that the second fence post, closest to the tree, was positioned out of alignment when the fence was constructed, to avoid tree roots and allow room for root growth. The same small deviation shall be used for any new fence, as Mr Basedow requested, as this will minimise the likelihood of root damage, without compromising the fence's function or appearance.
If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain, or prevent damage to property or injury to persons.
Though the applicant's claims regarding dropping Pine needles and bird faeces failed to satisfy s 10(2) of the Trees Act, the jurisdiction is engaged by damage caused to the boundary fence by the tree's roots. As only one element of s 10(2) of the Trees Act need be proved to engage the jurisdiction, orders may be contemplated, but the Court must first consider discretionary matters in s 12 of the Trees Act.
[6]
Discretionary matters - s 12
In making an order, the Court considers relevant matters in s 12 of the Trees Act, as follows:
1. The tree is located in the respondent's property less than one metre from the common side boundary. It had a large, stout trunk and commensurately large raised lateral primary roots extending under the fence (s 12(a)).
2. Radiata Pines do not appear to be exempt from permission for removal or pruning under Part C5, Tree and Vegetation Preservation, Blue Mountains City Council Development Control Plan 2015, which sits under the jurisdiction of the Environmental Planning and Assessment Act 1979 (s 12(b)).
3. Past pruning has been minimal, as is best for optimum tree health. Any removal of live foliage by pruning, or any other means, reduces a tree's capacity to photosynthesise. This reduces the tree's potential carbohydrate supply, which is necessary for all essential functions. The tree does not require pruning, other than a few moderate sized dead branches overhanging the respondent's land close to the boundary, and these branches need not concern Mr Bedford. Pruning of dead branches would not require permission from Council. The applicant's proposed "extensive pruning" included removal of all branches overhanging his property, but this would negatively impact tree health and viability. The canopy could, however, be reduction pruned to clear lawn encroachment by about 2 m, with a tolerable impact on the tree's health. All pruning should comply with AS4373-2007: Pruning of amenity trees (s 12(b2).
4. The tree contributes to privacy, to landscaping, and to the amenity and scenic value of the respondent's land. It provides protection from wind, and from sun for young children playing in the yard and contributes to local biodiversity by providing habitat. Though not a large representative of its species, the tree is sufficiently large and conspicuous to also provide intrinsic value to public amenity (s 12(b3), (d)), (e), and (f)).
5. The tree is likely to stabilise surrounding soil and reduce localised water accumulation (ss 12(g)).
6. Section 12(h)(i) considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. The Court considers that wear and tear usually arises over time with any structure. Therefore, in contemplating the relative extent to which a tree may or may not have caused damage, the age and nature of the fence needs assessment.
7. Based on myriad metal panel fences the Court inspects, this example looked about 20 years old. Though the tree's roots were obviously causing considerable uplift and bowing, the fence appeared in serviceable condition. Given its advanced age, orders will thus be made for repair of the boundary fence with new parts as necessary, rather than replacement with a new fence.
[7]
Conclusion
Upon considering the tree, the site, and the parties submissions, I have reached the following conclusions:
1. The applicant's claim regarding damage to his roof, gutters, lawn, or garden as a result of Pine needles or other debris falling from the tree is refused through the application of the Tree Dispute Principle in Barker. Similarly, the claim based on damage from bird faeces is refused upon consideration of [189] of Robson. I am satisfied that the tree's above ground structure is sound and there is no reasonable basis to consider the tree likely to cause near future damage, or risk of injury. The tree provides a range of valuable services for the respondent, the community, and the environment. Consequently, the Court has no powers to make orders under the Trees Act, based on these elements of the applicant's claim.
2. The tree's roots caused considerable uplift and bowing of the fence, which engaged s 10(2)(a) of the Trees Act. Orders will be made for repair of the metal panel dividing fence, at the respondent's expense. This is the normal Court convention unless there is good reason to apportion the cost of carrying out orders between the parties or impose the full cost burden onto the applicant.
3. Having considered wear and tear associated with the fence's age, under s 12 (h)(i) of the Trees Act, the fence shall be repaired and reinstated with the existing minor deviation around the tree, consistent with its installation prior to the applicant's occupation. The fence will thus be rendered vertical, relatively flat along its length, and fairly straight, with minimal likely damage to tree roots, and negligible impact on the applicant's yard usage. A small gap between the fence bottom plate and the roots should prevent additional damage in the medium term, as the tree's growth rate appears relatively slow, as expected at its life cycle stage of late maturity.
4. I am not satisfied that the tree presents a fire risk that justifies intervention, as its canopy is well clear of the applicant's dwelling. Notwithstanding that the applicant's dwelling was in a 10:50 vegetation clearance zone, trees overhanging neighbouring properties was a normal feature of the heavily vegetated area surrounding the site.
5. I acknowledge that Mr Basedow's lack of engagement with the applicant and the Court was motivated by Mr Basedow's role and responsibilities as a carer, rather than by malice. Consequently, I have allowed more time than normal for Mr Basedow to execute the Court orders.
[8]
Orders
The Court orders that:
1. Within 60 days of the date of these orders, the respondent, at his expense, shall employ a fencer or handyman, with all appropriate insurances, to repair the section of the common boundary fence comprising fence panels 2,3,4 and 5 and posts 2,3,4,5 and 6 west of the post at the fence's eastern corner, which shall be deemed post 1.
2. The fence repair in Order 1 shall comprise the removal of top plates and panels 2,3,4 and 5, realignment of each post, 2,3,4,5 and 6 to render them vertical, and cutting of the lower portion of each panel as required to reinstate the panels into the existing bottom plates, and reinstate the top plates, so that the top of each panel's top plate is horizontal, and consistent with the height of the adjoining panels 1 and 6.
3. The fence repair in Order 1 shall be completed in a single continuous operation to minimise the period that the fence section is absent.
4. The respondent shall advise the applicant of the date and approximate starting time of the fence works by email and provide at least 72 hours' notice.
5. The applicant shall provide all reasonable access to the respondent's contractor, who holds all appropriate insurances, to complete the works.
6. The works shall be undertaken during reasonable daytime working hours.
[9]
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Decision last updated: 21 August 2023