Clarke v Darcy

Land and Environment Court (NSW)|2023-08-10

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

Background

COMMISSIONER: Kristeen Clarke, the applicant, has owned and occupied a dwelling in Camden South since 1988, where she shares a property boundary with the respondent, Christina D'Arcy. The parties have been long term neighbours and the respondent reported a history of conflict between the parties over vegetation on her property.
In 2022, Ms Clarke lodged a development application with Camden Council (Council) which proposed demolition of her existing dwelling and construction of a new dwelling. The applicant's existing dwelling was about 5.5 metres (m) from the parties' common boundary, while the planned dwelling extended to about 1 m from this boundary.
A mature but relatively compact Jacaranda mimosifolia (the tree), growing about 1230 mm within the respondent's land, is not impacting the applicant's existing dwelling but its canopy is likely to impact the closer proposed dwelling. The respondent claimed that Council offered two solutions: relocation of the dwelling further from the tree or gaining the respondent's consent for heavy canopy pruning.
Ms Clarke resisted alteration of the proposed dwelling's footprint and alternatively proposed that Ms D'Arcy remove the tree. The respondent values the tree and opposed either tree removal or pruning.

The on-site hearing

The hearing commenced in the respondent's rear yard with both parties in attendance for an inspection of the tree, after which the extent of property damage attributable to the tree was assessed on the applicant's land. The applicant had submitted an Arboricultural Impact Assessment (AIA) (the report) prepared by Michael Garton, an Australian Quality Framework level 5 arborist from Vertical Tree Management and Consultancy, based on an inspection undertaken on 22 March 2023.
From Mr Garton's Tree Assessment Data, at Table 2 of the report, the tree was estimated to be 12 m tall with a canopy spread of about 9 m, and trunk diameter at breast height (DBH) of about 400 mm. The respondent claimed the tree was in situ prior to the applicant's occupation.
The tree displayed no apparent signs of structural weakness in its main or secondary trunks, nor indication of faults at branch junctions. Based on my ground-based external assessment, the tree appeared to be healthy and structurally sound. In Table 2 of the report, Mr Garton noted the tree was of "good health with fair structure". He said the tree becomes "heavily epicormic" at a height of 10 m "as a result of significant reduction pruning over the [applicant's] dwelling having occurred throughout the tree's lifetime" and added that poorly structured epicormic growth had a "low-risk rating due to their [small] size and [low] likelihood of impacting a target". Though Mr Garton submitted that epicormic growth is a typical trait "for the species", he assigned the Jacaranda a "low amenity value and low retention value".
In her oral submission, Ms Clarke claimed that undulations in a back yard paved area may have been caused by the tree's roots and speculated that the tree's "roots must be big and must be somewhere". Further, the applicant submitted that the tree may cause future damage to her pool fence and claimed that the tree's low branches overhanging her yard and falling debris would prevent the desired use of her land within about 2 years.
The respondent values the tree for privacy, shade, its scenic contribution to her land and for its ecological contributions. Ms D'Arcy also sought to avoid future conflict around ongoing pruning requests.

Jurisdictional requirements

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.
Section 8(1)(a) of the Act requires applicant/s to give the owner/s of the land on which the tree/s are situated at least 21 days' notice of the lodging of the application and the terms of any orders sought. Section 8(1)(b) of the Act requires the applicant to provide such notice of lodging of the application documents to any relevant authority that would, in accordance with s 13, be entitled to appear in proceedings in relation to the tree. The applicant provided a Statutory Declaration which detailed personal service on the respondent and on Council on 10 July 2023, in satisfaction of the requirements under s 8 of the Act.

Reasonable effort to reach agreement

Ms D'Arcy submitted that the applicant had made little attempt to reach agreement with her prior to lodging the application and that Ms Clarke was unwilling to negotiate beyond her preferred outcome.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ("Robson"), at [191]-[194], Preston CJ provides the following extensive commentary: "[191] The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that: "[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.: para 1.13, p 7." [192] The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33. [193] The Trees (Disputes Between Neighbours) Act 2006 did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement. The notification requirement under s 8 of the Trees (Disputes Between Neighbours) Act 2006 is of lodging of the application and the terms of any order sought. Of course, such notification may prompt discussions between the parties, but it serves a different function to the Law Reform Commission's recommendation of giving notice before taking court action. [194] The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application."
Regardless that Ms D'Arcy was dissatisfied with the nature of the applicant's negotiations, the Act does not prescribe negotiation requirements. Evidence of repeated approaches by the applicant, and Ms Clarke's engagement in mediation and at the final hearing is sufficient to satisfy the requirements of s 10(1)(a) of the Act; to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated.
The next major test that is posed, by s 10(2) of the Act, states: (2) The Court must not make an order under this Part unless it is 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.
In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, the 'near future' in relation to damage, as a rule of thumb, is deemed to be a period of 12 months from the date of the determination.
If s 10(2) of the Act is satisfied, in contemplating orders, the Court is required to consider relevant discretionary matters in s 12, such as the tree's attributes and benefits.

Paving damage

I was not satisfied that the tree had caused undulations in paving as no causal link between the tree's roots and paving damage was visible on site or established by the applicant. In Stevens v Russell [2016] NSWLEC 1233 ("Stevens") at [41], Commissioner Fakes said: "It is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
In the case before me, no site, photographic, oral, or other submitted evidence showed a causal nexus between backyard paving undulation and the tree's roots.
Photographs in the report, and at 6.A of the respondent's submission of 27 July 2023, show aerial views of both properties with dense tree canopies covering most of the applicant's rear yard. The respondent's photograph 9.B showed 8 trees growing near the Jacaranda close to the common boundary, the majority of which were fairly large Eucalyptus trees. For its age, the Jacaranda appeared relatively small and suppressed and this may be explained by competition from these trees, for soil volume and light.
Tree roots are opportunistic and may extend far beyond the spread of a tree's canopy. Even if roots had been exposed as a cause of Ms Clarke's paving undulation, the onus rests with the applicant to prove that such exposed roots are from the Jacaranda, rather than from one or more of the other 8 proximal trees. Identification of roots is generally undertaken by hand excavation and root mapping, microscopic tissue comparison, or through DNA analysis.
Lastly, it became apparent at the hearing that the paving damage was historical rather than recent and had occurred long ago. Section 14(1)(d) of the Limitation Act 1969 applies to claims under the Act, imposing a six-year time limit for claims of compensation for past damage, other than for building foundations under certain circumstances.
The respondent's photographs 6.B - 6.D, one of which Ms D'Arcy captioned "Mature trees illegally cut down", display large Eucalyptus trees being removed from the applicant's rear and side yards. Council is the consent authority responsible for assessing applications for tree removal and enforcement of breaches that may occur. The Court has no powers to determine or influence such issues under the jurisdiction of the Act.

Pool gate damage

The applicant submitted that the tree may cause future damage to her pool fence. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said, "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage".
The applicant provided no evidence to advance her claim regarding future gate damage, beyond a theoretical possibility. The mere presence of a pool gate near the tree, suggests only a 'theoretical possibility' of future damage, and even less likelihood of near future damage, in the next 12 months. As no evidence of prior or current pool gate damage or other substantive evidence was submitted, there is no reasonable basis for supporting the applicant's claim that the tree is likely to cause pool gate fence damage in the near future. My inspection showed that the tree was well clear of the common boundary fence, not causing damage, nor likely to cause future damage.
The likelihood of future damage to the applicant's property has been significantly influenced by Ms Clarke's action in having a deep trench excavated close to and roughly parallel with the common boundary where the trench passed close to the tree. As displayed in the respondent's photographs 8.A - 8.D, this excavation caused considerable tearing and destruction of adjacent trees' roots and is likely to have damaged roots of the Jacaranda tree.
Excavation of this nature is the antithesis of the tree protection options and methodology outlined at 6.2 of the report, where Mr Garton recommended "non-destructive measures such as hand-excavation or an Airspade", "supervised by the project arborist" for investigation of root presence, and determination of appropriate intervention. As roots are generally concentrated in the upper 600 mm of soil, and the excavation appeared to extend to about this depth, few live Jacaranda roots were likely to remain on the applicant's side of the trench, and regrowth from roots roughly severed by the excavator is likely to be compromised and inhibited. Consequently, the likelihood of near future damage from the tree's roots is minimal.

Debris dropping onto applicant's property, compromising use of her land

Ms Clarke's third damage claim was that the tree's low branches overhanging her yard and associated falling debris would, within about 2 years, prevent the desired use of her land.
Though the applicant preferred that the branches and roots of the tree be restricted to the respondent's land and not encroach beyond the common boundary, this is not a requirement under the Act. At [56] of Robson, discussing the issue of nuisance, his Honour states that "mere encroachment into the neighbour's land is insufficient to complete a cause of action".
In providing a wide range of benefits to the urban community, it is common for roots and branches of trees to encroach across boundaries, usually with little consequence. The submitted photographs indicated that roots and branches from the applicant's trees probably encroached into the respondent's land and that of other neighbours.
At [166] of Robson, his Honour noted: "[166]...Hence, damage caused by a tree's roots to buildings, fences, paving or other structures, or to fruit trees, crops, ornamental gardens or other vegetation growing on a neighbour's land, may be covered by the Trees (Disputes between Neighbours) Act 2006 but damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes between Neighbours) Act."
No damage to buildings, fences, paving, or other structures was proven by the applicant to be caused by the tree, and no claim of damage to fruit trees, crops, ornamental gardens, or other vegetation was submitted by Ms Clarke. Thus, there is no evidence to support a claim that the applicant cannot reasonably use her land, thus s 10(2) of the Act has not been satisfied.
Annoyance from debris dropping or blowing from a tree onto neighbouring land, a common theme in many applications made under Pt 2 of the Act, is discussed by his Honour, at [171] of Robson: "[171]...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 Act, and that "leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours 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."
The issue of maintenance that also commonly arises is addressed in Barker v Kyriakides [2007] NSWLEC 292 ("Barker"), which, at [20], established the tree dispute principle: "It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle 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 the gutters and the 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."
If damage to property had been proven, and the jurisdictional tests at s 10 of the Act were satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any such orders, the Court must consider a range of matters set out at s 12 of the Act. Though not required in this case where s 10(2) of the Act has not been satisfied, the following considerations submitted by the respondent are nonetheless relevant.
The respondent's tree is located about 1.2 m from the common boundary. It appeared healthy but looked relatively stunted for its age (s 12(a)). Permission would be required for tree removal and major pruning in accordance with the Environmental Planning and Assessment Act 1979, as administered by Council (s 12(b)). Jacaranda trees generally respond poorly to extensive canopy pruning (s 12(b2)). The tree contributes to protection from sun and wind, and to privacy (s 12(b3)) and the respondent notes its scenic value for her property and role in providing habitat for possums and parrots (subss 12(d) and (e)).
An AIA details likely impacts of development on trees and usually integrates and recommends best practice techniques and procedures from AS 4970:2009 (Protection of trees on development sites) to minimise negative impacts on trees. It appeared the report was likely an extension of an AIA on the applicant's trees required with her DA. The applicant's unapproved DA is irrelevant to action under the Act and any preference by the applicant related to any pending or proposed DA places no requirement on the respondent (see Bhuta v Cefai [2023] NSWLEC 1330, at [25]).
The purpose of including neighbour's trees in an AIA is to inform required tree protection, not as a basis for their removal, but the excavation permitted or directed by Ms Clarke appeared to cause extensive tree root damage rather than optimum tree protection. Mr Garton made no claims of damage caused by the tree yet recommended that the applicant "have the matter heard" under the Act "if an amicable solution cannot be reached during mediation".

Conclusions

The onus is on the applicant to prove her case, and Ms Clarke has not provided evidence of past, present, or likely future damage that satisfies the jurisdiction of the Act. There was no reasonable foundation for the applicant's claim that the tree had caused paving damage or may cause pool gate damage in the near future. The site inspection showed that the tree was well clear of the common boundary fence, was not causing damage, and, particularly consequent to the root damage caused by the applicant, the tree was not likely to cause near future damage.
No remedy is available under the Act for encroaching branches or roots not causing damage or unlikely to cause near future damage, and annoyance regarding debris dropped or blown onto the applicant's land is dismissed with consideration of the Tree Dispute Principle in Barker. As a result of these factors, s 10(2) of the Act has not been engaged, and the Court has no powers to make orders.
Further, the tree provides environmental contributions and benefits to the respondent as noted in consideration of discretionary factors at s 12 of the Act, such that I am not satisfied by Mr Garton's determination that the tree had "a low amenity value and low retention value". In his AIA, Mr Garton noted that locating the applicant's proposed dwelling only 1 m further from the boundary than the applicant's preferred location would reduce encroachment of the Jacaranda's Tree Protection Zone to less than 10%, which is acceptable under AS4970:2009.
Given that the report made no reference to damage or risk of injury caused by the tree, which is the basis for applications under Pt 2, Mr Garton erred in recommending the applicant "have the matter heard" under the Act. The Act is not intended as a "work around" to achieve removal of a neighbour's innocuous tree when the neighbour resists such removal.

Orders

The Court orders: 1. The Application is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 January 2024

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Judgment (11 paragraphs)

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Cases Cited (7)