Smith v Miller [2010] NSWLEC 1063 (22 March 2010)

New South Wales Land and Environment Court

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Smith v Miller [2010] NSWLEC 1063 (22 March 2010)

Last Updated: 25 March 2010

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Smith v Miller [2010] NSWLEC 1063

PARTIES:
APPLICANT
Richard and Gail Smith

RESPONDENTS
Ian and Marylyn Miller

FILE NUMBER(S):
20008 of 2010

CATCHWORDS:
TREES (NEIGHBOURS) :- Damage to property
Injury to persons
Appeal to remove tree dismissed

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CASES CITED:
Yang v Scerri [2007] NSWLEC 592
Black v Johnson (no 2) NSWLEC 513
Barker v Kyriakides [2007] NSWLEC 292

CORAM:
Fakes C

DATES OF HEARING:
22/03/10

JUDGMENT DATE:
22 March 2010

EX TEMPORE DATE:
22 March 2010

LEGAL REPRESENTATIVES

APPLICANT
Richard and Gail Smith [litigants in person]

RESPONDENT
Ian and Marylyn Miller [litigants in person]

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

Fakes C

22 March 2010

20008 of 2010 Smith v Miller

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 (the Act) made by Mr and Mrs Smith of 35 White Cedar Drive against the owners of a tree growing at 33 White Cedar Drive. The owners of that property are Mr and Mrs Miller.
   
2. The applicants are seeking the removal of a mature Eucalyptus saligna (Sydney Blue Gum) as they contend that the tree has caused, and could continue to cause, damage to their property and is a risk of injury to persons.
   
3. The damage said to have been caused by the tree is the displacement, off vertical alignment by about 30mm, of one rounded support post on the north-western corner of a treated pine log retaining wall. This post was viewed from an easement at the rear of the properties. The applicants contend that the tree will continue to grow and will cause ongoing damage to the retaining wall. They also contend that dead wood falling from the tree onto a practice cricket net, built below the tree, could cause injury. The applicants stated at the on-site hearing that someone sustained a sprained ankle after tripping on a piece of dead wood when playing cricket. However, this incident is not mentioned in the supplementary form ‘Risk of Injury to People’ in the application and there is no medical evidence to support this.
   
4. The tree, as stated, is a mature Sydney Blue Gum. It is growing in the far south-western corner of the respondents’ property. The respondents purchased their property in 1984 and believe that the house was built in the early to mid 1970s. They stated that the tree was quite large and well-established when they moved in. There are two other Sydney Blue Gums along the rear of the respondents’ property on either side of their back fence. Given the linear arrangement of the trees, they may have been planted however they are a locally indigenous species and may be remnants or self-seeded.
   
5. The tree was inspected from both properties and from a wide easement at the rear of both properties. Binoculars were used to view the upper parts of the canopy and for a closer view of branch attachments.
   
6. The tree is healthy with less than 2% dead wood. What limited dead wood was seen was of small diameter and located at the ends of branches. This is normal for eucalypts. There was some evidence of past pruning. This was said to have been said to have been undertaken by an arborist on behalf of the respondents in November 2008 in response to advice from Mr Diversi, Baulkham Hills Shire Council’s Tree Management Officer. Mr Smith said that the pruning was carried out in response to his request to the council for the removal of the tree.
   
7. There is no evidence of any obvious structural defects in the tree or of any failures of live branches. The base of the tree is within 100mm of the retaining wall, at its closest, and about 200mm, at its closest, from the top rail of the fence.
   
8. The Smiths have owned their property since 1994. In 2002 they constructed a cricket net in the rear north-west corner of their property. This necessitated the filling and levelling of the land and its retention with the treated pine retaining wall. Prior to this, the land sloped gradually upwards from the Miller property to that of the Smiths. The previous dividing fence was a timber fence built on natural ground level. At its highest, the retaining wall is approximately 700-800mm high, and at the time of its construction, was permitted without development consent. The horizontal pine members are supported by vertical timber ‘rounds’. A timber fence has been constructed on top of the retaining wall.
   
9. The wall appears to have been built on top of the root buttresses however, the applicants contend that that the tree has grown considerably since the retaining wall was installed. This is disputed by the respondents who tendered photographs of the tree in 2002 and again in 2010. Mr Smith showed marked up versions of the photographs to support his contentions. In my view, the angle/distance from which the photographs were taken is not the same so the value of these photos is limited.
   
10. With respect to the cricket net, according to Mr Smith it was professionally constructed. According to Mr Smith it is built on fill consisting of drained and compacted road base and aggregate topped with a concrete slab and artificial turf. There is no masonry side support; side support is provided entirely by the timber retaining wall. The wicket end of the nets, closest to the tree, is enclosed at the rear, sides and top with wire mesh supported by a metal frame. Some dead wood was caught on the roof area.
    
11. Under s 10(2), of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of injury to any person. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is appropriate here, puts the near future as being a period of 12 months from the date of the determination. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay.
    
12. The Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are:

(a) The tree is wholly located on the respondents’ property.

(d) The tree, as a locally indigenous species, will make a contribution to biodiversity and to the local ecosystem.

(e) The tree makes a contribution to the scenic value of the land on which it is located and to the locality.

(f) The tree has value to public amenity as it forms part of the canopy at the rear of the properties along the easement that forms a buffer between the residential areas and an industrial complex. This canopy contributes to the landscape character.

(h)&(i) Actions taken by the parties. The respondents have had the tree pruned of dead wood. The applicants elected to construct the cricket net beneath the tree.

13. In a tree dispute principle published in Black v Johnson (no 2) NSWLEC 513, and available on the Court’s website, the issue of ‘the tree was there first’ is considered. Whilst not entirely applicable in this situation as the principle is more relevant in terms of who should pay for, or carry out works, should they be required, there is an element of the principle that is relevant. The last paragraph of the principle states:

Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.

14. In essence, the question in that principle considers whether there was an opportunity to locate a structure elsewhere on the land. In this matter, the Smith’s chose to place the nets under a substantial and well-established tree. They said that they did this so they could ‘get their cricket balls back’. Given the landscaping that was undertaken and the size and configuration of the applicants’ back yard, there would appear to have been ample room to locate the nets on the other side of the block where there are no neighbouring trees of any size.
    
15. Due to the location of the nets directly under the tree, it is inevitable that some of the material that is naturally shed from the tree lands onto the roof of the nets. Another tree dispute principle published in Barker v Kyriakides [2007] NSWLEC 292 states:

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.

I consider that this principle applies in this case to the clearing of debris dropped from the tree onto the nets.

16. The damage said to have been caused by the tree is the minor displacement of one vertical post. This appears to be asserted partly on the advice of Mr S Hood, the contractor who installed the retaining wall and fence. In an email tendered by the applicants, Mr Hood states:
    

‘I believe without doubt, the structural integrity of the wall is being compromised by extensive root growth of the Eucalyptus tree growing along side and almost touching the retaining wall. In order to avoid extensive reconstruction work, first and foremost the tree needs to be removed and a steel/concrete support post needs to be put in place.’

17. This is unsubstantiated opinion. The applicants were unable to show me any roots. It is noted that in these matters, the onus is on the applicant to prove the nexus between the alleged damage and the tree. Mere proximity is not proof.
    
18. After viewing the tree, the retaining wall and the nets, I make the following conclusions. The displacement of the vertical post is minor and there is no evidence to link its displacement with the tree. Apart from an alleged sprain, the tree has caused no injury. At the on-site hearing, there was almost no deadwood in the tree and what was there was of a size unlikely to cause injury to any person should it fail. There was debate between the parties as to how often the nets are now used and, at best, it seems occasional. The potential target area has a considerable degree of protection afforded by the nets themselves.
    
19. Mr Smith remained concerned about the future size of the tree and its impact on the nets. The guidance interpretation on the meaning of “the near future” as given in Yang v Scerri [2007] NSWLEC 592 has been covered elsewhere in this judgement. There is no evidence to suggest that this tree will cause damage to the retaining wall or fence in that time.
    
20. As none of the tests under s 10(2) are satisfied, the application to remove the tree is dismissed.
    

___________________________________
J Fakes
Commissioner of the Court