Land and Environment Court New South Wales

• Medium Neutral Citation: Purnell & anor v Hodge & anor; Steiner & anor v Hodge & anor [2012] NSWLEC 1362
• Hearing dates: 22 October 2012
• Decision date: 25 October 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

20800 of 2012: Application dismissed

20824 of 2012: Application dismissed

• Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; Hedge - obstruction of sunlight; not a hedge for the purpose of the Act; insufficient evidence of actual or potential damage
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Yang v Scerri [2007] NSWLEC 592; Ghazal v Vella (No. 2) [2011] NSWLEC 1340; Barker v Kyriakides [2007] NSWLEC 292; Robson v Leischke [2008] NSWLEC 152; Hendry & anor v Olsson & anor [2010] NSWLEC 1302; Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122; Johnson v Angus [2012] NSWLEC 192
• Category: Principal judgment
• Parties: Applicants: G & C Purnell (20800 of 2012); R. Steiner & T Taylor (20824 of 2012); Respondents: S & K Hodge (both matters)
• Representation: Applicant: 20800 of 2012 Mr G Purnell (litigant in person); Applicant: 20824 of 2012) Ms R Steiner and Mr T Taylor (Litigants in person); Respondents: S & K Hodge (Litigants in person)
• File Number(s): 20800 of 2012; 20824 of 2012

Judgment

1 COMMISSIONER: These are two separate applications from the owners of two properties in Port Macquarie that adjoin the respondents' property. Both applications are made under s 7 part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

2 The applicants had proposed to submit a joint application however, amongst other things, s7 of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the land (that is the applicant's land) and similarly, s 14B enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land (that is the applicant's land). Therefore under both Parts of the Act, separate applications must be lodged for individual affected properties.

3 Both applications concern potential damage or injury and obstruction of sunlight to windows.

4 The respondents' property is a long rectangular block with a north-south alignment; the applicants' properties are battle-axe blocks that form part of a more recent subdivision and adjoin the southern section of the eastern boundary of the respondents' property.

5 Both matters were heard concurrently and the hearing was held on site. In addition to the parties, Mr Robert Hanlon, Tree Assessment Officer, Port Macquarie - Hastings Council attended and assisted the Court.

6 For the purposes of this judgment, matter number 12/20800 is referred to as the Purnell property and matter 12/ 20824 is the Steiner/Taylor property.

The trees

7 The diagrams in both applications nominate10 to 11 trees, with details given for 9 to 11 of them. The diagrams also show additional trees on the respondents' property that are not subject to the applications. The applicants stated that they had sought assistance from several arborists but conflicting advice was received in regards to species identification.

8 The hearing commenced with an inspection of the trees on the respondents' property. Clarification was sought as to what trees formed part of the application and which did not as there are many more trees present than nominated.

9 The following table summarises the trees subject to the applications from both parties. Tree 11 is only relevant to the Steiner/Taylor property. At the hearing, some additional trees were allowed to be included in the applications.

Tree No.	Species (confirmed on site) - Common name	Comments
1	China Doll Tree	South-eastern corner; some overhang onto Purnell property
2	Tuckeroo	5-6m from T1; some smaller trees in between
3	Cheese Tree (not Fiddlewood)	Twin-trunked tree in poor condition close to Purnell boundary; 3-4m from T2; smaller trees between
3a	Cheese Tree	Triple-trunked specimen about 1.5-2m from T 3
4	Hakea (not Bottlebrush)	Close to Purnell boundary; small tree; about 2m from T3a
5	Bottlebrush	Small tree some 3-4 m from T4
6	Not pressed
7	Banksia (B. integrifolia)	Relatively close to Steiner/Taylor boundary; about 1.5m from T5
8	Camphor Laurel	A tall, mature tree some 4-5 m from the dividing fence and to the west of a large multi-trunked Hibiscus that is not part of either application
8a	Camphor Laurel (stump)	A stump of an apparently mature tree the roots of which were alleged to have encroached onto the Steiner/Taylor property; the roots were severed. The stump has some small suckers.
9	Camphor Laurel	As for Tree 8; about 4m from T8
10	Fiddlewood	Many metres from T7
11	Banksia ((B. integrifolia)	Abuts the dividing fence at the north-western corner of the Steiner/Taylor property; leaning to the north towards the respondents' property

10 The nominated trees are part of a broad group planting of many species of trees and shrubs generally located on the south- eastern portion of the respondents' property. There are many other trees, ranging in height from 2 to about 20m that are not part of the applicants' claim.

11 According to the respondents, apart from Tree 10, all of the trees nominated by the applicants were present when they purchased their property in 1986.

Part 2 applications

12 The key jurisdictional test in applications made under Part 2 is found in s 10(2) of the Act. This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

13 The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...".

14 As all applicants are concerned about future damage and potential injury, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in these matters. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s and the circumstances of the site apparent at the time of the hearing.

Part 2 - Purnell property

15 The Purnells are seeking orders for the removal of all trees within 5m of their dwelling. Mr Purnell contends that this would be in line with council policy.

16 The Purnells are concerned that roots from the respondents' trees may cause damage to a pebblecrete pathway that runs between the western wall of their dwelling and the dividing fence with the respondents. They are also concerned that trees could fall onto their property in windy or stormy conditions thus potentially causing injury.

17 I was shown a small gap between the western wall of the dwelling and the pathway, and between sections of pathway at the south-western end of the dwelling, where Mr Purnell stated that he had found, and had subsequently cut and poisoned, roots from the respondents' trees. I saw no damage to the dwelling and the paths were in good order in the vicinity of the sections where roots were said to have been found.

18 I was also shown two cracks in sections of the pathway that Mr Purnell thinks may have been caused by roots. One crack was near T2 and the other was located between T1 and T2. I note that the section of pebblecrete in which there are cracks is a long section with no expansion joints.

19 In addition, I was shown an area at the base of the fence near T3 where Mr Purnell had cut and removed a section of root, however, there was no apparent damage that had been caused by that root.

Findings

20 In regards to 'council policy', Mr Hanlon stated that in the Development Control Plan adopted in 2011, council approval is not required for the removal of any tree within 3m of a habitable building if the tree is located on the same property as the habitable building.

21 There is sometimes confusion about the respective roles of the Court and councils in regards to disputes about trees. This is discussed in Ghazal v Vella (No. 2) [2011] NSWLEC 1340. While the Court may have regard to council controls, they must be relevant to the Court's jurisdiction. In applications under Part 2, the fact that a tree may be close to property on the applicant's land matters little unless any element of s 10(2) is satisfied.

22 While there may have been some encroachment by roots, the roots have been removed/ poisoned and there is no evidence that they have caused any damage or are likely to do so in the near future. In regards to the two cracks, there was no evidence to prove that they had been caused by any of the respondents' trees.

23 Similarly, no evidence was adduced as to what branches/ trees may cause injury. The only tree that directly overhangs the Purnell property is T1 and I saw no evidence to suggest that any part of this tree was likely to fail and cause injury.

24 On the evidence before me, I am not satisfied to the level required by s 10(2) that any of the trees the subject of the application have caused, are causing, or are likely in the near future to cause, damage to the Purnell property or injury to any person.

25 Therefore as s 10(2) is not satisfied, the Court cannot make any orders for any intervention with any of the trees that are subject to the application. Therefore this element of the application is dismissed.

26 I note that the applicants in this matter seek compensation for a sum of $1640 that includes the application filing fee, lawyers fees, cleaning of the western wall of their house, two vacuum blowers and gutter guard. In regards to the filing fee and legal costs, Commissioners do not have the jurisdiction to award such costs and a separate Notice of Motion would have to be filed; this would then be heard by a Registrar or Judge of the Court. In regards to the other items, as s 10(2) has not been satisfied, the Court has no jurisdiction to make any orders for compensation and no enquiry into those costs is required.

Part 2 - Steiner/Taylor property

27 The applicants in this matter have not specified what orders they are seeking the Court to make. It is assumed that should the jurisdictional tests be satisfied, s 9 of the Act enables the Court to make any orders it thinks fit to remedy, restrain or prevent damage to property or injury to any person as a consequence of any of the trees the subject of the application.

28 The applicants are concerned that branches falling from trees, especially in windy conditions, could cause damage to their property or injure someone. They state that the guttering and downpipes fill with leaves and that damp conditions create mould - both internally and externally. They are concerned that T11 is growing against the dividing fence and that it could cause the fence to fall over.

29 The application includes photographs taken in 2009 of large woody roots from T8a that had grown onto their property. They removed the roots, and in March 2009, T8a was removed with the applicants contributing 60% of the cost of doing so. The applicants are concerned that as the stump is now suckering, there may be further encroachment by roots. I note that no damage had been caused to the Steiner/Taylor property by those roots but the action was precautionary.

30 In material included in the application the applicants state that in mid 2006 they pruned low overhanging branches away from their property. This involved the hiring of a lift and saw as well as tip fees.

31 Tree 11 is leaning against the timber fence but I saw no damage to the fence that could be specifically attributed to the tree. According to the respondents, the paling fence was erected in 1988. At 24 years old it is showing normal signs of wear and tear. The section of fence against which T 11 is leaning is partly covered by a lean-to shed.

32 When asked, the applicants could not provide me with any evidence of actual damage caused to the downpipes or guttering of their dwelling as a consequence of leaves from the respondents' trees. They stated that there was some internal mould and I was shown mould on the gable end beneath the eaves on the southern end of the house. They stated that leaves had blocked their pool filter but this was not mentioned in their application and on-site it was admitted that the source of the leaves could not be confirmed.

33 In regards to injury, the concern is the potential for branches to fall onto the roof above a bedroom. When asked, the applicants stated that to date, only small twigs or branchlets had fallen onto the roof and no damage or injury had occurred.

Findings

34 In regards to T11, while it is close to the fence, I saw no evidence to suggest that the tree was likely in the near future to cause the failure of the fence or any other damage.

35 In the absence of any evidence, I am not satisfied that leaves have caused any actual damage to the guttering or downpipes of the Steiner/Taylor dwelling.

36 In Robson v Leischke [2008] NSWLEC 152, Preston CJ at paras 168 to 173 discusses 'damage' in general. In this discussion, his Honour specifically noted at [171] that:

171 However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7.

37 Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that:

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.

38 There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [11]-[14], the Principle was extended to include the cleaning of mould and slime.

39 With respect to the roots of T8a, while the Court has jurisdiction over trees that have been removed, there is no evidence that these roots caused any damage and there is no evidence that they are likely to do so in the near future. The suckers on the stump are very weak and the roots have been removed from the applicants' property.

40 On the evidence before me, I am not satisfied that any of the respondents' trees are likely to cause injury to any person, in particular, anyone on the applicants' property.

41 In conclusion I find that s 10(2) has not been satisfied for any elements of the application under Part 2.

42 Ms Steiner and Mr Taylor are seeking orders for compensation of a sum of $1180 for an arborist, hire of a saw and lift, tip fees, and a sum of $400 presumably for the replacement of mouldy cloths and shoes. Notwithstanding the fact that there are no receipts to substantiate this claim, as s 10(2) is not satisfied for any element of the application under Part 2, the Court has no jurisdiction to consider any compensation.

Part 2A applications

43 Both applications seek orders to remedy, restrain or prevent a severe obstruction of sunlight to windows of a dwelling. The Purnell application concerns obstruction of sunlight to bedroom windows and a bathroom skylight all located on the western side of their dwelling. The Steiner/Taylor application concerns obstruction of sunlight to the kitchen, bathroom, bedroom and laundry windows similarly located on the western side of their dwelling.

44 In applications made under Part 2A of the Act, there are a number of jurisdictional tests that must be satisfied before the Court can consider what, if any, orders should be made. The sequence of those tests is discussed in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122. At [43] the Court stated (in part) ..."I consider the making of orders under Part 2A of the Act comes at the end of a path that traverses through a series of gates. Each gate in turn must be passed through in order to get to the final destination of an Order of the Court".

45 The first test or gate is satisfaction of s 14A(1). This states:

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

46 In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). Amongst other things, His Honour finds that the primary purpose of the planting must be to form a hedge and the planting must retain the appearance of a hedge at the time the application is heard. At [38] His Honour states in part that if the plants are planted for another purpose, other than as a hedge, then Part 2A will not apply. In [40] - [41] the relevance of other criteria such as species, proximity and arrangement are discussed.

Findings - both applications

47 During the on-site hearing Mr Hodge, the first respondent, stated that of the trees that are the subjects of both applications, they had only planted one of them, the other trees were in existence when they purchased their property in 1986. As no enquiry can be made of the person who planted the trees as to the purpose of the planting, other criteria must be considered in determining whether the trees form a hedge for the purpose of the Act.

48 With the expertise I bring to the Court, I find that the informal arrangement, wide spacings, variety of species, and range of ages of the trees and shrubs that are the subjects of both applications could not be construed by any casual observer to have been planted so as to form a hedge. The effect is of an eclectic collection of trees and shrubs arranged as an informal group. The table earlier in the judgement indicates the wide range of species and the distances between plants. While the trees may provide a visual screen between the parties' properties, they have not been planted so as to form a hedge in the ordinary English understanding of the word.

49 Therefore, as s 14A(1)(a) is not satisfied, that is, Part 2A does not apply to these trees the Court has no jurisdiction to consider the applications any further.

50 As a consequence, both applications made under Part 2A are dismissed.

Conclusions and orders

51 For the reasons given in this judgement, the Orders of the Court are:

Matter 20800 of 2012

 (1)           The application is dismissed.

 

Matter 20824 of 2012

 (1)           The application is dismissed.

_____________________

J Fakes

Commissioner of the Court

Decision last updated: 18 January 2013