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[2012] NSWLEC 1233
Land and Environment Court (NSW)
2012-08-21
Original judgment source is linked above.
Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application made under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Woy Woy against the owner of two trees growing on an adjoining property. 2The applicant seeks orders for the removal of the two trees on the basis that branches from the trees may fall onto power lines near her property or onto her property. In the event of the powerlines coming down this may electrify a metal fence or her pool thus potentially causing injury to anyone who may be in contact with those things. The applicant also contends that branches from the paperbark tree have fallen onto her pool cover and have damaged the cover and the clips that support it. She is concerned that branches will continue to fall, particularly in windy conditions, and cause damage or injury. The applicant is concerned that wet soil conditions near the trees may predispose them to complete failure, potentially bringing down powerlines and causing damage or injury. 3The respondent has owned his property since December 2011. The application to the Court was made in June 2012.
4There are two trees in contention. Tree 1 is a Melaleuca quinquenervia (Broad-leafed Paperbark) and the other is most likely a Eucalyptus botryoides (Southern Mahogany). The size, species and location of the trees (relatively close to the shoreline of Woy Woy Inlet - Brisbane Water) suggest they may be remnants of the original vegetation. 5The trunk of the paperbark is approximately 5.5 metres from the dividing fence. Its canopy overhangs the applicant's property by about 1 metre. The Eucalypt is some 13 metres to the northwest of the northwestern corner of the applicant's property. No part of this tree overhangs or is close to the applicant's land. 6The Paperbark is in poor condition and a large portion of the upper canopy may be dead; some lower sections and individual branches are alive. The Eucalypt is healthy and in good condition. I noted the damp soil near the base of the Paperbark. I saw no signs such as unusual leaning of the trees, or heaving, compression or cracking of the soil at their bases to suggest that whole tree failure was likely in the foreseeable future. 7Along the southern boundary of the respondent's property are low voltage powerlines servicing the respondent's and other properties. The spans of wires adjoining the applicant's property are uninsulated and vertically configured. The spans to the west of the northwestern corner of the applicant's property, and closest to the Eucalypt, are insulated. The dividing fence between the parties' properties is a sheet metal fence on timber footings. 8The applicant has lived on her property for about eleven years. She built an in-ground swimming pool in the western section of her garden. She stated that the Paperbark was well established at that time but she didn't think it would cause any problems. 9According to the application and confirmed in oral evidence given on site, the applicant approached Ausgrid, the network owner, with her concerns about the extent of overhang and interference with the Paperbark and the powerlines as well as her general safety concerns. 10In April 2012, Ausgrid's tree pruning contractors removed a number of branches from the paperbark. The respondent followed up this work with the contractors. A representative from the contracting company met the respondent on site and confirmed that the clearances met Ausgrid's guidelines and from their perspective, no further pruning was required. 11With the experience and expertise I bring to the Court, I can confirm that while some branches remain above the wires, the clearances are typical industry standards for the nature of the electrical service. 12In oral evidence, the respondent stated that he has applied to Gosford Council for permission to remove both trees. He stated that the advice from the relevant council officer was that permission to remove the trees under the Tree Preservation Order is unlikely to be given however, it may be considered if a development application is lodged for other works. 13In applications made under Part 2 of the Act, critical jurisdictional tests are found in s 10(2). This section states that the Court must not make an order unless it is 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. 14The 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...". 15If any one of the tests is met for either of the trees, then the Court's powers under s 9 of the Act to make any orders it thinks fit to remedy, restrain or prevent damage or injury, are engaged. If no tests are met, then the Court cannot make any orders. 16Dealing first with the Eucalypt, as discussed above, there are no signs that this tree is likely to fall over or, in any direct or indirect way, cause damage to the applicant's property or injure anyone on her property. The respondent raised no concerns about injury to anyone on his land. The applicant did not provide any evidence of past damage; her concerns are generally about the risk of incidental electrification of her property. 17After considering the situation, I find that the applicant's concerns, although strongly held, are squarely in the realm of 'theoretical possibility'. There is no evidence to suggest what the applicant fears will ever come to fruition. Therefore as s 10(2) is not satisfied for the Eucalypt, the Court has no jurisdiction to make any orders for any interference with tree and this element of the application is dismissed. 18Turning to the Paperbark, as with the Eucalypt, there is no evidence to suggest the whole tree is likely to fall over. These trees are typically found in wet and swampy conditions. 19The applicant was unable to produce any evidence of the branches she says have fallen onto her pool cover since the respondent has owned the property as she says she regularly clears them up and disposes of them in the green waste system. The only materials on the pool cover at the time of the hearing were leaves and other small debris from the paperbark. 20However, while the tree now only overhangs the applicant's property by about one metre, the poor condition of the upper canopy is such that branches will become more brittle as they decline and their failure is highly probable. Therefore there is something more than a theoretical possibility that branches could fail, particularly in strong winds, and fall into the applicant's property and cause, in the near future, damage or injury. 21Therefore as s 10(2) is met, I can consider what, if any orders, are appropriate in the circumstances. This requires consideration of a number of discretionary matters in s 12. 22Relevant here:
J 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: 22 August 2012
Fitzgerald
Attard