McLellan & anor v Hull & anor; Randell & anor v Hull & anor

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The owners of two properties in North Balgowlah, the McLellans and the Randells, have applied under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the pruning of branches from an oak tree growing on an adjoining property. 2The applicants claim that branches from the tree could cause damage to their properties, specifically to the McLellans' garage roof and the Randells' dwelling roof and electricity/communications cables. 3The applicants also raise concerns about debris falling from the tree and in particular the fallout of a 'black excretion' (Sooty Mould) onto their properties. They contend that the Sooty Mould stains pavers and other elements of their properties. 4The first respondent has no objection to the removal of dead wood but is concerned about the removal of too much foliage as the tree is a habitat tree for Tawny Frogmouths (seen in the tree). The second respondent has no objection to the removal of other branches. 5Section 7 of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the applicant's land, as a consequence of a tree to which the Act applies that is situated on adjoining land. 6The tree is a mature Quercus robur (English Oak). It is growing at the rear of the respondents' property and overhangs the adjoining properties owned by the applicants. The first respondent indicated where several large branches had been removed without her consent. 7The McLellans engaged an arborist, Mr Peter Castor of the Tree Wise Men to prepare a brief report on the tree. Mr Castor notes that at the time of his inspection in December 2012, the tree was healthy with no obvious structural defects. With the expertise I bring to the Court I concur with Mr Castor's appraisal however I observed a number of dead branches throughout the canopy. I consider the percentage of dead wood to be within the normal range for a tree of this age, size and species. 8Based on conversations with the McLellans, Mr Castor recommends removal of dead wood in excess of 50mm in diameter, pruning of branches in contact with the asbestos roof of the respondents' shed, pruning of branches in contact with the Randells' roof, and pruning to provide clearance for powerlines and a clothesline. 9In addition, Mr Castor suggests monitoring the population of aphids in the tree, and if necessary, taking steps to manage their numbers. 10In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This 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. 11The 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...". 12As both applications are concerned in part about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree, any history of failures and the circumstances of the site apparent at the time of the hearing.

The McLellan property 13While injury was not raised as an issue in their application, the McLellans stated that they were concerned about branches from the tree that were rubbing across the asbestos roof of the respondents' shed. They are concerned that should this happen in the future, the resulting fibres could cause injury to their children. 14I observed there to be at least a metre clearance between the nearest branch and the roof of the shed. 15In regards to this concern, the Act does not apply to damage to a respondent's property as a consequence of their own tree. Likewise the Act requires the injury to be as a consequence of the tree and not by things other than the tree. If I am wrong in this interpretation of the Act, I am not satisfied on the evidence that that part of the tree is likely to cause injury to any person in the foreseeable future and s 10(2) is not met with respect to that concern. 16The McLellans raised the issue of debris on their garage roof and the blocking of gutters and water tank, however they could not produce any evidence of any actual damage as a consequence of that blockage. 17Absent any evidence, s 10(2) cannot be satisfied. However, if I am wrong in this, as a matter of discretion, no orders would be made for any intervention with the tree on that basis. 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. 18There 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. I am not satisfied that there are any exceptional circumstances in this matter that would lead me to deviate from this consistent approach. 19Both applicants raised the issue of staining of paving etc by the Sooty Mould. Mr Castor refers to aphids feeding on the tree. The aphids exude a sugary substance - "honey dew". The honey dew becomes a substrate or food for a fungus - the Sooty Mould. The mould washes of the leaves onto surfaces below the tree. 20In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [189] states in part: 189 Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes the damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat.... 21A number of cases have dealt with various organisms including bees, mosquitoes, possums and bats. Sooty Mould as a fungus is another category of organism that is secondary to the tree. In my opinion, the Act therefore does not apply. However, again if I am wrong in this interpretation, in Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at paragraphs [11]-[14], the Tree Dispute Principle in Barker was extended to include the cleaning of mould or slime. 22As stated above, I observed overhanging dead wood of a size that could in the near future cause damage to the McLellans' property. Therefore s 10(2) is satisfied and orders can be made for the removal of that dead wood. As there is at least a metre clearance between the tree and the garage, there is no basis to order any removal of live branches over the McLellans' property.

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