Taylor v Department of Housing

CASES CITED: Robson v Leischke [2008] NSWLEC 152 Barker v Kyriakides [2007] NSWLEC 292

APPLICANT Ms L Taylor, solicitor Taylormade Legal

LEGAL REPRESENTATIVES: RESPONDENT Mr G Dilworth, barrister Instructed by; Mr G Beatty, Department of Housing

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Young Road Lambton against the Department of Housing (the Department) owners of a tree growing on their property that adjoins that of the applicant. 2 The applicant was represented by Ms Taylor, Solicitor and the Department by Mr Dilworth, Barrister. Also present was Mr G Beatty, Team Leader, Northern NSW Housing Services Division, Housing NSW. 3 The applicant is seeking the removal of a tree that overhangs the driveway of their property as they contend that the tree has caused damage to property and could cause injury to any person, particularly in the event of a catastrophic failure of the tree. 4 The applicant is also seeking compensation of a sum of $3500. This is an unsubstantiated estimate of the costs of clearing leaves from garden beds and an inlet to a detention system and for high pressure cleaning of the concrete driveway said to have been stained by the leaves from the tree. [It is noted that the applicant was directed at the preliminary hearing to obtain quotes to substantiate any claim for compensation. Ms Taylor stated that the applicant tried to obtain such quotes but none were forthcoming.] 5 In response to the application, the Department engaged Mr R Kingdom, a consulting arborist, to prepare a report on the tree. That report was dated 3 May 2010 and tendered in evidence. It is on this report that the Department relies. 6 Under s 10(2) of the Act, 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. 7 The tree was inspected from both properties. It is a Eucalyptus scoparia (Wallangarra White Gum) and not a E. elata (River Peppermint) as identified in the arborist's report. It is a healthy tree with no obvious structural defects and a normal quantity of dead wood throughout the canopy. 8 It is one of three trees in a group retained when the housing estate was developed. The tree in question has an asymmetric canopy consistent with growing in close proximity to another tree. This is a normal response by eucalypts. Part of the canopy overhangs the applicant's driveway. 9 I was shown a branch that had fallen from the tree in March 2010 that had been retained for the on-site hearing. The branch was about 2.5 m long but it was unclear whether it had been dead or alive when it fell. There was no clear indication of which part of the canopy it had fallen from. Apart from small material, there was no evidence of other branches that had fallen into the applicant's property. 10 The applicant is concerned that branches falling from the tree may injure children and others who play in the area or who use the driveway. 11 No part of the canopy overhangs the applicant's dwelling or the fence that separates the driveway from the rear garden however, the applicant is concerned that the entire tree may fail in strong winds and fall onto the house. 12 I observed no lifting or mounding of the root plate or any other sign that would lead me to the conclusion that this tree is prone to whole tree failure. The arborist considers the potential for root failure to be low. 13 The issue of leaf drop is raised as a major concern to the applicant. There was an accumulation of leaf litter around the edges of the driveway and on a small garden bed between the driveway and the dividing fence. Ms Taylor informed me that leaves had not been cleared since the end of December 2009 or the beginning of 2010 expressly for the purpose of demonstrating the issue at the hearing. 14 The driveway in question is a common driveway used by two properties. It was constructed in 2004 and towards the centre is an inlet to an on-site detention system. According to the applicant this gets blocked with leaves and does not function as efficiently as it should. This results in a build up of water in the driveway, which is inconvenient, and potentially a safety issue. The applicant also contends that the leaves stain the driveway and that this is unacceptable given the age of the concrete. 15 Returning to s 10 (2) and the issues before the Court. I am not satisfied that staining of a concrete driveway is material damage to the driveway. It is a reasonable expectation that many factors could lead to changes in the colour of such a driveway. 16 Regarding the overhanging branches, in Robson v Leischke [2008] NSWLEC 152 at 56, Preston CJ states that mere encroachment is not damage, and in 169 that damage must be proved. 17 With respect to the accumulation of leaves, the Court has consistently applied the tree dispute principle published in Barker v Kyriakides [2007] NSWLEC 292. In this principle it is considered 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'.

18 It further states that 'The dropping of leaves, flowers, fruits, seeds or small elements of dead wood, by urban trees, will not ordinarily provide the basis for ordering removal of or intervention with a tree'. 19 The applicant's solicitor pressed the contention that the quantity of leaf litter on the site should be considered as exceptional. However, given that the leaves have been left on site for at least 6 months, I do not consider the quantity to be exceptional and no order will be made for any intervention with the tree on the basis of leaf drop. The site, including the inlet, is easily accessible for the purposes of clearing leaves. 20 I am not satisfied that the jurisdictional tests under s 10(2) are met with respect to damage and therefore that element of the application is dismissed. However, if I am wrong on those jurisdictional tests, under the discretional powers enabled by s 9 of the Act, I see no reason to depart from the tree dispute principle in Barker v Kyriakides and no orders will be made for interference with the tree on the basis of it dropping leaves. 21 With respect to injury, the tree has no obvious structural defects and, as already mentioned, there are no signs that would lead me to conclude that either large branches will fall or that the entire tree will fail. 22 The only element of the tree that can be predicted to fall and potentially cause injury to any person is the dead wood throughout the canopy. As people on both properties use the areas under the canopy of this tree, injury to any person could arise from the falling of such material. Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order. 23 Before making an order, the Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are: (a) The tree is wholly located on the respondent's property. (d) The tree will make a contribution to the local ecosystem and to biodiversity. (e) The tree contributes to the amenity and scenic value of the land on which it is growing. It is growing in an area of communal open space. (f) The canopy of this tree (and those of its close neighbours) can be seen from the street. There are very few trees of this size in the vicinity and therefore the tree has intrinsic value to public amenity.

24 Section 9 of the Act enables a degree of discretion in the making of orders. The Court is not obliged to simply say yes or no to the orders sought by the applicant. In this matter, the applicant seeks the removal of the tree. However, given the good health and sound structure of this tree, and the absence of any evidence to support its removal, the orders sought are disproportional to the risk of injury. 25 As dead wood may cause injury, an order will be made for the removal of dead wood. 26 Apart from the removal of dead wood, the arborist's report also recommends the removal of some low branches, and the shortening of other branches that overhang the applicant's driveway. However, there is no evidence to suggest that these branches meet any of the jurisdictional tests under s 10(2) and the Court cannot make an order for their removal or pruning. 27 With respect to the claim for compensation relating to the damage alleged to have been caused by the falling leaves, as I am not satisfied that the damage meets the jurisdictional tests under s 10(2), the compensation claim that flows from that must also fail and that element of the application is dismissed. Again, if I am wrong on the jurisdictional tests, on the discretionary basis of the tree dispute principle in Barker v Kyriakides, no order will be made for compensation. 28 In conclusion and for the foregoing reasons, the Orders of the Court are: 1. The application to remove the tree is dismissed. 2. The application for compensation is dismissed. 3. The respondent is to engage and pay for an AQF level 3 arborist to remove all dead wood greater than or equal to 30 mm in diameter, or if less than 30 mm in diameter any dead wood over 1 m in length, from the tree. 4. The work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. 5. The work is to be completed within 60 days of the date of these orders. 6. If required, the applicant is to provide all reasonable access for the works to be carried out in a safe and efficient manner. 7. The respondent is to give the applicant, and all relevant parties, at least 2 working days notice of the commencement of the works 8. Orders 3, 4, 6 and 7 are to be carried out every two years within 14 days either side of the anniversary of the first pruning.

Judy Fakes Commissioner of the Court

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