Lee v Lau

Land and Environment Court (NSW)|2021-09-02|Before: Centre J

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

COMMISSIONER: The applicant, Mr Lee, shares a rear property boundary with Ms Lau, the respondent, in Eastwood. Ms Lau has resided there for about 24 years, and Mr Lee, for about 17 years.
Mr Lee lodged an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), in order to prevent near future damage from a tree, and associated risk of injury. The tree is a Pinus radiata (Radiata pine) in early to mid-maturity, about 12 metres in height with a canopy spread of approximately 9 metres. It is located about 3 metres from Ms Lau's rear boundary. Between the properties is a stormwater channel, about 2 metres wide with banks about 2 metres wide on either side. Thus, there is a gap of about 6 metres between the rear boundaries of the two properties.

The applicant's case

In his application, Mr Lee proposes the following orders: (a) To restrain or prevent damage to property. (b) To prevent injury to any person.

The on-site hearing

The hearing was conducted via audio-visual means according to the Court's COVID-19 Pandemic Arrangements Policy, on 2 September 2021. Both parties were self-represented.
Based on photographs supplied, the tree appears to be healthy and vigorous, with a dense foliage cover. Its trunk and branches display no obvious faults, nor is there any reported history of branch failures.

Jurisdictional requirements

With respect to s 7 of the 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.
The Land and Environment Court (LEC) has applied the decision of the Court of Appeal in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429, in which the Court of Appeal held that adjoining does not mean immediately linked to or contiguous with. Trees located across a public street (P. Baer Investments Pty Limited v University of New South Wales [2007] NSWLEC 128) or separated by a public walkway (Murray v Shoebridge [2007] NSWLEC 785) from the applicant's property have been held to be "on adjoining land". Therefore, though these two properties are separated by a canal, and do not 'join', I am nonetheless satisfied that for the purpose of this application, the tree is "situated on adjoining land".
Mr Lee has satisfied the requirement under s 8 of the Act: to serve notice to the respondent more than 21 days prior to the proceedings.
He has also satisfied 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, as displayed by communication between the parties over the last year, and evidence of a fruitless attempt to conduct mediation with Ms Lau under the guidance of a Community Justice Centre representative.
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.
The tree is growing on a significant lean, diagonally across the respondent's property, and towards the applicant's land. Part of its upper canopy appears to be encroaching Mr Lee's property, but this is more complex than first impressions suggest. Mr Lee acknowledged Ms Lau's contention, that he, along with adjacent neighbours, had 'absorbed' about two metres of stormwater bank land, owned by Sydney water, into his property, and enclosed it with his rear fence. His clothesline, located near this fence, and perhaps part of the adjacent laundry and toilet, attached to his garage, can thus not be considered under the Act with respect to damage, as they are not located on land owned by Mr Lee.
Mr Lee contended that needles (leaves) and other debris from the tree, dropping onto the roof of his garage, and his washing line, had been an ongoing issue since he occupied his property in 2003, but that he, nonetheless, chose not to 'make trouble' about it with Ms Lau.
In February 2020, however, Mr Lee's concerns about the safety and stability of the Pine tree were aroused when a tree in his yard uprooted and fell over. Mr Lee considered that the Pine tree was "worse", and more likely to fall because of its lean.

Dropping debris

Though Mr Lee did not pursue the issue of Pine needles and other debris from the tree dropping onto the roof of his garage, and his washing line, it is nonetheless relevant for him to understand the Court's position. Though Mr Lee may suffer an ongoing maintenance impost as a result of tree debris dropping and blowing onto his property, under the Act, this does not constitute damage.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) at [171], Preston CJ said 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 Act. "Hence 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 is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at para 20, establishes the tree dispute principle; "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."
Further, while branches encroaching above and across neighbouring properties may be unwelcome, in Robson at [56], in analysing nuisance, His Honour notes that 'mere encroachment into the neighbours land is insufficient to complete a cause of action for nuisance".

Pine tree uprooting - Prevention of near future damage and risk of injury

Though it is unsurprising that a homeowner may be concerned about the safety of a leaning tree, the onus is on the applicant to prove their case. 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".
Mr Lee has provided no arborist or other expert opinion to substantiate his position, which is apparently based on the questionable notion that the failure of one tree makes the failure of the Pine tree more likely, regardless of the fact that it is growing far away from the failed tree's location, and any factors, such as waterlogging, that may have contributed to its failure.
Tree roots generally grow laterally away from the trunk base in a loosely radial pattern. They often spread well beyond the tree's canopy, and are usually found fairly close to the surface as they need to access oxygen for respiration. Stability in the soil is a product of the cumulative shear resistance of this broad spreading web of roots.
It is unclear why the Pine is growing on a lean, but this, of itself, is not a fault, or hazard. When healthy trees grow on a lean, perhaps to gain more sunlight or in response to prevailing winds, they produce extra growth, as and where needed, in both roots and branches, to optimise strength. Alternatively, it may have become partially uprooted when young, and re-established a sound, secure root system and trunk base, with age.
It is generally only when a tree with a vertical trunk starts to lean, or a leaning tree increasingly leans (i.e. partial windthrow), that the tree may become a hazard. When a tree becomes increasingly prone to windthrow, there are normally signs such as soil heaving and lifting, or cracking, which an arborist may interpret. In this situation, there are no such indications that the structural integrity of the Pine tree's root system or root/trunk junction is compromised, nor that the tree is unstable in the ground.
In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb in relation to damage, the 'near future' is deemed to be a period of 12 months from the date of the determination. With respect to injury, the Court considers the risk posed by a tree 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.
Based on the available evidence, there is no reason to suggest that the Pine tree is likely to fail in the near future, and cause damage. There are also no obvious characteristics that cause concern with respect to risk of injury. There are no apparent signs of weakness in the trunk, nor issues with structural stability. There are no obvious faults at branch junctions, nor a history of failures of branches, overhanging or otherwise, nor near misses.
No formal risk assessment, or other evidence, has been provided by Mr Lee to support his claim, and I am not satisfied that the trees represent a risk of injury that would be considered anything greater than low, and this is considered an acceptable risk.
Overall, Mr Lee's has not progressed his case beyond "a theoretical possibility", in terms of providing evidence to substantiate, on the balance of probability, that damage and or injury, as a result of the Pine tree, is likely. Therefore, with s 10 not satisfied, I have no jurisdiction under s 7 of Part 2 of the Act to make any orders with respect to the tree, and there is also no requirement to consider the discretionary matters in s 12.

Orders

As a consequence of the foregoing, the Court orders that the application is dismissed.

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: 06 January 2022

At a glance

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Judgment (9 paragraphs)

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Cases Cited (7)