Manton v The Owners Strata Plan No. 40735

Land and Environment Court (NSW)|2015-11-20

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

This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning a Eucalyptus saligna (Sydney Blue Gum) tree located on the respondent's property at Northmead.
The tree is located in the south western corner of the respondent's property close to the common boundary fence with the applicant's property.
The applicant has owned her property since 2009 and the pool located under part of the canopy of the tree was constructed in 2013.
The applicant is seeking orders for the removal of the Sydney Blue Gum.
The applicant contends that the tree has caused damage to her property and may cause injury to a person.
It is noted that the respondent is seeking orders for costs. Commissioners do not have the power to order payment of legal costs, costs of expert reports, application fees to the Court and other expenses. Claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or the Registrar.
The provisions of section 10(2) of the Trees Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application. These tests are: Has the tree caused damage to the applicant's property? Is the tree now causing damage to the applicant's property? Is the tree likely in the near future to cause damage to the applicant's property? Is the tree likely to cause injury to a person? Only if one or more of the tests is satisfied can I move on to consider what orders, if any, I should make in respect to the tree.

The Tree

The tree is approximately 20 metres in height and has an average canopy width of approximately 14 metres.
In October 2015 the respondent engaged Arbor Skills to undertake an assessment of the tree. Ms Bennett, the arborist who undertook the assessment provided a report on her findings and was present at the hearing.
Ms Bennett reported that the tree is in good health with fair structure and that the tree has been crown lifted to approximately 5 metres over the respondent's property and to 10 metres over the applicant's property. It was noted that the pruning sites had developed good wound wood.
The arborist's report details evidence of four past branch failures of up to 100mm in diameter and attributes two of these to the altered wind loads that have been created by the removal of limbs over the applicant's property.
The species is locally indigenous however is an isolated specimen with no direct link to the indigenous vegetation corridor that is located along the Darling Mills Creek at the bottom the street.
A copy of a Tree Management Permit issued to the respondent by The Hills Shire Council and dated March 2015 was included in the respondent's evidence. The permit included a condition that the tree was to be retained and that only pruning to remove structural faults was permitted. No structural faults were identified in the documentation. The removal of deadwood and selective pruning to 15% of the canopy was also permitted.
The applicant has not engaged an arborist to provide her with an assessment of the health or structural soundness of the tree. The Courts standard directions for tree disputes (Direction 13) permit each party and any advising expert to access the other party's property to undertake a prehearing inspection of the relevant matters. In this case the directions made by the Registrar on 21 September 2015 included Direction 13. Although there is no arboricultural evidence provided by the applicant she did have the opportunity to obtain such evidence had she decided to do so.

Property Damage (branches)

In the application it is contended that the tree drops branches that have caused damage to the roof and roof gutters. Additionally the applicant has referred to leaf litter in relation to alleged damage to the paving (staining) and pool filtration equipment.
When asked to point out the property damage on site the applicant referred to the guttering that was slightly out of alignment in one area and appeared to be slightly misshapen. Additionally the applicant pointed to the staining on the pool coping and mentioned that the pool filter had been damaged by excessive debris.
The applicant suggested that the guttering is misshapen due to debris from the tree blocking the flow of water and causing overflow and addition weight in the gutter. The issue of debris is addressed at (31) - (37).
Although there was a bundle of dead branches from the tree that had been placed near the pool fence there was no demonstrated link between any of the branches and property damage.
An image was included in the application showing a live branch lying on the lawn area. The branch appears to be approximately 30mm at the widest and 2-3 metres in length. There is no evidence provided that this branch caused damage to property.
There was nothing sighted or evidenced that would convince me to the extent required by the Court that branches from the tree have caused damage to the property.

Property damage in the near future

The applicant is concerned that the tree will cause damage to her property or the overhead powerlines over the footway if a branch falls or if the whole tree fails.
When asked if she could point out anything in the tree or around the base of the tree that was the cause for her concern the applicant was unable to do so. The applicant responded by stating that the tree was very tall and if it did fall it would potentially damage her house. Additionally the applicant mentioned that due to her fear of the tree falling or a large branch falling when it is windy or in storms that she does not sleep in her upstairs bedroom but in the lounge downstairs.
I noted that the there is no part of the canopy that overhangs the applicant's roof and in fact the edge of the canopy is approximately 5 metres from the house.
The arborist engaged by the respondent pointed out that (apart from deadwood) there are no wounds, branch attachments or visible structural defects that are of concern from an arboricultural perspective.
The issue of whole tree failure was discussed. It was pointed out that there is no soil mounding, slumping, heaving or cracking that might indicate that whole tree failure is likely.
In relation to possible future damage guidance is taken from Yang v Scerri [2007] NSWLEC 592 where the Court applied a 'rule of thumb' that the appropriate timeframe for 'in the near future' is a period of 12 months from the date of the hearing.
There has been nothing sighted or evidenced that would satisfy me that there is a likelihood of the tree causing property damage in the near future.

Insects

In the application there is reference to 'an invasion' of bugs that swarm through the outdoor area when the tree is in flower however no claim of related damage has been made.
Even if there was some damage from the insects this would not engage the jurisdiction of the Court.
The Court requires that the tree itself must be the cause of the damage. I take guidance from Robson v Leischke [2008] NSWLEC 152 where CJ Preston noted [at 189] that the cause of the damage must be the tree itself and that the mere fact that the tree may provide habitat to animals or insects which cause damage does not mean such damage is "as a consequence" of the tree. Similar findings are found in Dooley v Newell [2007] NSWLEC 715, Clune v Falconer [2008] NSWLEC 1458 in respect to mosquitoes and termites and Moase v McMahon [2010] NSWLEC 1123 with respect to bats.

Debris and Leaves

The applicant discussed the requirement for her to replace the filter cartridge in the pool cleaning unit more often than would normally be required due to the amount of debris from the tree that enters that system.
No evidence was provided that demonstrated the debris had damaged the filtering equipment or in relation to expenses that had been incurred purchasing and replacing the filter cartridges.
There was staining on the pavement that surrounds the pool that the applicant attributes to leaves from the tree. It did appear that there may be a link between the marks and the fallen leaves however it was not clear how long the leaves were left on the pavement before being removed and what methods had been used to attempt to remove the marks.
The applicant stated that she cleaned up the debris from the tree that had fallen on the pavement around the pool (on average) on a weekly basis.
As previously noted at (17) and (18) the applicant attributes the misshapen profile of a section of the guttering to the weight from debris from the tree in addition to water overflowing the side of the gutter because the debris has blocked the flow.
In relation to the deposition of leaves and debris I am guided by the Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 that says: "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 their 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."
It follows that it is therefore appropriate to dismiss the application in relation to the extent that it relates to debris from the tree.

Injury

The application was also made in regard to the tree potentially causing injury to a person. The applicant stated that this is her main motivation for seeking orders that the tree be removed.
According to the applicant she spends a considerable amount of time in the area surrounding the pool. As previously stated the pool is located under the canopy of the tree.
As discussed at (22) - (28) there was nothing sighted or evidenced that would indicate that whole tree failure or failure of live limbs is likely in the near future. There is however some deadwood throughout the canopy and it is considered that it is likely that the larger sections of deadwood would cause injury if they were to fall from the tree and hit a person.
With the expertise that I bring to the Court I determine that it is predictable that deadwood will fall from the canopy periodically.
I am satisfied that, given the use of the area below the canopy of the tree and the presence of deadwood, section 10 (2) of the Act is met and that pursuant to section 9 orders can be made to prevent injury to a person.
On the basis of the foregoing, the Orders of the Court are: 1. The application is upheld. 2. The application to remove the Sydney Blue Gum is dismissed. 3. Within 30 days of the date of this order, the respondent is to engage and pay for an AQF Level 3 Arborist with appropriate insurances to prune the deadwood from the Sydney Blue Gum. All deadwood with a diameter of greater than 20mm at the point of attachment (branch collar) is to be removed from the area of the canopy that overhangs the applicant's property and to a distance of 2 meters within the respondent's property. 4. All work shall be carried out in accordance with AS 4373 'Pruning of Amenity Trees' and the WorkCover NSW Code of Practice for the Amenity Tree Industry. 5. The contractor engaged by the respondent is to remove all debris from the pruning works. 6. If required, the applicant is to provide reasonable access for the purpose of quoting and or for carrying out the works in order (3). Work is to be carried out during reasonable hours of the day. 7. The respondent is to give the applicant written notice of the works in order (3) a minimum of one week prior to the works being undertaken. 8. For the life of the tree, every three years on the anniversary of the date of these orders the respondent is to engage an Arborist to undertake works as specified in (3). L Durland Acting 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: 30 November 2015

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