Watson v Herbert [2009] NSWLEC 1357 (14 October 2009)

Last Updated: 28 October 2009

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Watson v Herbert [2009] NSWLEC 1357

PARTIES:
APPLICANT
Andrew & Barbara Watson

RESPONDENT
Colin & Freda Herbert

FILE NUMBER(S):
20507 of 2009

CATCHWORDS:
TREES (NEIGHBOURS) :- removal of three trees and the pruning of two others, damage to property

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006
Electricity Supply Act 2005

CASES CITED:
Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292
Robson v Leischke [2008] NSWLEC 152

CORAM:
Fakes C

DATES OF HEARING:
14 October 2009

EX TEMPORE DATE:
14 October 2009

LEGAL REPRESENTATIVES

APPLICANT
Andrew & Barbara Watson (litigants in person)

RESPONDENT
Colin & Freda Herbert (litigants in person)

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

Fakes C

14 October 2009

20507 of 2009 Andrew & Barbara Watson v Colin & Freda Herbert

JUDGMENT

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 made by Andrew and Barbara Watson of 73 Greendale Road Wallacia against the owners of trees growing along a driveway adjacent to their northern boundary. Colin and Freda Herbert of 71 Greendale Road own the driveway. The respondents’ house is on a ‘battle axe’ block to the rear of the applicants’ property. Mr Herbert was assisted at the on site hearing by his daughter Ms Robyn Herbert. Mr Evan Rowse, Tree Management Officer, represented Penrith City Council.
   
2. The applicants are seeking the removal of three trees and the pruning of two others as they contend that the trees have caused and could continue to cause, damage to their property. Their main concern is with future damage.
   
3. Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that any tree, subject to the application, has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is it likely to cause injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. That said, the tests must be applied to each tree.
   
4. Section 9 of the Act enables the Court to make any orders that it thinks fit to deal with the issues arises from the application. The extent of the orders depends on the seriousness of the damage.
   
5. The trees sought for removal are two Ulmus parvilfolia (Chinese Elm) and one Melaleuca sp. (probably M. bracteata (White Cloud Tree)) growing at the western end of the driveway. The applicants are concerned about the dropping of leaves and other material from these trees into their pool which is located on the other side of the fence about 1.5 metres from the trees. They stated that fine leaves and other debris from the trees blocks the pool filter. They are also concerned about possible future damage by the roots of the trees to the foundations of the pool and to the sewer.
   
6. Since the making of the application and the hearing, Mr Herbert sought and obtained permission from Penrith City Council to remove the Chinese Elms and to prune other small trees. The Elms have been cut to about fence height and the stems and roots poisoned twice. The applicants now have no issue with the Chinese Elms but still seek the removal of the Melaleuca for the reasons outlined in paragraph 5.
   
7. The Melaleuca has two leaders. The leader closest to the applicants’ fence was lopped by them approximately three years ago and there is less than 1 metre of regrowth. The remaining stem is of good health, form and condition and the majority of the canopy of this section overhangs the driveway.
   
8. Mr Herbert’s daughter stated that this tree and most of the other native trees along the driveway were planted in 1983 shortly after the completion of their house in 1982 and well before the construction of the applicants’ house. The Herberts sought advice from the Society for Growing Australian Plants as to the most appropriate plants. Thus the Melaleuca is approximately 26 years old and its growth is typically slow for a species of this species and age.
   
9. Mr Rowse explained that neighbours had limited rights, within the Penrith City Council local government area, to abate nuisance from small overhanging branches where it would normally require the use of hand tools thus implying that larger sections would definitely require Council consent under their Tree Preservation Order. With respect to the Melaleuca, the applicants have availed themselves of this right to the point where only a small percentage of the tree now overhangs their property.
   
10. The debris in the pool was observed as was debris in a small bucket said to be collected from the pool filter. The debris was from a wide range of species other than the Melaleuca including species, such as Eucalypts, growing beyond the respondents’ property. The applicants have a small garden bed between the pool and their northern boundary fence.
    
11. In Barker v Kyriakides [2007] NSWLEC 292 and adopted tree dispute principle, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This is appropriate in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide.
    
12. With respect to potential damage to the foundations of the pool, the applicants were unable to produce any evidence of such damage. In these matters, the onus of proof of damage rests with the applicants.
    
13. The two trees requested for pruning are a Melaleuca sp. (most probably M. decussata (Cross-leaf Honey Myrtle) and a Melaleuca bracteata ‘Revolution Gold’.
    
14. The M. decussata is about 6 m tall and is growing opposite windows on the northern side of the applicants’ house. At the time of the on-site hearing, the foliage of the tree was about a metre from the house. The applicants want this tree pruned to fence height as they contend that it could cause damage to the eaves of their house and is a fire risk. In their application, they also mentioned the blocking of light and the damage to pipes and underground water tanks by roots.
    
15. With respect to the blocking of light, Preston CJ in Robson v Leischke [2008] NSWLEC 152 at paragraph 135 notes, that at this stage, the Trees (Disputes Between Neighbours Act 2006 does not apply to the blocking of light and or views by trees. Therefore no order can be made in relation to pruning for light.
    
16. Similarly with respect to fire. The applicants asserted that they live in a bush fire prone area however, no Fire Risk map was produced. They contend that the Melaleuca decussata is a significant fire risk because of the nature of its growth and its proximity to the house. In this regard, there was nothing to say that the applicants’ property is at any greater risk of fire than other nearby properties. The M. decussata is one of many native trees and shrubs along the applicants’ fence line.
    
17. The M. bracteata ‘Revolution Gold’ is growing at the eastern end of the driveway and overhangs the north-eastern corner of the applicants’ property. The applicants are concerned that its close proximity to their service line could, in windy conditions, damage the line and cause an electrical outage. At this stage, the tree is beyond the 500 mm clearance space generally required for such overhead electrical services.
    
18. Part 5, Division 2, section 48 of the Electricity Supply Act 2005 relates to interference with electricity works by trees. The Dictionary in the Act defines electricity works as any electricity power lines or associated equipment or electricity structures that form part of a transmission or distribution system. This includes service lines. In section 48(1) if the network owner, (in this area Integral Energy), has a reasonable cause to believe that a tree could interfere with its electricity works, in s 48(2)(a) it can serve a written order on the owner/occupier of the premises requiring the owner to trim/ remove the tree. In s 48(3) a notice under subsection (2)(a) in s 48 (3)(a) must specify the work to be carried out, in s 48(3)(b) a reasonable time frame and in s 48(3)(c) must include an undertaking by the network operator to pay the reasonable cost of carrying out the work.
    
19. In s 48(4), subsection (3)(c) does not apply in (a) if, after the electricity works were first laid or installed, an owner or occupier of the premises planted the tree..., in circumstances in which the owner or occupier ought reasonably to have known that destruction of, damage to or interference with the works would result. In this matter, s 48(3)(c) does apply as the trees were planted before the installation of the service line to the applicants’ property. Mr Herbert stated that he was concerned that the electricity distributor ran the applicants’ service line from the northern side of the power pole on the street rather than from the southern side. If the southern side had been used the interference by the tree would be negligible.
    
20. The Court cannot order a third party to take action therefore, in this matter, it is the responsibility of the applicants to bring the clearance of the service line to the attention of the network owner.
    
21. The Court must also consider matters under section 12 of the Act. The relevant clauses in this case are:
    

(a) The trees are wholly located on the respondents’ property.

(d) The trees are mostly native species selected on the advice of the Society for Growing Australian Plants and as such they will contribute to the local ecosystem and to biodiversity.

(e) They contribute to the scenic value of the land on which they are located.

(f) The trees can be seen from the road and therefore have some value to public amenity.

(h)(i) With respect to the leaves in the pool and bucket, there were leaves from many species other than those of the Melaleuca.

(h)(ii) The applicants replaced the sewer pipes when they converted from a septic system to mains sewer. Roots had entered the septic tanks however no identification was undertaken. This matter has now been resolved with the installation of new pipes and the connection to the sewer, therefore the likelihood of future damage to the sewer is remote.

The respondents have taken steps to address some of the concerns of the applicants by seeking and gaining Council approval for the removal and pruning of trees. Mr Herbert has largely undertaken these works himself despite his ill health.

22. Returning to section 10(2) and each of the remaining trees that are subject to this application. Whilst there was some debris from the Melaleuca nearest the pool in the bucket of material said to be taken from the pool filter, there were leaves of many other species. There was no evidence that the roots of that tree have caused, or could, in the near future, cause damage to the pool or pipes. Neither the Melaleuca decussata or the Melaleuca bracteata ‘Revolution Gold’ had caused any damage to the applicants’ property nor was there evidence to suggest that they would do so in the near future.
    
23. Therefore as none of the tests under s 10(2) are satisfied with respect to any of the trees subject to this application, the application, in its entirety, is dismissed. If I am wrong with respect to detritus falling into the pool, as discussed earlier in paragraph 11, as a matter of discretion, no order will be made.
    

___________________

J Fakes

Commissioner of the Court