Williams v Robertson

Land and Environment Court (NSW)|2021-12-14

Judgment

COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by Kevin and June Williams, relating to two trees located in the adjacent neighbouring property.

Background

Mr and Mrs Williams (the applicants) and Ms Robertson and Mr Graham (the respondents), share an east - west boundary at the rear of their respective properties in Mortdale. The respondents' property contains small and medium sized trees which grow in close proximity to this boundary. They have lived at their property since 2001, while the applicants' occupation of their land preceeds this time.
The applicants have raised concerns about two of the respondents' trees growing near the common rear boundary. One is a Eucalyptus punctata (Grey Gum) (tree 1) and the second tree is a Callistemon viminalis (Weeping Bottlebrush) (tree 2).
Mr Williams proposed that orders be made to remove the two trees because they are "causing ongoing damage". He added that the tree 1 was dangerous to him and his family, , that its branches overhanging the roof of his garage are causing damage to this roof, and that the root system of tree 2 is causing structural damage.

The hearing

The hearing was initially conducted on 9 December 2021, via audio-visual means according to the Court's COVID-19 Pandemic Arrangements Policy. Both parties attended and were self - represented.
Mr Williams submitted that tree 1 was about 15 years old and that a branch overhanging his property broke in windy conditions in April 2018, fell onto his garage roof, then bounced "onto the driveway, just missing me". He said that he then wrote to Georges River Council (Council) and reported the incident "on safety grounds". Mr Williams noted that he received a quote of $1100 (NRMA document shows $1064) from his insurance company for roof repair but he did not proceed as his insurance excess was $1000. Instead, Mr Williams advised that he applied silicon to prevent possible leaks.
Within his Tree Dispute Claim Details (Form H), Mr Williams claimed compensation for $1100 for roof repair and $352 for removal of branches from tree 1 by Sydney Arbor Trees on 28 March 2019. He noted that tree 2 was planted on the fence line, was lifting adjacent concrete in his property, and that this damage was likely to increase, and he raised concerns about termite activity in a retaining wall in the respondents' property.
The respondents submitted that there was no evidence of current termite activity, and that Mr Williams had exaggerated the trees' impact, particularly with respect to damage to his concrete. They also say that the incident of 2018 was the only time a branch of any significance had fallen from the tree, and that they subsequently provided Mr Williams with the opportunity to have tree 1 pruned.
The respondents also note that the trees contribute to privacy, particularly for their teenage daughters, and provide a range of environmental services. Mr Williams disputes that the trees provide such benefits to the respondents, or more generally to the environment.
After evidence was submitted by both parties, the hearing was adjourned to a site visit, which was conducted on 14 December 2021. Both Mr Williams and Mr Graham attended the site visit, where the trees were initially inspected from within the respondents' property.
Tree 1 stands approximately 9 metres (m) tall, with a canopy spread of about the same dimension. Its canopy is roughly symmetrical, with some branches extending beyond the common boundary, and growing above part of the applicants' garage. Tree 2 is a small Bottlebrush, about 4 m tall, which has the appearance of a large shrub rather than a tree. This is most likely the result of pruning by Mr Williams, and the respondents advised that they do not object to such pruning of this tree, on the applicants' side. Regardless of this shrub like form, both specimens satisfy the definition of trees under the Trees Act.
From my external inspection of the trunk of tree 1 and the adjacent hardwood retaining wall, I saw no indications of active termites. There were plates of bark on both tree 1's trunk and on the soil surface below, and I observed some beetle borer larvae (borer) activity and remnants, which represented no safety issue. Plates of quite thick bark regularly decorticating is a normal feature of this species, but it is not indicative that "the tree is diseased and (near) the end of its life" as Mr Williams had contended.
Upon inspecting the site from the applicants' property, Mr Williams highlighted branches overhanging the boundary, and areas where leaves and other refuse fell from tree 1 onto his garage roof. He claimed that because he is elderly, this "mess" was difficult for him to remove from the roof, and from its gutters. He advised that the roof and gutters were largely free of debris because his son had recently cleaned it.
Mr Williams took the Court to a small area of concrete paving near the boundary, the purpose of which was unclear, as this concrete did not appear to perform the role of a path. He noted uplift of this concrete, which appeared to be negligible as I struggled to identify such damage, but he claimed that the uplift present was as a result of tree 2, and that it was likely to worsen.

Jurisdictional requirements

With respect to s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
The Court is obliged to consider matters pursuant to s 10 of the Trees Act.
As required by s 10(1)(a), I am satisfied that there has been an attempt by the applicants to reach agreement with the owners of the land on which the trees are situated. Mr Williams provided evidence of multiple written requests for removal of the trees and attempts to organise mediation under the auspices of the Community Justice Network.
The next major test that is posed, by s 10(2) of the Trees Act, is that the Court must be 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.

Garage roof damage

Upon inspecting the site, the damage to the applicants' garage roof appeared to comprise only a minor deformation at one location on a corrugated iron sheet and scratching of the ridge-cap, as described in photographs supplied by the applicants. Neither of these appeared likely to facilitate entry of water and may be considered as cosmetic issues only. Mr Williams postulated that expansion and contraction of the metal around the dent resulting from temperature fluctuations would likely result in tearing of the sheeting, and future ingress of water in the garage. As the small dent appeared gently curved, rather than acutely angular, I am not satisfied that this is likely. The respondents also supplied an email outlining a conversation with Bluescope steel technical department (Attachment F of Exhibit 1), which supports this conclusion.
Notwithstanding this, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 ('Granger') indicates that even relatively minor damage engages the Court's jurisdiction. Therefore, as a consequence of the dent, s 10(2)(a) of the Trees Act is engaged.
Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2), but it can be relevant in determining what orders, if any, should be made.

Dropping debris

The applicants' damage claim also encompasses dropping of leaves, bark and sticks onto the garage roof and into its gutters. Mr Williams appeared to be annoyed by the branches of tree 1 encroaching over his property, and the foliage of tree 2 had been pruned back to near the fence line on the applicants' side.
There is, however, no restriction or remedy available under the Trees Act for trees overhanging neighbouring properties, if they are not also causing damage as defined in the Trees Act.
This issue is addressed at [171] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ('Robson'), where Preston CJ says: "However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."
The respondents noted that this approach is consistent with Council's Tree Management Policy of April 2019, a copy of which they included in their Submissions in response, dated 16 November, 2021 (Exhibit 1).
Further, the Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 ('Barker'), which, at [20], 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, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree."
As a result, the dropping refuse associated with tree 1 is considered to be a minor consideration only, it is not deemed to be damage under the Trees Act (see [24]), and the required maintenance to clear leaves, seeds, flowers and small sticks from the garage roof, its gutters, and the surrounding area is considered to be reasonable. This element of the applicants' claim is thus dismissed and set aside.

Damage to concrete

I am not satisfied that Mr Williams claim with respect to concrete uplift caused by the roots of tree 2 has a reasonable foundation. Though he was convinced that uplift was occurring, to me it was imperceptible. Even if damage to the concrete was occurring, Mr Williams proved no nexus between tree roots and any real or perceived damage to the concrete.
In Stevens v Russell [2016] NSWLEC 1233 at [40], Fakes C notes that "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
The applicants undertook no such excavation that may have shown that any damage, however minor, was occurring as a consequence of the roots of tree 2, so this claim was not substantiated and is also dismissed. Based on this rationale, I am also not satisfied that roots of tree 2 are likely to cause damage in the near future. In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year.
This is consistent with Council's Tree Management Policy, at 2.5: List of works to trees that Council may not grant approval. This states that "Council may not grant approval to tree works such as removing or pruning of trees to:… Reduce causing or likely to cause minor damage to driveways and paths".
Mr Williams also spoke of squeaking noises ostensibly resulting from tree 2 rubbing up against the common fence, but he made no written or verbal claim for damage to the fence. Such squeaking may cause him annoyance or discomfort, but as with leaves, bark, and twigs falling onto his garage roof, there is no remedy for this squeaking unless there is also damage as defined in the Trees Act. I found no damage as a result of tree 2, so this issue is also set aside.

Risk of Injury

The applicants claim that tree 1 presents a genuine risk of injury, from overhanging branches breaking, falling and striking people, and he was particularly worried about the safety of his grandchildren, whom, he says, regularly play in the small passage behind the garage.
"…In regards to injury, the Court must consider the risk posed by a tree in the foreseeable future based on the characteristics of the tree, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing." (McPherson v Lake [2017] NSWLEC 1081('McPherson') [at 10]).
Tree 1 appears to be moderately healthy and stable in the ground. There are no signs around the tree base, such as soil heaving and lifting, or cracks in the soil, which an arborist may interpret as indicative of stability issues.
The trunk base shows no indications of root/crown decay, and the attachments of live branches appear strong and stable. Some wounds are present on tree 1's trunk resulting from borer activity, but overall, tree 1 appears to have a reasonable prognosis, at least in the medium term.
Mr Williams highlighted that one branch fell from the tree in 2018, but this would appear to be the only such branch failure that has occurred during tree 1's life of more than 15 years, given that it is the only such failed branch that he has brought to the Court's attention. Mr Williams also noted that it broke from the tree during windy conditions, and readily available research evidence shows that people are much more likely to remain inside, or under cover on windy days.
While Mr Williams claimed that this branch bounced from the roof onto his driveway and almost hit him, such an outcome is surprising considering the relatively short distance between the tree's overhanging branches and the roof, and that the branch's impact on the metal roof, as indicated by the small dent, was closer to the rear of the garage than the front where the driveway is located.
Contrary to Mr Williams claim that his grandchildren regularly play in the small passage behind the garage, the respondents submitted that this area is very rarely occupied. Even if the grandchildren do frequent the area behind tree 1, if Mr and Mrs Williams have fears related to tree 1, reasonable or otherwise, they have ample alternative mown lawn areas around their house where such play can occur.
Returning to the guidance provided in McPherson with respect to injury, the risk posed by tree 1, based on its characteristics, any history of previous failures, and the circumstances of the site apparent at the time of the hearing can only be viewed as low.
No professional risk assessment was provided by the applicants and there is an absence of evidence to support a finding that the risk of injury is probable or likely. Therefore, the Applicants claim under the Trees Act with respect to injury is also dismissed.
If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons.
Only one element of s 10(2) of the Trees Act need be proved to engage the jurisdiction. Therefore, as the dent in the garage roof resulting from a falling branch has been deemed to engage s 10(2)(a) of the Trees Act, if orders are to be made, the Court must consider relevant discretionary matters in s 12 of the Trees Act.

Discretionary matters - s 12

In making an order, the Court considers relevant matters in s 12 of the Act.

Tree 1 is located in the respondents' property about 1 metre from the common side boundary (s 12(a)), while tree 2 is closely adjacent to the boundary.
With respect to removal or pruning, tree 1 is protected by Council's Tree Management Policy (s 12(b)).
Past pruning of the trees has been minimal and this is appropriate in terms of optimum tree health. Any removal of leaf cover by pruning, or any other means, reduces a tree's capacity to optimise photosynthesis. This reduces the tree's potential carbohydrate supply, which is necessary for a range of essential functions. Pruning should therefore not occur as part of 'normal' maintenance but should be undertaken only when necessary to achieve a required purpose (s 12(b2)).
No pruning is required in this case, though the parties may wish to have some deadwood removed back to branch collars, subject to compliance with AS4373-2007: Pruning of amenity trees. Pruning of these dead branches would not require permission from Council. When orders are made by the Court for the pruning of dead branches, the normal specification only includes branches with a diameter at the collar in excess of 20 mm (s 12(b2)).
The trees contribute significantly to privacy, protection from the sun, to landscaping, and to the amenity and scenic value of the respondents' land (subss 12(b3) and 12(e)).
Because of their flowering and fruiting characteristics, and particularly because the Grey Gum is indigenous to the area, both trees could be expected to provide food and or shelter for local fauna, and thus would contribute to local biodiversity (s 12(d)).
The trees are likely to be providing benefit to soil stability, and to reducing localised water accumulation (s 12(g)).
Section 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. That 'the tree was there first' is considered in this respect. Upon contemplating the location of a garage prior to its construction, it should have been obvious to the applicants that tree 1 was well established, that its canopy would extend over the planned garage footprint, that additional maintenance would be required to ameliorate natural dropping of tree debris, and that it was not unlikely that branches may occasionally fall onto the roof below. In such a scenario, it is unreasonable to expect that the tree be removed or severely pruned, to eliminate or reduce this debris, when the tree predated the installation of the garage.
In Black v Johnson (No 2) [2007] NSWLEC 513 ('Black'), the Court has published a Tree Dispute Principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make (s 12(i)).
An additional consideration under s 12(i) is where applicants become aware of damage being caused to their property, and repairs or takes measures with respect to such damage, without providing the tree owner opportunity to assess the damage or be consulted about the method and cost of repairs or damage response. This failure can be taken into account by the Court when considering whether or not to make orders relating to the damage. In summarising elements from Osborne v Hook [2008] NSWLEC 1231 ('Osborne'), Moore SC and Thyer AC determined (in that case in response to damage to concrete) that, as a matter of discretion, because of the failure of the applicants to give the respondents adequate notice or opportunity for consultation prior to responding to the damage, "we ought not entertain any claim for damages on this occasion" (at [51]). As a result of Mr and Mr Williams having tree 1 pruned in 2018 by Sydney Arbor, without affording the respondents sufficient notice or involvement in financial decisions, (a claim by the respondents that was uncontested by Mr and Mr Williams), I shall take a position consistent with the Commissioners at [51] of Osborne, and no compensation for the cost of these works shall be ordered.
Conclusion

I have examined the tree and the site and have reached the following conclusions: 1. The onus is on the applicant to prove his case by submitting evidence which satisfies the Trees Act. Based on the Court's decision in Granger, where relatively minor damage was found to engage the Court's jurisdiction, even though proven damage in this case only constitutes a relatively insignificant, superficial garage roof dent, s 10(2)(a) of the Trees Act is engaged. 2. No valid evidence was provided to the Court to satisfy the applicants' claims of current or near future damage to concrete paving, nor of the likelihood of risk of injury as a result of the trees, to any extent higher than low, and low risk is considered to be acceptable. 3. The applicants' claim regarding damage to the garage roof or gutters as a result of twigs, leaves, bark, flowers or fruit falling from tree 1 is set aside through the application of the Tree Dispute Principle in Barker. Though disputed by the applicants, both trees provide a range of valuable environmental services. 4. Orders will be made for appropriate repair of the small dent in the garage roof metal sheeting. However, should the applicants wish to proceed with this repair, based on the Tree Dispute Principle published in Black, the cost of such works will be shared equally by the parties, and both the applicants and respondents shall have the opportunity to gain one quotation for the works. Any compensation that the respondents are required to pay to the applicants shall be 50% of the cheaper of each parties' quote. 5. The Respondents shall not be required to pay the claimed compensation of $352 for pruning of tree 1 in 2018, on the basis of insufficient prior notice or right to determination of the terms of such works, a decision consistent to that found in Osborne.

Orders

The Court orders that: 1. Should the applicants wish to proceed with repairs to remedy one small dent on the garage roof that arose in April 2018 as a result of a branch falling from tree 1, the applicants shall inform the respondents of this intention in writing within 30 days of these orders being made. 2. If this letter of intention is sent and received in accordance with Order 1, within 75 days of the date of these orders, each party shall gain one written quotation from a licenced builder or licenced plumber with all appropriate insurances, based on works specified by NRMA insurance in their assessment report dated 4 May 2018 (Exhibit E), and provide it to the other party. 3. To facilitate such quotation, the applicants shall grant access to the respondents' chosen licenced builder or licenced plumber for the purpose of organising such quote, pursuant to not less than 48 hours written notice from the respondents. 4. Within 120 days of the date of these Orders, the works shall be completed using the services of one of the licenced builders or licenced plumbers from whom the quotations were procured. 5. Within 120 days of the date of these Orders, after the works are completed, the applicants shall provide the respondents with a copy of an itemised paid invoice for the works. 6. Upon receipt of the paid invoice in Order 5, within 7 days, the respondents shall reimburse the applicants for a quantum of 50% of the cheapest of the two quotations, by Bank Cheque or EFT, regardless of whether the applicants choose to proceed on the basis of the more expensive quotation. 7. Failure by the applicant to comply with this timetable will void future claims by the applicant for the work specified in Order 2.

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: 07 March 2022

At a glance

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Judgment (11 paragraphs)

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Cases Cited (9)