Land and Environment Court New South Wales

• Medium Neutral Citation: Hardy v Fisher & anor [2013] NSWLEC 1013
• Hearing dates: 22 January 2013
• Decision date: 22 January 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Hedge: obstruction of sunlight; Damage to property; injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Freeman v Dillon [2012] NSWLEC 1057; Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122; Johnson v Angus [2012] NSWLEC 192; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Wisdom v Payn [2011] NSWLEC 1012; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Ms J Hardy (Applicant); Mr S Fisher (First Respondent); Ms S Tate (Second Respondent)
• Representation: Applicant: Ms J Hardy (Litigant in person); Respondents: Mr S Fisher (Litigant in person)
• File Number(s): 20964 of 2012

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: The applicant in these proceedings owns a residential unit block in North Haven. She has made an application under s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) against the owners of trees growing on an adjoining property to the north.

2 The applicant is concerned that several trees growing relatively close to and overhanging her property could fail (partially or completely) and cause damage to her property or injure anyone on her land. She is also concerned that the trees could catch alight from sparks from a bushfire or be struck by lightning thus potentially causing damage and or injury.

3 The applicant also contends that most of the taller trees on the respondents' property are severely blocking sunlight to windows on the northern side of the unit block.

4 Since the application was made, the respondents have trimmed some of the smaller trees and have offered to thin or remove some of the larger trees if the applicant pays for the work. The applicant does not wish to pay for this work.

The Part 2 application

5 In applications made under Part 2, the key jurisdictional test 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. This must be considered for all of the trees the subject of the application.

6 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...".

7 As the applicant is concerned about future damage, 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 this matter. 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 and features of the site apparent at the time of the hearing.

8 In regards to damage and injury, the applicant is concerned about several trees in particular- a Mango which overhangs the dividing fence and a clothesline on the applicant's property; two Blueberry Ash (one of which is dead); and the two closest Melaleuca quinquenervia (Broad-leafed Paperbark) - one of which slightly overhangs a Macadamia tree on the applicant's property.

9 There are three Mango trees shown on the diagram in the application. The only Mango tree now in contention is a healthy tree about 5-6 m tall and which overhangs the applicant's property by about 1 metre. With the expertise I bring to the Court, I saw no structural defects in the trunk or the branches that would indicate failure in the near or foreseeable future.

10 While the overhanging branches could be easily removed, I am not satisfied to the level required by s 10(2) that they have caused, are causing, or could in the near future cause damage to the applicant's property or injury to any person. Therefore the Court has no jurisdiction to make any orders for any intervention with the Mango tree.

11 In regards to the Blueberry Ash, these trees are several metres from the dividing fence and do not overhang the applicant's property. The living tree suffered some storm damage to the upper part of its canopy and there is a relatively small "hanger" caught in the tree. In my opinion when this branch finally falls it is highly unlikely to cause any damage or injury. While the other tree is dead it has a slight lean away from the applicant's land and the branches are relatively small. Even though it will continue to deteriorate, in my view it too is unlikely to cause any damage to the applicant's property or to anyone on the applicant's land. The respondent raised no concerns about any risks to anyone or anything on his property. He is aware of council procedures should he wish to remove the tree.

12 Therefore I am not satisfied that the tests in s 10(2) are met, however, if I am wrong in my assessment of the risk to anyone on the respondents' property as a consequence of the dead Blueberry Ash, as a matter of discretion, no orders will be made for its removal.

13 With respect to the two closest Paperbarks, the western most of these is many metres from the dividing fence and no part of it overhangs the applicant's property. However, the applicant is concerned that it is still growing and that it may cause damage or injury in the future. Tips of branches of the other Paperbark slightly overhang a Macadamia tree planted on the applicant's land. The applicant is concerned that branches from this tree, or indeed the whole tree, may fall onto her property in strong winds.

14 Again, with the expertise I bring to the Court, I saw no signs in either tree that would lead me to conclude that branches are likely to fall onto the applicant's property. Similarly I saw no signs of instability in these or any other tree I was taken to on the respondents' land that would lead me to conclude that whole tree failure is likely in the near or foreseeable future.

15 In regards to the likelihood of lightning strike and consequential damage or injury, this too is not foreseeable but rather a remote theoretical possibility that does not achieve the level of satisfaction required by s 10(2). With respect to the bushfire issue, this is considered in Freeman v Dillon [2012] NSWLEC 1057 at [86], and in the matter before me, the risk of consequential damage or injury cannot warrant the making of any orders under s 9 of the Act.

16 Therefore, the application made under s 7 Part 2 of the Act is dismissed.

The Part 2A application

17 The applicant contends that the trees growing in the respondents' backyard severely obstruct sunlight to windows of the residential units. She is seeking orders requiring the respondents to cut the trees "to a certain height" (the height is not specified).

18 In applications made under Part 2A there are a number of jurisdictional tests that must be satisfied before any orders can be made for any intervention with the trees. The process is described in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 as a series of 'gates' that must be passed through.

19 The first of the 'gates' is s 14A(1)(a) this states:

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

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

20 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. Elsewhere, His Honour states that Part 2A does not apply to self-sown or individual trees.

21 'So as to form a hedge' has also been considered in a number of other judgments including Wisdom v Payn [2011] NSWLEC 1012 at [45] where, in part, the Commissioners consider that the "the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English understanding of the word, would be perceived as a hedge".

22 In the matter before me the trees nominated by the applicant as causing the obstruction of sunlight are a number of mature Melaleuca quinquenervia that are assumed to have been planted by a previous owner of the respondents' property. This species is locally indigenous and given the size of some individual specimens it is also possible that some of the trees may be remnants. The trees are randomly planted/ located throughout the respondents' large backyard; some are in small groups and others are well spaced and interspersed with other tree species. The applicant's diagram in the application claim form illustrates this arrangement.

23 As the tree planter was not present at the hearing, the purpose of the planting could not be ascertained nor was it possible to determine if any of the trees were remnants, however, I consider it highly unlikely that any reasonable person off the street would perceive the Paperbarks as forming a hedge.

24 I am not satisfied on the evidence before me that the Paperbarks satisfy s 14A(1)(a) and therefore that 'gate' remains closed and the Court cannot proceed to consider any obstruction of sunlight as a consequence of those trees.

25 The only trees on the respondents' property about which the applicant has raised concerns and which satisfy s 14A(1)(a) are a row of six young/semi-mature Lillypillies. These trees were planted by the first respondent's mother-in-law along a section of the common fence to provide a privacy screen. They are in excess of 2.5m and therefore also satisfy s 14A(1)(b).

26 Therefore, 'gate' 14A(1) is opened. The next relevant 'gate' is s 14E(2)(a)(i) which states that:

(2) The Court must not make an order under this Part unless it is satisfied:

(a) the trees concerned:

(i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land,

27 The applicant admits that these trees are not obstructing any sunlight to any window of her property and I agree. Therefore, as s 14E(2)(a)(i) is not met, that gate remains closed and no orders can be made for any intervention with the Lillypillies.

Orders

28 Therefore, as a consequence of the foregoing, the Orders of the Court are:

(1) The application in its entirety is dismissed.

____________________________

J Fakes

Commissioner of the Court

Decision last updated: 23 January 2013