Trees present a genuine risk of injury if they are in poor health. A tree in poor health may have dead wood in the crown, branches which are overextended, and the trunk exhibiting structural defects.
Tree owners are responsible to keep trees in a healthy condition, to prevent injury to persons (and damage to property), otherwise the Land and Environment Court of NSW will make orders for pruning or removal, and possibly for payment of compensation, at the tree owner’s cost.
Unless the risk of injury is high, the Court will order only pruning. It will not order removal of a locally indigenous species of tree which is a natural feature of the landscape, unless there is no other alternative.
This article examines when the Court will make an order to prevent injury to any person, caused by a tree.
The Law
The Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) gives a neighbour the right to obtain a court order to force the tree owner to prune branches or remove a tree at the cost of the tree owner if the tree has, is, or is likely to cause injury to any person. Compensation is also available.
Part 2 of the Trees Act deals with ‘trees that cause or are likely to cause damage or injury’ –
s 7
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.
s 10 (2)
The Court … must be satisfied that the tree concerned:
(b) is likely to cause injury to any person.
Notes:
‘tree’ is defined as ‘any woody perennial plant’ and includes palms, bamboo, tiger grass/giant clumping grass and vines
A Council permit is not required if a Court orders the pruning or removal of a tree
The Application is made to the Land and Environment Court of NSW
Case Studies
This is a selection of decisions in the Land and Environment Court of NSW:
Likely trunk failure - Davis v Newnan [2021] NSWLEC 1562
A Narrow Leafed Peppermint (Eucalyptus nicholii) was growing in the front yard of the Newnans’ property (the respondents), close to the boundary with the Davis’ property. It was an over-mature tree with sparse foliage, extensive dead wood and large, open cracks in the trunk.
Davis was concerned that “the tree presents a genuine risk of injury, including to his family from exposure to asbestos, should the tree damage the respondents’ fibro dwelling.”
Acting Commissioner Douglas found that:
“The tree exhibits distinctive trunk cracks, associated with structural deterioration, resulting from extensive fungal decay. As such, the tree is prone to catastrophic trunk failure, in the near future.”
“Given the gravitational load on this tree, as a result of its pronounced lean towards the respondents’ dwelling, and the significant trunk weakness which is likely to be increasing relatively quickly, I am satisfied that catastrophic failure of the tree is probable, in the near future. As a large part of the canopy is likely to impact the respondents’ dwelling, I am satisfied that a genuine risk of injury exists, particularly for the respondents. Therefore, s 10(2)(b) is engaged.”
The court inferred that the reason why the Newnans had not removed the tree, despite the obvious danger, was that they were unwilling to incur the cost.
The Court ordered the removal of the tree, at the Newnans’ cost within 21 days. If they failed to do so, Davis could have the tree removed and recover up to $9,394 of the cost of removal from the Newnans.
Exposed coastal trees - Byrnes v Ryan [2021] NSWLEC 1076
A Wild Plum tree (Harpephyllum caffrum), a Queen Palm (Syagrus romanzoffiana) and other palms were located close to the boundary and in the backyard of the Respondent’s (Ryan’s) land. They were neighbouring frontline coastal properties in Forster, on the NSW mid-north coast.
The Applicant (Byrnes) said that she spends a lot of time in the backyard, and that if the tree or palm falls downs, or a branch falls off the tree, there is a high likelihood of injury, or damage, particularly during high winds, which she alleged this coastal property is often subjected to. Her application was for pruning or removal.
Acting Commissioner Douglas dismissed the likelihood of injury for these reasons:
- “The Court considers the risk posed by a tree based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.” (Yang v Scerri [2007] NSWLEC 592)
- Wild plum trees “are generally a long-lived tree, they are normally well anchored in the soil, and are not particularly prone to fungal decay.”
- The Queen Palm (like many palm species) is “particularly resistant to trunk breakage or uprooting in response to strong winds.” It has “no visible faults on its trunk”, has “Tree roots which generally grow laterally away from the trunk base” and its “Stability in the soil is a product of the cumulative shear resistance of this web of roots”.
- “the tree and palms have sufficient soil volume to develop a root system which is adequate for anchorage in the surrounding soil.”
- “There are no apparent signs of structural weakness in the trunk of the tree or palms, nor issues with structural stability. There are no obvious faults at branch junctions, nor a reported history of failures of overhanging branches, nor near misses.”
- “On stormy or windy days, when branches are more likely to break from trees, occupancy outside buildings is usually much lower than normal, and the risk to people, therefore reduces accordingly.”
- “Overall, there is a complete absence of evidence to support a finding that the risk of injury is probable or likely. … the risk posed by this tree, 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, which is an acceptable risk.”
”The claim was dismissed.
The Wild Plum, Queen Palm and other palms causing concern
Brush Turkeys - Willis v Johnson [2021] NSWLEC 1513
Brush turkeys roosted in the neighbour’s tree, a Grey Gum (Eucalyptus punctata) in the Blue Mountains west of Sydney. The tree was healthy without structural defects.
The applicant’s claim was that large amounts of the birds’ faeces fall on their property, potentially giving rise to health risks. The death of their family dog was, according to their vet, associated with brush turkey faeces. The neighbours (the tree owners) were refused a permit to remove the tree by the Blue Mountains City Council.
The applicants (Willis) applied to the Court for an order for removal of the tree.
Acting Commissioner Galwey dismissed the application because no claim can be made for injury caused by the brush turkeys under the Trees Act, for these reasons:
“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].” [Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 per Chief Justice Preston, at paragraph 189].
This article is the fourth in a series of five. The other articles are:
Tree Disputes - The right to remove overhanging branches
Tree Disputes - Tree branches and trunks causing damage
Tree Disputes - Tree roots causing damage
Tree Disputes - High hedges blocking sunlight or a view
Click to access them.