JUDGMENT
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
COMMISSIONER: In October 2015 the applicants purchased their Avoca Beach property. Growing on adjoining properties to the west and upslope of their dwelling were a number of tall and established Eucalypts, most likely remnants of the original forest. Three of those trees on one of those properties, the respondents' property, are the subjects of these proceedings. [It appears that other proceedings against another party were commenced in regards to the other trees but this has since been resolved/ withdrawn. The application claim form refers to a large branch that fell from a tree onto the roof of the applicants' dwelling but there is no evidence that this branch came from the respondents' trees].
In January 2016 a green branch fell without warning from one of the respondents' trees across the applicants' backyard. In the process, a small section of the dividing fence was damaged.
The applicants filed their Class 2 Application with the court on 8 September 2017 pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). The orders originally sought were the immediate pruning of the respondents' trees to ensure that they did not, and will not in the future, overhang the applicants' property. Other orders were sought to indemnify the applicants and for the respondents to pay certain costs. These orders are beyond the jurisdiction of a Commissioner of the Land and Environment Court.
In response to the applicants' concerns raised in the Class 2 application, the respondents had the trees pruned away from the common boundary. Only a very small portion of the canopy of Tree 1 overhangs a limited part of the rear of the applicants' backyard.
In the light of this pruning, on 19 October 2017 the applicants filed a Notice of Motion seeking to amend the application and to modify the orders. The motion was granted by the Assistant Registrar.
The modified orders sought by the applicants are the further pruning or removal of the trees so as to prevent any possible future damage or injury. The applicants remain very concerned for the safety of their property and family. The applicants submit that the trees are fast growing and problems may arise in the near future necessitating further court action. They are also seeking reimbursement of the court filing fee and other costs as well as the repair, by the respondents, of the damaged fence. [Statements in the application claim form relating to the branch that damaged the roof of the applicants' dwelling have been deleted.]
As stated previously Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.
In accordance with s 10(1)(a) I am satisfied that the applicants have made a reasonable attempt to reach agreement with the respondents. While the respondents have acquiesced to a number of the applicants' concerns the matter has not been fully resolved to the applicants' satisfaction and the matter has proceeded to a final hearing.
In applications under Part 2, 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.
These tests must be applied to each of the trees the subject of the application.
As the applicant is concerned 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/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.
Neither party engaged an arborist to provide expert opinion evidence; therefore the following comments are based on the arboricultural expertise I bring to the court.
The three trees are Eucalyptus pilularis (Blackbutt). They are growing in a small group at the rear of the respondents' property. They are in average health and condition consistent with trees of their maturity, environment and their likely status as forest remnants.
The trees have been recently pruned in a manner generally consistent with reduction pruning under AS4373: 2007 Pruning of Amenity Trees. As previously noted, very little canopy overhangs the applicants' property. There is a very small amount of dead wood in the canopies closest to the applicants' property and, in my view, it poses very little risk of causing damage or injury in the foreseeable future.
During the hearing the second applicant raised concerns about the leaning of one of the trees, T1, towards her property. She is concerned not only about the damage it may do if it fell but also injury it may cause to small children playing in the backyard. I saw no signs to suggest any instability of that or any of the other trees such that whole tree failure is likely; the lean is probably a result of the tree's proximity to other trees and its growth towards the light. I was informed by the first respondent that the trees had withstood very strong winds in 2015 without any failures.
The fence is a low metal fence constructed from fence panels salvaged from a family member's property by the respondents in 2004 in order to keep in a small dog. The panels are supported by, and secured to, star pickets. All of the fences on the respondents' boundaries are modest wire fences but which provide an adequate barrier.
Photographs included in the application claim form show the branch that fell from T1 on the ground - partly on the respondents' property and mostly on the applicants' property. The branch that fell without warning on a calm day was stated to be a long reaching branch. Because of the recent pruning, the point from which it fell could not be determined. This failure was possibly an example of "summer branch drop" - an unpredictable but relatively uncommon failure of branches on calm days. There is no evidence of any previous failures on T1 or any of the other trees and it may have been a single event however, absent any evidence of either the base of the branch or of the area from which it fell, this hypothesis cannot be confirmed.
There is evidence of where the branch damaged one small section of one of the panels. The respondents have since inserted and secured another wire panel in behind the damaged section and have thus repaired it to a condition similar to the condition of the fence when the applicants purchased their property.
In putting the applicants' case at its highest, I accept that the branch that fell from T1 in 2016 damaged property in which the applicants have an interest, that is, the dividing fence. Therefore I am satisfied that one element of s 10(2) is met for T1 and the Court's jurisdiction to consider what, if any, orders should be made pursuant to s 9 of the Trees Act.
In regards to Trees T2 and T3, I am not satisfied that there is any evidence that they have caused, are causing, or could in the near future cause, any damage to property on the applicants' land or could cause injury to any person. Therefore as s 10(2) is not met for these trees, the application with respect to T2 and T3 is dismissed.
The applicants have sought to engage s 13A of the Dividing Fences Act 1991 however no details are provided in the application claim form as to the extent or nature of any replacement fence. During the hearing it transpired that the applicants are seeking the replacement of the metal fence with a timber fence. The respondents' solicitor submits that the respondents built and maintained the fence at their own cost and find it functional and fit for purpose.
Having found s 10(2)(a) met for T1, and before determining what orders should be made, I must consider relevant matters under s 12 of the Trees Act. The tree is wholly located on the respondents' property. The tree provides amenity to the respondents' property and to the wider public as it is part of the natural canopy of the area that contributes to the character of the landscape. As a probable remnant it will contribute to the local ecosystem and to biodiversity. The trees were clearly present and well-established when the applicants purchased their property about two years ago. Significantly, the respondents have taken action and have had the trees reduced to minimise any overhanging and the risk of further limb failures. They have also repaired the fence as sought in the modified orders.
Having considered the evidence and taken into account the actions of the respondents in regards to the orders sought by the applicants, the respondents have to all intents and purposes carried out what was requested of them; that is, the trees have been pruned and the fence repaired. The applicants have not provided any evidence to substantiate their fears. I am not satisfied on the evidence that any additional pruning, or indeed removal, of T1 is needed or reasonable. Similarly with the fence, it is a modest but functional fence constructed and repaired by the respondents and I see no reason which would warrant an order of the court for its replacement with another fence. Should the applicants wish to construct a more solid fence on their land that is a matter for them to investigate but it is not an order I intend to make.
As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can 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.
Given my findings, the Orders of the Court are:
1. The application is dismissed.
Judy Fakes
Acting Commissioner of the Court
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Decision last updated: 07 December 2017