Willis v Johnson

Framework for this decision

1. The Court may only make orders under Pt 2 of the Trees Act if satisfied that the applicant has made a reasonable effort to reach agreement with the tree's owner (s 10(1)(a) of the Trees Act).
2. Then, at s 10(2) of the Trees Act, the Court may only make orders if satisfied that the subject tree 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. The tree must be situated on land adjoining the applicant's land (s 7). Before making any orders, such as those set out at s 9 of the Trees Act, the Court must also consider the matters at s 12.

The applicant made reasonable effort

1. The applicant has spoken with, texted, and written to the respondent. I am satisfied his efforts were reasonable.

Reasons for seeking orders

1. The application includes several reasons for the orders sought. They are:

• the health risk arising from the excessive amount of faeces from brush turkeys that roost at night in the tree;
• the shading of the applicant's garden caused by the tree, resulting in mould growing on their dwelling, downpipes, and ground;
• debris from the tree blocking the applicant's gutters and downpipes; and
• the risk of fire.

The tree

1. The tree is a Eucalyptus punctata (Grey Gum) ('the tree'), an indigenous species that forms part of the local ecological community. Its broad crown spreads over the Willis' back yard to their dwelling. Ms Johnson obtained verbal advice from an arborist, who told her the tree was healthy and without structural defects. Ms Johnson applied to Blue Mountains City Council ('BMCC') to remove the tree. BMCC refused consent to remove the tree, finding it healthy and without structural defects. BMCC gave permission to remove the lowest branch over the Willis' property.

Has the tree caused damage?

1. The Willises submitted that debris from the tree settles on their roof, blocks their gutters and downpipes, and covers their garden. They say this has damaged their roof, gutters and downpipes.
2. In Barker v Kyriakides [2007] NSWLEC 292, Moore C (as his Honour then was), Hussey C and Fakes AC established the following principle at [20]: "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."
3. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302, Moore SC and Galwey AC extended that principle at [14]: "…for the same reasons of having the benefit, environmental and aesthetic, of trees in an urban area the responsibility for ordinary maintenance of a property should extend to the cleaning of such surfaces as paving and paths and the like."
4. There is nothing about this grey gum or its surrounds that would lead me away from the above principle. The tree sheds the usual amount of debris. It grows in an urban environment. In fact, the bushland nature of the neighbourhood perhaps heightens the expectation that some maintenance will be required as a result of living in this vegetated environment.
5. For this reason, no orders will be made on these elements of the application, being damage that might result from debris, and mould that might result from shading.

Is the tree likely to cause injury?

1. The Willises filed photos and videos that clearly show the amount of brush turkey faeces within their property. Through the nature of their submissions, it was clear that this issue worries them above all others. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, Chief Justice Preston wrote at [189]: "189 Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes 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. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's property: Dooley v Newell [2007] NSWLEC 715 (23 October 2007) (Moore C, Thyer AC) at [22]-[23]."
2. It is clear from his Honour's words that the Trees Act does not provide a means for remedying the applicant's brush turkey issue or preventing its continuation.

Fire

1. The risk of damage or injury from fire, exacerbated by nearby trees, has been raised in several applications to the Court under Pt 2 of the Trees Act. Ms Johnson's grey gum is unlikely to be the origin of a fire, but may well catch alight during a bushfire. The Trees Act enables orders to be made to prevent damage caused by trees, but not by fires. It is possible that, should the grey gum catch alight, part of it may fall and damage the applicant's property. However, there is nothing to suggest, here more than elsewhere, that such an event is likely within the near future, a period I regard as 12 months following the principle established at [14] in Yang v Scerri [2007] NSWLEC 592. Fakes C gave a more erudite discussion of this issue in Lyons v Maybaum [2014] NSWLEC 1055 [30]-[39].

Conclusion

1. The applicant explained clearly to the Court the issues facing them as a result of brush turkeys roosting in the neighbouring tree. They have large amounts of the birds' faeces on their property, potentially giving rise to health risks. The death of their family dog was, according to their vet, associated with turkey faeces. The Willises obtained a 'Licence to Harm Protected Animals' from the NSW National Parks & Wildlife Service (NPWS), allowing them to scare off the birds via hosing them, but this was unsuccessful. A follow-up letter from the NPWS informed them that further attempts to shift the birds would not be practical, leading them to begin these proceedings. Having explored the remedies available to them under the Trees Act, I can find none. The Court is unable to order interference with the tree or compensation for damage.
2. BMCC has provided consent to remove the lowest branch above the Willis' property. I have found no jurisdiction to order any pruning, but it may be that the parties can, between themselves, negotiate an outcome for which consent has been granted. I also note that Blue Mountains Development Control Plan 2015 at C5.8 "Controls" clause 1(d) states that consent is not required for: "(d) selective pruning, being only pruning to remove branches back to the nearest branch collar or junction to clear a roof, where trees directly overhang the roof of a dwelling, garage or commercial building, and only if the owner of the land where the centre of the tree originated or where the majority of the tree is growing, is in agreement, and Note: Where the tree owner does not consent to the pruning works, the disagreement remains a civil matter between neighbours. Civil matters may be resolved through mediation services independent of Council or through Trees (Disputes Between Neighbours) Act 2006 proceedings initiated by the aggrieved neighbour." I am not aware if the grey gum directly overhangs the Willis' dwelling roof, but provide this for information only.

Orders

1. Based on the foregoing reasons, the Court orders: 1. The application is refused. 2. The exhibits are returned, except for Exhibit A.

Amendments 01 September 2021 - Amended jurisdiction to Class 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: 01 September 2021