Xu v Seccombe

Land and Environment Court (NSW)|2023-09-26

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

COMMISSIONER: Xiu Yan Xu and Xiabing Xu (the applicants) have applied to the Court seeking orders relating to four trees growing on the neighbouring Chatswood West property of Eileen Seccombe (Eileen Johns) (the respondent). Pursuant to Pt 2, s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), the applicants seek the removal of the four trees. In addition, they seek an order for the respondent to remove a brush-turkey nest and all logs and debris within 30 metres of the common boundary, and a further order to prevent the respondent storing such material near the boundary. They seek an order for the costs of their application as well as $21,622.45 for damages and compensation.
The respondent disputes that her trees have caused, or are likely to cause, damage to the applicants' property.
The hearing took place onsite, allowing the Court to inspect the trees and relevant issues.

Reasonable effort

The respondent submitted that she did not receive any notice of the application and that the applicants did not make any reasonable effort to reach agreement. The applicants demonstrated that their earlier application for mediation included "tree issues". In tree disputes, the bar for a 'reasonable effort' has been set relatively low, compared with other legislation requiring efforts to reach agreement: see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) at [195]. As Ms Nurpuri pointed out, it would be futile to now refuse the application on the basis that the applicants did not give notice or did not make a reasonable effort to reach agreement, given that the parties have made their respective efforts to prepare for the hearing. I find that the applicants have made a reasonable effort to reach agreement.

Damage or injury

The test at s 10(2) of the Trees Act must be applied to each tree separately: before the Court can make an order for any one of the four trees, I must be satisfied that it has caused, is causing, or is likely in the near future to cause damage to the applicants' property, or injury to any person. Applying the principle at [14] in Yang v Scerri [2007] NSWLEC 592, I regard 'the near future' to be a period of approximately 12 months.

Tree 1

Tree 1 is a Loquat (Eriobotrya japonica) near the common boundary. The applicants claim that the tree drops debris and has 'invaded' their air space. Having inspected the tree, I found it to be healthy and structurally sound. There is no evidence before me that that tree has caused, is causing, or is likely in the near future to cause, damage to the applicants' property, or injury to any person. The fact that branches extend beyond a boundary does not give the Court reason for making orders. It follows that I cannot make any orders regarding Tree 1.

Tree 2

Tree 2 is a Sydney Peppermint (Eucalyptus piperita). This large, mature tree is close to the common boundary and overhangs the applicants' property. The applicants claim it has invaded their air space and that its debris has blocked and damaged their gutters. They submitted that it is a source of termites that have damaged their dwelling. The respondent submitted that the tree has caused no damage.
Again, mere property overhang by tree branches does not provide a cause for orders under the jurisdiction of the Trees Act, which is limited to making orders to remedy, restrain or prevent property damage, or to prevent injury (s 9 of the Trees Act). While tree branches will often spread across property boundaries, the common law right to prune trees back to the boundary may be restricted by local tree controls that require a permit for any pruning.
The respondent submitted that she regularly engages an arborist to inspect and prune Tree 2. She has a recent tree report from a qualified arborist, who recommended only some branch pruning and deadwood removal. I observed at the onsite hearing that the arborist's pruning recommendations have been carried out.
The applicants are concerned by the amount of debris that Tree 2 drops on their property, especially on their roof and gutters. I observed leaves and twigs filling their roof gutters. They submitted that they cannot be expected to clean out their gutters. They submitted that debris has caused two downpipes to become detached from the gutters. I saw no sign that debris from the tree has yet damaged gutters or downpipes. I accept that debris from the tree may cause damage if left to lie on the roof and gutters, where it might hasten corrosion. Should damage be likely in the near future, that would not give me reason to make orders. Rather, I find that such damage could be prevented by reasonable property maintenance, as per the principle set down in Barker v Kyriakides [2007] NSWLEC 292 at [20]. Nothing about the situation in these proceedings would lead me away from that principle. As the respondent submitted, the properties are within an 'Environmental Living' zone, where one might expect both the benefits and the maintenance requirements of living amongst trees. I see no reason to interfere with Tree 2 on this element of the application.
The applicant also seeks orders for removing Tree 2 because its debris has been used by a brush-turkey to build its mound, and because the tree might be the source of termites. The applicants provided no evidence of damage caused by the brush-turkey or its nest. They allege termites have damages their dwelling, but they have not identified the source of any termites. Furthermore, damage caused by termites or other animals would not enliven the Court's jurisdiction at s 10(2) of the Trees Act, which requires damage or injury to be caused by the tree: see Robson at [189].
The applicants engaged someone to do some digging alongside her dwelling to locate tree roots, or to carry out 'root-mapping'. Rather than provide an expert report, Ms Xu provided her own summary of the findings. Some woody roots were found near her dwelling, but this is unsurprising given the proximity of Tree 2. Neither the photos provided by the applicants, nor the summary of root-mapping, nor my own observations, show that the tree has damaged the applicants' dwelling or that it is likely to do so in the near future.
I find that Tree 2 has not caused damage to the applicants' property. Damage that may be caused by debris can be prevented by reasonable maintenance. The respondent has carried out regular maintenance on the tree, and I take at face value her intent to continue this maintenance, so I find that the tree is unlikely to cause damage in the near future; nor is it likely to cause injury. No orders will be made for Tree 2.

Tree 3

Tree 3, which is a Swamp Sheoak (Casuarina glauca) extends across the boundary at the back of the applicants' property. Again, its extension across the boundary does not trigger the need for orders. There is no sign that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants' property, or that it is likely to cause injury. The application regarding Tree 3 will also be dismissed.

Tree 4

Tree 4 is a Snow-in-Summer (Melaleuca linariifolia) on the respondent's property toward the front of the applicants' property. Again, there is no evidence that the tree has caused, or is likely in the new future to cause, damage to the applicants' property, or injury to a person. No orders will be made for this tree.

Orders

The Court orders: 1. The application is refused. 2. The exhibits are returned, other than Exhibit A.

Acting Commissioner of the Court 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 November 2023

At a glance

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Judgment (11 paragraphs)

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Cases Cited (4)

Cited By (1)