Tuft v Piddington

CASES CITED: Yang v Scerri [2007] NSWLEC 592

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS Second respondent in person

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 COMMISSIONERS: Located in the rear yard of 48 Bryant St, Tighes Hill is a substantial Caffir Plum (Harperphyllum caffrum). The tree has two major trunks in its structure effectively forming co-dominant leaders. The tree flowers during spring and summer and produces numerous small fruits.

2 The tree is owned by Mr and Ms Piddington who do not intend to reside at the property in the near future but hope to return to Newcastle when Mr Piddington is able to obtain appropriate employment in Newcastle (as he is presently temporarily located in Sydney). The Piddingtons intend to make the property where the tree is located their permanent home in Newcastle.

3 Ms Tuft asks that the Court order the removal of the tree for two reasons. These are risks of injury to her and what she considers to be anticipated future damage to her property.

4 As a consequence, there are three matters concerning the tests set by s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 which we must consider. We must be satisfied that at least one of these tests is met before we have jurisdiction to consider whether or not, as a matter of discretion, we should order at any interference with or removal of the tree.

5 The first basis upon which Ms Tuft seeks the order is as a consequence of an allergic reaction she has to the pollen which comes from the tree.

6 In this regard, Ms Tuft provided two medical certificates. The first is a certificate from her general practitioner which is inconclusive about the cause of her allergy. However, the second is a certificate from Dr Charles Finlay-Jones, an ear nose and throat specialist, who has certified that Ms Tuft suffers from severe allergic bronchitis and rhinitis and [indecipherable] allergy to Caffir Plum tree which is a native of Africa. The tree which is the subject of Ms Tuft's application, as earlier noted, is a Caffir Plum.

7 For the test under section 10(2)(b) of the Act to be satisfied - that is that the tree is a likely cause of injury to any person, we need to be satisfied not merely that Ms Tuft suffers from an allergic reaction to this type of tree about which Dr Finlay-Jones as given a certificate but that that allergy falls within the scope of injury as used in the Act.

8 We note that s 3 of the Act does not include any definition of the term injury. As a consequence we have turned to other statutory definitions of injury, in New South Wales legislation, see whether they provide useful guidance on we should include her allergic reaction as being appropriate to be considered as an injury for the purpose of this Act.

9 We note that, in the Workplace Injury Management and Workers Compensation Act 1998, injury includes, amongst other things, the aggravation, acceleration, exacerbation or deterioration of any disease. The Workers Compensation Act 1987 includes a similar provision.

10 Finally, the Pesticides Act 1999 defines an injury to person as including any kind of physical or psychological injury, whether temporary or permanent, including conditions such as nausea, allergic reaction, dizziness, headaches, stress, and running nose or eyes.

11 We are of the view that, in the circumstances, we should hold for the purposes of the Trees (Disputes Between Neighbours) Act 2006 that injury encompasses allergic reactions, including one of the nature for which Dr Dr Finlay-Jones has given a certificate. We are therefore satisfied that, on this particular aspect of Ms Tuft's application, pursuant to s 10(2)(b) we have jurisdiction to consider her application.

12 Having reached that conclusion, there are a number of matters which we need to take into account on the question of discretion - matters that have been raised in Ms Tuft's statement and evidence and in evidence by the owners of the tree.

13 Before turning to that evidence, after dealing with this jurisdictional question, we should note that, in the Piddingtons' letter to the Court dated 14 May 2008, mention is made of the Piddingtons having consulted Mr Ian Mckenzie, an arborist who practices in Newcastle and who is a councillor on Newcastle City Council.

14 We record this because Mr McKenzie is known to both of us. As we disclosed to the parties at the commencement of these proceedings, we have both recently had conversations with Mr McKenzie at a recent conference of the Australia Chapter of the International Society of Arborists. He made no mention to either of us of this case or his involvement in it. Ms Tuft was asked and raised no objection to us continuing to hear and determine her application.

15 We have indicated, under the circumstances, that we did not propose to have regard to the comment attributed to Mr McKenzie in the Piddingtons' letter to the Court - a letter which was written after the conference we attended had taken place in Brisbane. We note that Mr McKenzie has attended this hearing as an observer but has not sought to give evidence in the proceedings.

16 We turn of matters which are relevant to the exercise of our discretion with respect to the tree. There are a number of matters which we are required to consider as set out in s 12 of the Act. The first relevant one, in s 12(c), is whether the tree has, inter alia, any social value. In this case, Ms Piddington has given evidence that it provides amenity and shade for her family and that they regularly enjoy using that amenity and shade during summer months.

17 The second, in s 12(d), is any contribution that the tree makes to the local ecosystem and biodiversity. Ms Tuft, in her written material, stated that the tree provides the occasional habitat for possums and birds and she has confirmed in her oral evidence to us that this is the case. Ms Piddington has also confirmed that the tree provides habitat for a variety of birds.

18 The next matter which we are required to take into account is contained in s 12(i)(i), anything, other than the tree, that has contributed or is contributing to any such likelihood, including any such act or omission by the applicant…

19 There are two matters to which we consider we should have regard concerning this provision.

20 The first is that, although unsuccessful, Ms Tuft has been seeking to sell her house for some time and has only removed the house from the market in the last fortnight or so. If she sells, her problem will be resolved.

21 The second is a statement which is contained in her own application concerning the history of her asthma. A particular problem has been occasioned for her as the result of the excessive flowering in the recent season. She states that my previous residence at Cessnock had one of these trees. I was diagnosed with asthma at that time 1988-89 and I recall when the tree was removed my asthma improved.

22 Thus, she should have been aware of this tree's problem for her when she bought her property.

23 We observe, in this regard, Ms Tuft has had asthma of the nature which is the subject of Dr Finlay-Jones' certificate for at least 20 years.

24 We observe that the tree, which is a very substantial one, was present at the time she purchased her property some eight or nine years ago. We also take account of the fact that she that has attempted (and has been, until very recently, continuing to attempt to sell her property).

25 Against the impact on her, we have considered the positives of the tree of its contribution to the ecosystem and its social value to the owners of the property coupled with the observations we make about her asthamatic history and desire to sell her property. As a consequence, as a matter of discretion, on balance, we are not prepared to order the removal of or interference with the tree on the basis of Ms Tuft's asthmatic or bronchial reaction to it.

26 Second, Ms Tuft raises a broader question of the likely failure of the tree and its consequent causing injury to persons (who might be persons in the Piddingtons' house, in her own house or in the public domain - being the footpath which runs east-west along the side of the Paddingtons' house in the vicinity of the tree).

27 We have carefully examined the structure of the tree. At the point of the junction of the two main leaders, there is a degree of included bark. There is a very minor element of reaction wood present at this location. The tree's leaders are located so that the one closest to Ms Tuft's residence is, essentially, growing vertically. The other leader is at an angle (and at an angle towards the public footpath).

28 We are satisfied that, if there were to be a failure at the point of junction of these leaders, it is unlikely that that failure would be failure of the vertical leader in the direction of Ms Tuft's house. We are not satisfied that there is any basis pursuant to section 10(2)(b) of the Act to consider that there is any likelihood of injury to any inhabitant of her property. Further, we are satisfied from our examination of the tree - the shape of the canopy and the direction of growth of this leader - is there no likelihood of it failing in the direction of the Piddingtons' residence or the public domain.

29 We are satisfied with respect to the leader that is in the direction of the public domain that, if it were to fail, it would fall, in part, in the public domain and, in part, in the Paddingtons' yard. We have carefully considered the point of attachment to the other leader, the extent of the included bark and the absence of any significant cracking in what is a very substantial specimen of this type of tree.

30 Although there is a risk of injury, if the tree were to fail, we are satisfied that the likelihood of that failure is so remote, under circumstances where we have no evidence, as set out above, which would lead us to conclude that it was at all possible that this would occur, that there is no likely risk of injury to any person. Therefore, on that basis, we also decline to order any interference with or removal of the tree.

31 The final matter that Ms Tuft raises is the risk of damage to her property. Such damage to her property would only be occasioned if the tree were to fail in the direction of her property. For the reasons which we have given with respect to the risk of injury to residents in that property, we are also of the view that there is no likelihood of risk of damage to her property. Indeed, the test in section 10(2)(a) concerning property damage is more restrictive - in that such risk must not only be likely but must be likely in the near future. For reasons given, we are satisfied that there is no significant possibility whatsoever of any likely risk within the next 12 months or so of damage to her property - that being the time period discussed in Yang v Scerri [2007] NSWLEC 592 and being a time period which we consider appropriate to adopt and apply in these circumstances.

32 The consequence all the foregoing is that the application is dismissed.

Tim Moore Peter Thyer Commissioner of the Court Acting Commissioner of the Court

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