Land and Environment Court New South Wales

• Medium Neutral Citation: Datt & anor v Fevre & anor [2013] NSWLEC 1037
• Hearing dates: 1 March 2013
• Decision date: 01 March 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application under Part 2 dismissed.

Application under Part 2A upheld in part; pruning ordered

• Catchwords: TREES [NEIGHBOURS] Damage to property; obstruction of sunlight.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Clune v Falconer [2008] NSWLEC 1458; Freeman v Dillon [2012] NSWLEC 1057; Immarrata v Mourikis [2007] NSWLEC 601; Robson v Leischke [2008] NSWLEC 152; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: J and M Datt (Applicants); D and L Fevre (Respondents)
• Representation: Applicants: J and M Datt (Litigants in person); Respondents: D and L Fevre (Litigants in person)
• File Number(s): 21191 of 2012

Judgment

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

1 COMMISSIONER: This is an application made under both s7 Part 2 and s 14B part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Glenwood.

2 The applicants are seeking orders for the removal of eight Waterhousia floribunda planted along the rear of the respondents' adjoining property. These orders are sought on the following grounds:

• Roots from the trees have caused cracks in the soil and concrete pavement at the rear of their property;
• Leaves from the trees have rotted guttering and have caused blockages leading to overflowing;
• Falling branches may cause damage to the roof or injure someone;
• Leaves are a fire hazard in hot weather;
• Insects living in the debris from the trees could bite someone; and
• The trees severely obstruct sunlight to windows of their dwelling.

3 The applicants are also seeking compensation for the costs of making the application. In this regard, Commissioners do not have the jurisdiction to award such costs. A separate Notice of Motion must be heard by a Judge or Registrar of the Court.

4 The respondents do not wish to remove the trees as they and their tenants value them for screening, privacy and shade.

5 In January 2013, the respondents reduced the height of the trees by 20% as approved by Blacktown City Council. They have no objection to the applicants pruning overhanging branches.

6 The respondents purchased their property in 2002. The trees are thought to have been planted by the developer shortly after the respondents' two-storey dwelling was constructed in 1997. The trees are at approximately 2.5 m spacings along the back fence on the southern side of the respondents' property. According to the respondents, the same developer/ landscaper planted a similar row of the same species on the property to their east.

7 The applicants purchased their property in 1999. In 2010 they extended their dwelling some 4-5m to the north by constructing a single storey sunroom, and associated awnings, at the rear of the dwelling. To the east and west of the sunroom are relatively large covered paved areas of coloured, stencilled concrete. The roof extends to the north by about 1m and covers paving that connects the eastern and western areas. The northern edge of the paving is approximately 2.5m or so from the dividing fence between the parties' properties and therefore the trees.

8 The trees overhang a rough garden bed between the paving and the fence. There are at least three fruit trees growing in this garden bed.

Part 2 application

9 In applications made under s7 Part 2 of the Act, the key jurisdictional test is satisfaction of s 10(2). This states that the Court must not make an order under this Part unless it is satisfied that any of the trees 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.

10 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...".

11 As the applicants are concerned about future damage or injury as a consequence of falling branches, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has considered that, as a 'rule of thumb', 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 of the site apparent at the time of the hearing.

12 Each of the issues raised by the applicants is considered.

Cracking of soil and pavement

13 The applicants contend that the roots from the trees dry the soil and cause it to crack and that the drying soil is the cause of cracking in several parts of the stencilled concrete paving installed in 2010. The applicants stated that they complained to the builder about the cracks in the paving and that he said the cracking was due to cracking soil.

14 The builder was not present at the hearing and there was no evidence by way of a report to validate this information. When questioned, the applicants stated that the soils in the area are reactive clays.

15 With the expertise I bring to the Court, I observed the surrounding soil to be disturbed with evidence of mixed soil horizons (including subsoil and parent material), not uncommon on sites where construction has occurred. The subsoils in the area are recorded as being at least moderately reactive [shrink when dry, swell when wet]. As the weather leading up to the hearing, and the day of the hearing, was very wet, there were no obvious cracks in the soil.

16 I observed the few cracks in the paving to be perpendicular to the edge and principally associated with the support posts for the extension of the roof above. I saw no expansion joints anywhere in the expanse of pavement.

17 The applicants did not show me any roots in the vicinity of the cracks or anywhere else.

Findings - cracks

18 While plants do remove water from soils and may exacerbate natural cracking of soils, there is no evidence to demonstrate that roots from the respondents' trees have caused the cracks in the paving. Even though the trees need only be a cause of damage (Robson v Leischke [2008] NSWLEC 152 at [179]) (and there is no evidence of this), in my view, the reactive soils and absence of expansion joints would be more likely contributors. Similarly, there is no evidence as to whether the concrete is reinforced and whether it meets industry standards.

19 In regards to the reported cracking of the soil, Preston CJ in Robson v Leischke at [166] considers that drying of the soil without consequential damage to other property would not be covered by the Trees Act.

20 Therefore, as s 10(2) is not satisfied, the Court has no jurisdiction to make any orders for any interference with the trees on this basis.

Guttering

21 I was not shown any evidence of 'rotted' guttering. There was heavy rainfall on the day of the hearing and there was no evidence of leaking or overflowing gutters. Therefore on the evidence before me, I am not satisfied that s 10(2) is met.

22 However, if I am wrong in this, as a matter of discretion, no orders would be made for any interference with the trees on the basis of leaf drop. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292, which I consider is appropriate in this matter, 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.

23 Therefore this element of the application is dismissed.

Falling branches

24 The applicants stated that no branches falling from the trees have caused any damage to their property or any injury to anyone. The applicants indicated a number of small diameter dead branches on the garden bed beneath the trees.

25 I saw nothing that would lead me to conclude that, in the near or foreseeable future, falling branches are likely to cause damage or injury. The fallen material comprised smallish twigs. Therefore this element of the application is dismissed.

Fire

26 In the application claim form, the applicants refer to their concern that the leaves could become a fire hazard in hot weather. At the hearing, the second applicant stated that when she lit a barbecue, the overhanging branches above her caught fire.

27 The issue of leaves etc as a fire hazard is discussed in Freeman v Dillon [2012] NSWLEC 1057 at [86]. In regards to the barbecue incident, this is not damage caused by the tree but rather damage caused to the tree.

28 The applicants' concerns about fire do not meet the jurisdictional tests in s 10(2).

Biting insects

29 While biting and other insects may inhabit debris from trees, or live in or on trees, this is not a matter that engages the Court's jurisdiction under the Trees Act. This is discussed in a number of judgments including Robson v Leischke at [189], Immarrata v Mourikis [2007] NSWLEC 601 (with respect to bees), and Clune v Falconer [2008] NSWLEC 1458 (with respect to mosquitoes and termites).

Conclusions - application under Part 2

30 As no element of the application made under Part 2 satisfies the necessary jurisdictional tests, this part of the application is dismissed.

Application - Part 2A - sunlight

31 The applicants contend that sunlight to the northern windows of their sunroom is severely obstructed by the respondents' trees.

32 In applications under Part 2A, there are a number of jurisdictional tests that must be satisfied before the Court can make any orders under this Part.

Are the trees planted so as to form a hedge?

33 The first of these jurisdictional tests is satisfaction of s 14A(1) - that is, are the trees planted so as to form a hedge and are they more than 2.5m tall?

34 While the original landscaper cannot be questioned as to the purpose of the planting, I am satisfied on the basis of the species, spacings and layout of the trees that they satisfy the criteria in s 14A(1). Therefore, the Court can proceed to consider the severity of the obstruction of sunlight.

Is there a severe obstruction of sunlight as a consequence of the trees?

35 The next relevant jurisdictional test is s 14E(2), this states:

(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, or

(ii) are severely obstructing a view from a dwelling situated on the applicant's land, and

(b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

36 While shadow diagrams would be very helpful in assessing the impact of trees on sunlight to the windows of the applicants' dwelling, neither the Act or the court's directions require them to be produced.

37 There is a photograph included with the application claim form that shows the shading of the rear portion of the sunroom roof and the extent of the foliage prior to the reduction in height of the trees. While the top of the trees has been reduced, the foliage overhanging the applicants' property remains. I am satisfied that this foliage severely obstructs sunlight to the north facing windows of the applicants' sunroom. Therefore s 14E(2)(a)(i) is satisfied.

Matters for consideration

38 Consideration of s 14E(2)(b), and therefore what, if any, orders should be made, requires consideration of the relevant matters in s 14F of the Act. These are discussed below.

39 The trees were well established and presumably quite tall when the applicants built their sunroom relatively close to the common boundary (and therefore the trees). Apart from the foliage of the respondents' trees, sunlight is likely to be obstructed by the awnings surrounding the sunroom. There are also trees on the property to the east of the respondents' that would limit some sunlight, as might the respondents' two-storey dwelling.

40 The respondents value the trees for privacy, screening and shade. Given the proximity of the applicants' extension to the respondents' back yard, the value of the trees as a screen is perhaps increased. The trees also limit overlooking from the respondents' upper storey into the applicants' property. The trees add to the amenity of the respondents' property.

41 While the January 2013 pruning was quite heavy, I observed signs of regrowth. This species is relatively tolerant of pruning.

42 The applicants are seeking the removal of the trees. The respondents have reduced the height of the trees by at least 20% - quite a substantial reduction and clearly illustrated in the photographs in exhibit 1. Given the normal growth rate of this species, this height is quite possibly about the height of the trees when the applicants' extension was built.

43 It is not the intent of the Act to provide applicants with more sunlight (or views) than they had when they purchased, or in this case extended, their property. Therefore, in my view, it would be unreasonable to order the removal of the trees but some pruning is not unreasonable.

44 I am not minded to order any further reduction in height however a reduction in the extent of the overhang is justified, as is maintenance of the height of the trees. Given the pre-existence of the trees and the applicants' actions in bringing their dwelling closer to the trees, I consider the applicants should make some contribution to the cost of the pruning.

Orders

45 Therefore as a consequence of the forgoing, the Orders of the Court are:

(1) The application to remove the trees is dismissed.

(2) The application under s 7 Part 2 is dismissed.

(3) Within 60 days of the date of this judgment, the applicants are to engage and pay for an AQF 3 arborist or horticulturalist to reduce the ends of the overhanging branches of the Waterhousia floribunda by 1.5 to 2m. No pruning is to extend into the respondents' property.

(4) The work in (3) is to be carried out in accordance with the general provision of AS4373 - 2007 Pruning of Amenity Trees and with the specific provisions for reduction pruning. The work must also be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5) The respondents are to reimburse the applicants 50% of the cost of the pruning within 14 days of the receipt of a tax invoice for the completed work.

(6) Orders (3), (4) and (5) are to be carried out annually within two weeks either side of the anniversary of the first pruning.

(7) Commencing in April 2014, and then annually, the respondents are to engage and pay for an AQF level 3 arborist or horticulturalist to maintain the height of the trees to the height to which they were cut in January 2013 as evidenced by the level of the remaining stubs.

_________________

J Fakes

Commissioner of the Court

Decision last updated: 04 March 2013