Duxbury v Hewitt

Jurisdiction

1. In applications under s7 Part 2 of the Trees Act there are a number of jurisdictional tests which must be satisfied before the Court's powers under s 9 to make orders are engaged.
2. There is no dispute that the tree is wholly or substantially on the respondent's land. I am also satisfied that the applicant has made a reasonable effort to reach an agreement with the respondent thus satisfying s 10(1).
3. The key jurisdictional test is found in s 10(2). This 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.
4. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…".
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. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future 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.

Observations

1. Neither party engaged an arborist to provide expert evidence. Therefore the observations made are based on the arboricultural expertise I bring to the court.
2. The tree is a mature Liquidambar growing in the south-western corner of the respondent's front garden, close to the dividing fence between the parties' properties and the respondent's front fence. Parts of the canopy overhang the applicant's front yard; parts of the tree also overhang the public domain.
3. The tree was fully deciduous at the time of the hearing. From the appearance of the buds and the majority of the branches, the tree appeared healthy. I observed no obvious structural defects. Some lopped branches and stubs were showing signs of decay. Some smaller dead branches and a hanging branch were observed. However the full extent of any dead wood was too hard to discern at this time of the year. I observed many seed pods on the ground, including around the gate rails - some old and others more recently fallen.
4. The applicant's sewer inspection shaft is located in the far north-western corner of his property, close to both the dividing fence and therefore the tree. The applicant's driveway is about 500mm from the dividing fence.

Relevant background

1. Relevant to this matter is the following timeline of events summarised from the parties' evidence.

• The applicant purchased his property in mid-2014.
• In March 2015 the applicant states that he asked Gosford council to write to the respondent about the tree (this letter is not in evidence).
• In April 2015 the applicant's 12 year old daughter slipped on a seed pod and sprained her ankle which necessitated a trip to Gosford Hospital (discharge referral in evidence).
• In August 2015 the applicant purchased the parts for a remotely operated sliding front gate which he subsequently installed himself [the applicant stated that he was not a builder by trade but had building experience].
• In November 2015 the applicant wrote to the respondent regarding the tree and requesting the tree be pruned to the boundary or preferably removed. The letter mentions the sprained ankle, the problems with falling seed pods and damage to the gate and guttering. It is unclear whether this letter was forwarded to the respondent by the council; in any event, the respondent (who does not reside on the premises) was handed a copy by the applicant.
• In December 2015 the applicant obtained a Tree Works Consent from Gosford Council for The crown lifting of lower branches to the boundary line, from one Liquidambar tree located within the adjoining property. The consent is valid for five years. Amongst other things, the consent requires work to be carried out in accordance with Australian Standard AS4373: 2007 Pruning of Amenity Trees.
• The parties attended a mediation conducted through the NSW Attorney General and Justice Department on 25 January 2016.
• In March 2016 the applicant obtained a quote for the replacement of the concrete drive.
• On 6 April 2016 the applicant engaged a plumber to inspect the sewer inspection point and shaft using CCTV. The plumber recommended straightening the shaft.
• On 15 April 2016 the applicant filed the Class 2 application with the court.

Driveway

1. The applicant states that the driveway has five 'enormous' cracks and uplifts around the base of the tree extending thought he driveway. He relies on the note made on the quote from the concreter which says: This work is to be carried out due to cracking of existing driveway by a liquidambar tree in close proximity to driveway, my recommendation would be to remove the tree before any works take place.
2. Photographs included in the claim form and verified on site show the cracks in the driveway. The enormity of the cracks is overstated but there are cracks. While there is a possibility that one or more of the cracks may have been contributed to by the tree and that the tree need only be a cause of damage to property on an applicant's land in order to satisfy s 10(2), the applicant has not provided any evidence to confirm that this is the case.
3. If I am wrong in this, as a matter of discretion no orders would be made for either the removal of the tree or the payment by the respondent for the replacement of the concrete driveway for the following reasons.
4. The driveway appears to be quite old; it is possible that there is no reinforcing. Given its age, it is likely to have been subjected to considerable wear and tear. More significantly, the respondent's evidence includes a letter and a photograph from the Real Estate Agent who sold both properties. The letter and the photograph confirm that the driveway was cracked when the applicant purchased his property. As discussed in Liang & anor v Marsh & anor [2011] NSWLEC 1026 at paragraphs [33] to [35], the applicant must own the property alleged to have been damaged by the tree at the time the damage occurred. As suggested by the respondent, this is a case of caveat emptor or "buyer beware".

The gate

1. In the application claim form the applicant states: Gate track is being shifted under pressure from tree roots causing the gate to open with difficulty and not to function as smoothly as initially. The tree's pods (approximately 4.5cm-5.5cm circumference) continuously fall into the gate track and damage the gate motor as they prevent the gate from opening. On site the applicant stated that the fruit from the tree collects in the rails and, as the gate slides along, the extra friction causes the motor to strain.
2. Given that a replacement motor and set of rails is sought, I had assumed that they had been damaged and were dysfunctional. During the hearing I asked the applicant to operate the gate. The gate opened and closed without any problems. I was not shown any displacement of the rails. It appears that the applicant is concerned about future damage.
3. I am not satisfied on the evidence before me that the tree has caused damage to any part of the gate including the motor and the rails; neither am I satisfied that future damage is likely to be caused in the usual time frame applied to these matters. However, if I am wrong in this I note part of the Tree Dispute Principle published in Black v Johnson (No 2) [2007] NSWLEC 513 at [15] which considers the making of orders when the tree was there first and a structure came later. That principal identifies a number of matters to be considered. It states in part: Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.
4. While it was reasonable for the applicant to place a gate at the end of the driveway, in this case the choice of type of gate might be questioned given the characteristic of the tree to drop large round fruit.
5. Also relevant is the discussion of the Court's other long held Tree Dispute Principle discussed in [38] of this judgment.
6. No orders will be made for any intervention with the tree, or for any replacement of parts, on the basis of the gate. As the applicant is now aware of the possible problems arising from fruit caught in the rails, it would not be unreasonable for him to take reasonable action to prevent damage by regularly clearing the rails. Should further action be contemplated, the Court has taken into account the failure of applicants to maintain their own property (see Zhang & anor v Long & anor [2007] NSWLEC 632 at [94] to [104]).

The sewer shaft

1. The applicant confirmed that the sewer is functional but the problem is that the collar and cover are not level. Without the benefit of a spirit level I observed a relatively minor tilt away from the tree and not the "very sharp angle" described by the applicant in the claim form. I observed the plastic cap and the concrete collar to be in good order.
2. The applicant relies on the notes made by the plumber on the invoice for the inspection carried on 6 April 2016. The note states [as written and in full]: Attended property as inspection opening to properties sewer main was on a sharp angle and owner was concerned a very large tree roots had snapped pipe. The Sewer main shaft bolted trap screw with concrete surround was on an angle and the glue joint had been popped off by the tree roots. The CCTV camera inspection revealed a repair had been done on the piping in the past and the sewer main riser had some deformation to it, usually caused by tree roots pushing pressure on the piping. Around the sewer shaft is the concrete driveway which already has extensive cracking and uplift. If the tree roots entire the sewer system this driveway will need to be cutup to dig up the sewer. I also noticed the neighbours water meter has been eaten by the trees trunk and now is embedded within it. Under my professional opinion this tree at the corner of the neighbouring property has and will continue to cause damage to Mr Duxbury's sewer piping and needs to be removed.
3. The plumber provided a separate quote for the works.
4. On my reading of the plumber's notes, it does not appear as though any roots were actually seen; rather, an assumption is made that the roots have caused some deformation of the riser. No evidence was provided of any of the CCTV footage.
5. On this basis I am not satisfied to the extent required by s 10(2) that the tree has caused the alleged problem with the sewer shaft; nor is there any evidence that any damage is likely to be caused in the near future. Therefore this element of the application is dismissed.

Guttering

1. The applicant alleges that the guttering "is damaged and weighed down by the heavy pods and leaves from the tree and needs to be cleared in a thorough, huge job once every month".
2. I was not shown any damage to the guttering; the concern is principally about blocking and possible future water damage.
3. I observed only a small portion of the canopy in the vicinity of the end of the applicant's roof; the majority of the roof and gutter is not overhung by the tree.
4. While I am not satisfied that any damage has occurred to the guttering as a consequence of the leaves or fruit, or is likely in the near future to occur, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter.
5. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paragraphs [168] to [173] discusses 'damage' in general. In this discussion, his Honour specifically noted (at paragraph [171]) that: 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.
6. Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which 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, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.
7. 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; and so it is with this matter.

Lawnmower blades

1. The applicant states in his claim form that: Lawnmower blades are damaged by the tree's pods that cover the entire driveway and lawn. The pods must be swept every 3 days using brooms and rakes but it is impossible to remove all pods and the few remaining damage the lawnmower blades, requiring the blades to be replaced after every second or third occasion that the lawn is mowed. The lawnmower flicks the few remaining pods onto passerbys and cars. The claim form includes request for compensation for mower blades in the sum of $150. A tax invoice for mower blades dated 27 May 2016 is for $31.60. The applicant stated that he had not kept any other invoices for mower blades. The applicant did not produce the mower blades he claims have been damaged by the fruit.
2. The respondent, who is a Greenkeeper, disputes this claim. Based on his own experience and supported by a letter from a mowing contractor who claims to mow 30-40 lawns a week and who spends about $250 per annum on blades, the applicant's claim is excessive. This is in part because lawns become semi-dormant in the winter and require little maintenance. Based on my own horticultural experience, I am surprised by this claim.
3. I am not satisfied on the evidence that any compensation should be awarded. If I am wrong in this, on balance I prefer the evidence of the respondent.

Powerlines

1. The applicant is concerned that branches may fail and damage or bring down the service line from the pole in the street to his dwelling. Again with the arboricultural expertise I bring to the Court, I saw nothing that would lead me to conclude that this was imminent or indeed likely. The tree and the powerline are currently well clear of each other. Therefore, no intervention with the tree will be ordered on this basis.

Damage to cars

1. In the application claim form the applicant states: 3 private cars are damaged when parked in carport and driveway as tree branches (approximately 3 metre - 5 metre length) often fall from the liquidambar tree onto the cars. Tree's pods continuously fall onto the cars, causing scratched, dints and leaving stain residue on the paint. The falling branches are restricting the owner's use and enjoyment of the property, forcing our private cars to be parked on the street rather than on the driveway. Photographs included in the claim form show three branches said to have fallen from the tree; all appear to have been dead branches.
2. During the hearing I asked the applicant to show me the damage he said had been caused to the cars. He stated that damage had not occurred but he was concerned about future damage. This is in direct contradiction to the claim made in his statement. The applicant's carport is well away from the tree.
3. Despite the overstatement of damage, I am satisfied that falling dead wood could cause damage to property on the applicant's land and orders will be made for its periodic removal. However, removal of the tree on this basis is unwarranted.

Injury

1. I am satisfied that the applicant's daughter sprained her ankle when she slipped on a fruit. As stated and illustrated by the applicant, the fruit are relatively large, round and obvious. Apart from the falling fruit, the applicant is also concerned about falling branches. As noted above, orders will be made for the periodic removal of dead wood as the failure of dead wood is predictable.
2. The applicant is also concerned about the trip hazard posed by a large root on the council's nature strip. I note that there is no formal foot path on either side of the road and that the ground is uneven. Therefore anyone walking along the street would need to watch where they are walking. The respondent advised me that the council has identified the root as one that council will manage by root grinding.
3. The applicant's main concern is the falling fruit. For the reasons given above, no orders will be made for any intervention with the tree on the basis of falling fruit. If the applicant wishes to reduce some of the fruit fall by undertaking the pruning permitted by Gosford Council, nothing in this judgment or the orders prevents that.

Discretionary matters

1. The making of orders under s 9 requires consideration of relevant matters in s 12 of the Trees Act. The following considerations are relevant in this matter.

• The tree was well established when the respondent purchased his property in 2001. Whoever planted it chose to plant it close to the common boundary (s 12(a)).
• Gosford Council's tree management controls clearly permit neighbours undertaking some pruning of a neighbour's tree, however consent is required (s 12(b)).
• Removal of dead wood, if carried out in accordance with the Australian Standard will have no impact on the health or structural integrity of the tree (s 12(b2)).
• The tree contributes to the amenity of the land on which it is growing and to the public. It is a large and prominent tree in the street (s 12(b3),(e),(f)).
• Whilst not a native species, according to the respondent and verified by the applicant, the tree is regularly visited by cockatoos who seem to enjoy the fruit. The cockatoos probably contribute to the fallout of green fruit earlier in the season. Therefore the tree contributes to biodiversity (s 12(d)).

1. On balance, there is nothing to warrant the removal of this tree. However, as stated above, orders will be made for the periodic removal of dead wood. The applicant was advised that access may be required to his property for the purpose of quoting and carrying out of the work; specifically, cars should not be parked on the driveway when the work is being undertaken.
2. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.

Orders

1. In conclusion, the Orders of the Court are: 1. The application to remove the tree is dismissed. 2. The application for compensation is dismissed. 3. The respondent is to engage and pay for an arborist with a minimum AQF level 3 qualification in arboriculture and appropriate insurance cover to remove all dead wood of 30mm or more in diameter at its base from all parts of the canopy overhanging the applicant's property to a distance of 2m inside the respondent's property. All hanging branches are to be removed. The initial pruning is also to include the removal of the suckering branch stub projecting towards the street and above the corner of the parties' properties. 4. The work in (3) is to be carried out sometime in October 2016 and to be completed by 31 October 2016. 5. The work in (3) is to be carried out in accordance with AS4373:2007 - Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent. 6. The applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and the safe and efficient carrying out of the works in (3). 7. The removal of dead wood and hanging branches in order (3) is to be carried out every two years in October and is to be at the respondent's expense until such time as the tree is removed. Orders (5) and (6) apply.

Judy Fakes Commissioner of the Court

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: 14 July 2016