Tree disputes - A second bite at the cherry? Change in circumstances can change Court's decision

As a general rule, a court will not hear a dispute between two people if the substance of that dispute has been sufficiently dealt with in an earlier hearing. This rule kicks in if the earlier hearing involves the same people and a formal judgment has already been made. In legal terms, this rule is known as "res judicata". The aim of the rule is to promote certainty and finality in respect of lawsuits.

In the recent Land and Environment Court's decision in Hinde v Anderson and Anor [2009] NSWLEC 1148, the effect of the rule on tree dispute cases was put to the test.

The facts of the case

The Andersons have a Chinese Elm on their Mosman property.  During periods of strong winds the tree has lost branches which often landed on Mrs Hinde's property and, over the years, some of them had caused damage to the roof of her home.

In accordance with the Trees (Disputes between Neighbours) Act 2006, Mrs Hinde applied in 2007 to the Land and Environment Court for orders rectifying the issues.  In the 2007 hearing, the Court found that the tree made a contribution to the natural landscape as well as the scenic value of the locality and the tree was a healthy specimen with no evidence of included bark or failure of live branches.

Based on these findings, the Court in the 2007 hearing ordered that the canopy of the Chinese Elm be reduced and some clearance from Mrs. Hinde's property was to be kept. The Court also ordered that any deadwood which might pose a risk should be removed and that was to be done annually.

In accordance with the Court's order, the first pruning took place in March 2008. The next pruning was due to take place in March 2009.

In January 2009, however, Mrs. Hinde claimed that a further branch broke from the tree and landed on her roof. The fallen branch damaged the roof's ridge-capping. In February 2009, Mrs. Hinde lodged a further application with the Land and Environmental Court based on the provisions of the Trees Act.  Mrs. Hinde sought further orders concerning the Chinese Elm and a compensation of $100, being the excess of her insurance policy.

The Andersons applied to the Court for having this second application dismissed, based on the rule of res judicata. The Andersons' application was heard by Senior Commissioner Moore and Acting Commissioner Thyer. In the course of the hearing, Senior Counsel for the Andersons submitted also that Mrs. Hinde's second application should be dismissed because of s22 of the Land and Environment Court Act 1979, implying that all controversy between the Andersons and Mrs. Hinde should have been completely and finally determined in the 2007 hearing.

On the other hand, Senior Counsel for Mrs. Hinde submitted, amongst other things, that Justice Biscoe's comments in Agius v Forrester [2008] NSWLEC 256 should be taken into account by the Court. In summary, Justice Biscoe said in Agius that the presence of new circumstances, if supported by evidence, could justify the making of a further tree application, but not an appeal against the original commissioners' decision.

The Commissioners' Decision

Senior Commissioner Moore and Acting Commissioner Thyer followed Justice Biscoe's earlier decision.

The Commissioners also commented that:-

• As an application under the Trees Act was the only action which a person in Mrs. Hinde's position could take, it would be wrong to say that the Act would not allow that person to prevent risk of injury unless there was a change of ownership of the tree or of the property affected.

• Despite s22 of the Court Act, the changes in circumstances alleged by Mrs. Hinde meant that those changes were and could not have been in controversy between her and the Andersons back in the 2007 hearing. As a result, s22 of the Court Act could not serve as a barrier to Mrs. Hinde's second application.

• Whether any changes in circumstances had actually occurred would be a question to be determined at the second hearing. If no or only minimal changes were found to have happened, the second application might be dismissed at that stage.

The Andersons' application was therefore turned down by the Court.

Implications

As a result, the owner or occupier of a property may have a second bite at the cherry if:

• There has been a change of circumstances (eg  further damage has been caused; the health of the tree has deteriorated).

• However, the change cannot be so small that it is negligible. In particular, the change must trigger the jurisdiction the Court set out in s10 of the Trees Act, that is:

• The tree has caused, is causing or is likely to cause damage to property within the next 12 months; or,

• The tree is likely to cause injury to any person;

• The second application may concern a different part of the tree which has not been dealt with in the first application. The two tests set out in s10 of the Trees Act will also apply here.