Land and Environment Court New South Wales

• Medium Neutral Citation: McLucas & anor v Invocare Australia Pty Ltd; Holborow v Invocare Australia Pty Ltd; Dungey v Invocare Australia Pty Ltd; McEwan v Invocare Australia Pty Ltd; Ziesig & anor v Invocare Australia Pty Ltd [2013] NSWLEC 1054
• Hearing dates: 21 March 2013
• Decision date: 04 April 2013
• Jurisdiction: Class 2
• Before: Moore SC, Fakes C

Decision

In each matter, the decision is that the application dismissed

• Catchwords: TREES [NEIGHBOURS] jurisdictional question: does the Act apply to land zoned Special Activities - Cemetery; multiple applicants, common row of trees; damage, injury; hedge - obstruction of sunlight; TREE DISPUTE PRINCIPLE - As a matter of discretion, ordinary maintenance to remove slime and mould should be expected (following from the principle in Barker v Kyriakidis [2007] NSWLEC 292)
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Wollongong Local Environmental Plan 2009; State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
• Cases Cited: Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council [2008] NSWLEC 284; (2008) 168 LGERA 239; Barker v Kyriakidis [2007] NSWLEC 292; Blue v Camelleri [2007] NSWLEC 138; Hendry & anor v Olsson & anor [2010] NSWLEC 1302; Hurditch v Staines [2008] NSWLEC 1351; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2007] NSWLEC 182; Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280; Tuft v Piddington [2008] NSWLEC 1249; Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: McLucas & anor (Applicants in Matter no: 21182 of 2012); Holborow (Applicant in Matter no: 21183 of 2012); Dungey (Applicant in Matter no: 21183 of 2012); McEwan (Applicant in Matter no: 21183 of 2012); Ziesig & anor (Applicants in Matter no: 21183 of 2012); Invocare Australia Pty Ltd (Respondent in all matters)
• Representation: Counsel; Ms I Dungey (as agent for Mr and Ms McLucas) (Matter no: 21182 of 2012); Ms J Holborow in person (Matter no: 21183 of 2012); Ms I Dungey in person (Matter no: 21183 of 2012); Ms M McEwan in person (Matter no: 21183 of 2012); Ms R Ziesig in person (Matter no: 21183 of 2012); Mr D O'Donnell, solicitor (for the respondent in all matters); Solicitors; N/A (applicants in all matters); Addisons (for the respondent in all matters)
• File Number(s): 21182 to 86 of 2012

Judgment

Introduction

1 THE COMMISSIONERS: In 1993, Wollongong City Council (the council) granted development consent for the establishment of a cemetery and Memorial Park at Kanahooka, in the south of the city's local government area. One of the conditions of the council's development consent was that the operator plant a row of She-oaks along what was described as the northern boundary of the site (in reality a boundary running north-east to south-west). The relevant condition reads as follows:

5. The developer must include in the landscape Masterplan a three metre wide planting bed along the northern boundary adjacent to the crypts. This bed is to be planted with Casuarina glauca to screen the crypts from the adjoining properties.

2 The relevant explanatory notes for the imposition of this and other conditions say:

a. To minimise any likely adverse environmental impact of the proposed development.

b. To ensure the protection of the amenity and character of land adjoining the locality.

3 The row of trees to be planted along the boundary of the cemetery was planted shortly thereafter, at a precise time irrelevant for these proceedings. They have grown and are now an established belt of trees, well over 100 m in length but not seamlessly continuous (as will be later discussed). The trees are two different species of She-oak and are located some 3 or 4 m to the west of the northern boundary of the cemetery. The trees range from some 10 to 17 m in height and, in some parts, have an understorey of new suckers arising from their root systems.

4 Immediately beneath the trees, there is, as is common for She-oaks, a thick carpet of needles that have been shed from the trees. The western portion of the row of trees has been more extensively and recently managed by the pruning on their southern side to provide clear separation from a bundled power cable that runs along the adjacent boundary. As part of this management process, this portion of the row of trees has been subject to what is known as crown lifting, a process whereby lower limbs are removed to the trunk whilst the crown is allowed to grow upward. The consequence of this is that, for many of these trees, from ground to a height of several metres, there are no limbs or foliage, merely the bare trunks.

The adjacent development

5 As we understand it, at the time the cemetery was developed, the land on the other side of the relevant boundary was vacant. Some nine or more years ago, this land commenced to be developed for a community title residential subdivision. This subdivision was developed in stages and, now, the stages along the relevant boundary of the cemetery have been constructed and the residences along the boundary occupied.

6 Some of these residences have side boundaries to the cemetery's boundary, whilst others have that boundary as their rear boundary. From our inspection during the course of the proceedings, the properties that are adjacent to the cemetery's boundary have their built form coming within no more than 4 m or so from that boundary.

The Trees (Disputes Between Neighbours) Act 2006

7 In 2006, the New South Wales Parliament enacted the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) to provide a simple and cheap mechanism to resolve disputes between neighbours over trees. The legislation replaced common law actions in nuisance in such circumstances.

8 Trees are living organisms. They grow, they shed branches, leaves, fruits and other detritus of sizes varying from the large to the individual leaf or needle. They fail, in whole or in part, from time to time. They have extensive root systems for their nourishment and support. The root systems of trees can enter pipes such as sewer pipes, lift structures such as driveways, paving or houses or cause displacement of other features such as retaining walls.

9 The Trees Act, as originally enacted, has enabled disputes about these aspects of tree behaviour that impact on neighbours in the areas to which the legislation applies to be resolved in a quick and inexpensive fashion by application to this Court.

10 Trees can also be planted so as to form a hedge. In 2010, the Parliament extended the scope of the legislation by inserting Part 2A to provide a framework for the determination of disputes concerning hedges where the hedge was said to create a severe interruption to a view from a property or a severe interruption of sunlight to windows of a residence.

Jurisdictional tests

11 The Trees Act is not, however, without limitations to its application. The legislation requires a number of jurisdictional tests to be satisfied before the Court has any power to determine any tree dispute. Some of those tests relate to the location of the property that hosts the trees, whilst others relate to the trees themselves. The tests for hedges differ from those relating to more general disputes about trees.

The present proceedings

12 The owners of five of the residences on the community title estate that has been constructed along the boundary of the cemetery have each lodged applications under the Trees Act concerning those elements of the row of She-oaks that are growing immediately adjacent to the element that each residence shares of the boundary to the cemetery.

13 All of the applications seek relief pursuant to Part 2 of the Trees Act whilst several also seek relief pursuant to Part 2A of the Act. The various applications have elements in common, either for all five applications or for smaller groups of them. Some of the applications also have very specific matters that arise only in their individual context.

The zoning issue

14 The Trees Act contains a provision, in s 4, that sets out the jurisdictional pre-requisites for the zoning of the land upon which any trees are located. That test is in the following terms:

4 Act applies to trees on certain land

(1) This Act applies only to trees situated on the following land:

(a) any land within a zone designated "residential", "rural-residential", "village", "township", "industrial" or "business" under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979) or, having regard to the purpose of the zone, having the substantial character of a zone so designated,

(b) any land of a kind prescribed by the regulations for the purposes of this section.

15 Although the zoning location test for hedges in Part 2A is slightly narrower (it does not apply to "rural residential properties" or "large lot residential", see s 14A(2)(a) (and s (1A)(a)) of the Trees Act) that is not relevant to those of these proceedings raising matters under Part 2A.

16 It is the Court's practice, when it is not immediately obvious from the face of the documents lodged with any tree dispute application, that this jurisdictional test is raised with the parties at the preliminary directions hearing. Amongst other things, the preliminary directions hearing sets the timetable and considers other matters for the final merits hearing. This includes any issues that might need to be considered about whether or not the zone of the property upon which the trees are growing satisfies the jurisdictional tests relating to zoning. This arises because it is not possible for the Court to exercise jurisdiction concerning trees, even if the parties to the proceedings agree that the Court should do so, if it has no jurisdiction to entertain the application.

17 In the case of these applications, the cemetery is zoned "Special Activities 1 - Cemetery", and is shown as such on the Land Zoning Map, under the Wollongong Local Environmental Plan 2009 (WLEP). Relevantly, the land use table in the WLEP for uses within the SP1 Special Activities zoning is in the following terms:

1 Objectives of zone

• To provide for special land uses that are not provided for in other zones.

• To provide for sites with special natural characteristics that are not provided for in other zones.

• To facilitate development that is in keeping with the special characteristics of the site or its existing or intended special use, and that minimises any adverse impacts on surrounding land.

3. Permitted with consent

The purpose shown on the Land Zoning Map, including any development that is ordinarily incidental or ancillary to development for that purpose; Advertising structures; Child care centres; Community facilities; Information and education facilities; Recreation areas; Recreation facilities (indoor); Recreation facilities (major); Recreation facilities (outdoor); Respite day care centres

18 The specific purpose shown on the Land Zoning Map for this land is "Cemetery".

19 In this context, each of the applicants and the common respondent, the company operating the cemetery, were asked to address how it was said that the cemetery satisfied this zoning test.

20 All of the applicants simply put the proposition, as we understood it, that as the cemetery was in an urban area, it was within the scope of the legislation. It was also said by Ms Dungey that the cemetery was a commercial operation and for-profit business. In this context, not said in any sense disrespectfully, it should be noted that all of the applicants were self-represented (although, at the final hearings one set of applicants was represented by one of their fellows as those applicants were on holidays at that time of the hearing).

21 On the other hand, Mr O'Donnell, a senior practitioner well experienced in the jurisdiction of the Court, represented the cemetery owner. He indicated to us during the course of the hearing at Port Kembla courthouse after the inspection of the cemetery and each of the applicant properties, that his client had considered the jurisdictional question now discussed and had concluded that the cemetery did fall within the scope of the suite of zonings provided for in s 4 of the Trees Act.

22 In putting this proposition, Mr O'Donnell, relied upon two decisions of Preston CJ which decisions, Mr O'Donnell said, were applicable by analogy. Those decisions are Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2007] NSWLEC 182 and Australian Lifestyle Corporation Pty Limited v Wingecarribee Shire Council [2008] NSWLEC 284; (2008) 168 LGERA 239.

23 Each of these cases involved an interpretation of a phrase in the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 or its predecessor. The application of those policies permitted the development of residential accommodation for seniors or people with a disability on land zoned primarily for urban purposes.

24 In Merlin, the Chief Judge held that the land zoned "Special Purposes (Hospital)" was so zoned whilst, in Australian Lifestyle, he held that land zoned "Special Purposes (Church)" was so zoned.

25 Mr O'Donnell submitted to us that, although the zonings set out in s 4 of the Trees Act were specifically nominated, they were appropriately considered together, in what we understood to be, in effect, an aggregated test in addition to individual tests applicable to the specific zoning designation. Doing so, he submitted, should lead us to conclude that the here applicable zoning, "Special Activities 1 - Cemetery" was a zoning primarily for urban purposes and therefore fell within the jurisdictional boundaries of the Trees Act.

26 We regret that we are unable to share this conclusion. We have considered, carefully, the land use table in the WLEP. It sets out, in cl 2.1, a list of the zones that are provided for in that table given at the end of Part 2 of the LEP. Although the list in the WLEP is not numbered, for ease of understanding our analysis, we have assigned a number from 1 to 30 to each of the zones in the table. The list of zones in the land use table is in the following terms:

Our number	Zone - WLEP
1	RU1 Primary Production
2	RU2 Rural Landscape
3	RU4 Primary production Small Lots
4	R1 General Residential
5	R2 Low Density Residential
6	R3 Medium Density Residential
7	R4 High Density Residential
8	R5 Large Lot Residential
9	B1 Neighbourhood centre
10	B2 Local Centre
11	B3 Commercial Core
12	B4 Mixed Use
13	B6 Enterprise Corridor
14	B7 Business Park
15	IN1 General Industrial
16	IN2 Light Industrial
17	IN3 Heavy Industrial
18	IN4 Working Waterfront
19	SP1 Special Activities
20	SP2 Infrastructure
21	SP3 Tourist
22	RE1 Public Recreation
23	RE2 Private Recreation
24	E1 National Parks and Nature Reserves
25	E2 Environmental Conservation
26	E3 Environmental Management
27	E4 Environmental Living
28	W1 Natural Waterways
29	W2 Recreational Waterways
30	W3 Working Waterways

27 We are satisfied those land uses numbered 4 to 18 and 27, are, by direct comparison of their title and by consideration of the detail from the uses in the land use table to be regarded as satisfying the test in s 4. We are also satisfied that they would comfortably fit within what Mr O'Donnell proposes, if it were a valid method of consideration of these jurisdictional issues, as zonings primarily for urban purposes.

28 However, we are also satisfied from the title of the zone and the range of permitted activities set out in the detail of the land use table, that the remainder of the zonings, other than 24 - E1 National Parks and Nature Reserves and 26 - E3 Environmental Management, are applicable in urban areas of the council's local government area and might be regarded as primarily for urban purposes but are also, equally, ones that do not fit comfortably (indeed, not at all) by analogy within any of the enumerated zonings set out in s 4 or any equivalent zones to those enumerated zonings.

29 The consequence of that is that, although it is possible that the cemetery, being zoned "Special Activities 1 - Cemetery", might be regarded appropriately as being zoned primarily for urban purposes (a proposition that we do not need to determine in these proceedings) we are satisfied that the zoning of this property does not have it fall within any of the zones enumerated in s 4 nor is the zoning equivalent to that of any of the zones so enumerated.

30 The consequence of us reaching this conclusion is that we do not have the jurisdiction to entertain and make determinations with respect to any of the five applications we are considering.

31 However, against the possibility that we may be wrong in reaching this conclusion, as we indicated to the parties during the course of the hearing, we consider it appropriate that we turn to deal with the merits of each of these applications to avoid any necessity for a further hearing on the merits if our jurisdictional conclusion was to be set aside.

The Part 2 applications

Fear of future damage or injury

32 Each of these applications includes an element that the applicants are afraid that, in some future time of high wind, particularly as these trees have not yet reached maturity and can reasonably be expected to increase significantly further in height, a tree failure will lead to damage to their property or a risk of injury to those residing there. The tests that exist about these fears differ with respect to actual property damage.

33 For future property damage, there is a specific statutory test provided in s 10(2)(a) of the Trees Act that requires future damage to be likely in the near future. In his seminal decision undertaking an exhaustive analysis of the background to and structure of this legislation, Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280, Preston CJ, at para 200, considered that the impending damage be imminent or there is "a real, appreciable probability of irreparable damage". In Yang v Scerri [2007] NSWLEC 592, the Court published a rule of thumb that was adopted (and has subsequently been applied in numerous other cases) that the near future for the purposes of this legislation was 12 months or so from the date of the hearing of a particular application.

34 For risks of injury, a slightly differently flavoured test, of foreseeability, flows from the decision of the High Court in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40.

35 However, in the context of these five applications, the differing nature of these tests does not cause any change in our broad conclusion of the outcome of these applications on this basis.

36 First, we should repeat a broad proposition that was first enunciated, for the purposes of this legislation, in one of the very early decisions we gave (see Blue v Camelleri [2007] NSWLEC 138). Put simply, fear, no matter how honestly and genuinely held, cannot provide any basis for removal of or intervention with a tree unless there is some realistic prospect that what is feared will actually happen in any appropriately foreseeable timeframe.

37 In the case of each of these applications, with the exception of one instance discussed below, there is no evidence of any branch of any of these trees blowing onto or falling across any of the five residential properties in these applications.

38 Although we were shown one tree in the vicinity of one of the applicant's properties that had failed, it had failed away from the common boundary.

39 The cemetery owner's arborist, Mr Taylor, had undertaken an extensive examination of the trees and had concluded that only one of them in any proximity to any of the applicants' property was at risk of failure. That tree, one with twin leaders (trunks) and included bark at the junction of these trunks, had one of these trunks at risk of failing - but that that failure would be into the cemetery lands rather than towards any of the residences.

40 During the course of the site inspections, Mr Taylor, was asked to confirm his general conclusion during the course of each individual property inspection. He did so. Our own inspection of the trees, from both the cemetery lands and from each individual property, has led us to endorse this conclusion with respect to each of the properties.

41 Only at the property of Ms Dungey, the third of the properties inspected, was any evidence given of any branch said to be of any significance being blown from any of the trees toward one of the applicants' properties. In this instance, Ms Dungey described a branch, of unspecified dimensions, being blown to the vicinity of her kitchen window, a distance of some 6 m or so from the boundary with the cemetery and some 10 m or so from the band of trees. We were provided with no information about the size of this branch but it did not cause any damage nor did it injure any person.

42 It is our experience, over the period since the commencement of operation of the Trees Act in 2007, that genuine fears that are held, particularly by those of more mature years (as is here the case for all these applicants) when there are tall trees (particularly when there are a number of them) in close proximity to a residence.

43 Trees are living organisms. In time of moderate to high winds, they move and can bend under the influence of the wind. They creak and groan as they flex to accommodate stresses imposed on them. This movement and these noises engender these fears - fears, we repeat, that we accept are genuinely and honestly held. The fact that they are genuinely and honestly held, does not mean that they are well founded or that they give rise to satisfaction of the jurisdictional tests under the Trees Act.

44 In the present five instances, there is no basis upon which we could be satisfied that the trees within the five adjacent segments of the belt of She-oaks, or any individual tree within any of those segments, satisfied the future damage or risk of injury test to enliven the jurisdiction of the Court.

Deposition of detritus from the trees

45 Each of the applications offered, as a basis why there should be removal of the trees adjacent to the relevant property, the fact that large quantities of needles and small hard fruits of the trees along with small twigs or branches were deposited in each of the applicants' properties by being carried over the boundary fence between the relevant property in the cemetery by the action of westerly winds.

46 In some instances (the McLucas, McEwan and Ziesig applications) blocking of the gutters was said to have caused water damage and/or penetration of the residence.

47 In all instances, evidence was given of what was said to be the unreasonable maintenance burden imposed, particularly given the mature years of those involved and their lessening physical capabilities, to undertake the necessary work to remove the detritus deposited by the trees. In addition, risk of injury was said to arise from slip and fall on the needles or on the fruits, and in the Ziesig matter, the risk of falling as a consequence of cleaning the gutters. In the McEwan application, because the fruits are small, round and hard, risk of injury/ damage is said to arise from their ejection from the lawn mower when the grass is cut

48 Quite early in the exercise of the Court's jurisdiction under this legislation, we published a Tree Dispute principle concerning maintenance of properties in urban areas and detritus deposited from trees. That case, Barker v Kyriakidis [2007] NSWLEC 292, set out the following principle:

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.

49 In one of these applications, that of Ms Dungey, she submitted to us that the extent of the material deposited on her property, particularly in the aftermath of at times high wind, was so severe as to constitute an exception to the general rule published in Barker and thus warranted orders for removal of the trees adjacent to her property. This submission was also adopted, as we understood it, for each of the other properties.

50 Whilst there is, no doubt, a significant degree of deposition of detritus from the relevant clusters of these trees onto the adjacent applicant property, we cannot be satisfied that there is any proper basis to depart from the broad principle adopted in Barker.

51 The amount of detritus visible during the inspection of the various properties together with that which could be observed in the immediate vicinity of the understorey of the trees themselves, shows that what falls onto the adjacent properties is merely that which might reasonably be expected from trees of this nature and proximity of planting. As a consequence, merely from the perspective of the maintenance expectation that would arise from the proximity of these trees, departure from the application of Barker and ordering the removal of the trees are not warranted.

Actual or imputed prior knowledge of the impact of these trees

52 A broader question arises from the fact that the trees were reasonably well established at the time each of the applicants either bought an established dwelling and moved into it or constructed a new dwelling and commenced occupying it.

53 In one instance, that of Ms Holborow, who constructed her dwelling in 2003, she provided photographs taken at the time of construction of her dwelling.

54 Given that the ground level of the base of the trees is at least a metre or so below the ground level of any of the applicants' properties (as observed during the course the site inspection) and that the intervening retaining wall has a dividing boundary fence on top of approximately 1.8 m in height, the photograph makes it clear that, at the time of construction of her house, a number of the She-oaks in the vicinity of her property were 5 m or more in height.

55 The year of taking up residence of each of the other applicants was:

• McLucas - 2006
• Dungey - 2006
• McEwan - 2010
• Ziesig - 2005

56 Mr O'Donnell submitted to us that we should assume, from the relative ages of the trees when compared to the time period of development of the residential estate (and, in some instances, a somewhat later occupation of already established houses in that estate by some of the applicants), that we should find that, for any of the purposes for which the applications are made, each applicant should be assumed to have been reasonably aware of the likely consequences of living in the vicinity of such trees, particularly those planted at the density in this instance.

57 In one matter, that of Mr and Ms McEwan, Ms McEwan tendered a copy of a prepurchase inspection report which included, in its summary, the following:

There were two cracked valley tiles that require replacement. The valleys and gutters are full of leaves which will cause them to rust. These areas should be kept clear.

58 Although Ms McEwan relied on this to demonstrate a past history, prior to her ownership, of damage and gutter blockage, it also provides a positive indication that she and her husband were on actual notice of at least a significant element of the maintenance responsibilities that would fall on them as a consequence of the proximity of the trees.

59 Preston CJ makes it clear in Robson (at paras [171]-[172]) that the mere deposition of detritus from trees does not in itself satisfy any of the relevant jurisdictional tests in s 10(2)(a) of the Trees Act.

60 In this instance, we are prepared to assume, taking the various applicants' cases at their highest, that there is some risk of slip and fall injury from the needles and fruits of these trees. However, having postulated satisfaction of that jurisdictional test, and/or, again taking the applicants' case at the highest, that there is some risk of damage to their property by the accumulation of detritus in their gutters, consistent with the tree dispute principal set out earlier arising from Barker, as a matter of discretion we would not order removal of or intervention with the trees on either of these bases.

61 Similarly, although we heard evidence from Ms Dungey that several She-oak suckers had emerged in her garden, there was no claim (with the exception of that of Mr and Ms McLucas discussed below) that there had been any actual damage occasioned to any of the properties as a consequence of roots from any of the She-oaks entering their properties.

62 Similar tests for likelihood of damage in near future or risks of injury arise in this context as earlier discussed concerning tree failure. As a consequence, with respect to the four properties other than the McLucas' properly, there is no evidentiary basis whatsoever upon which we could conclude that this aspect of the application, in each instance, satisfied the relevant jurisdictional tests.

63 With respect to the claim for damage to the McLucas' property, our inspection of this property was undertaken during the absence of Mr and Ms McLucas who were on holidays. However, with the cooperation of those occupying the property in their absence, assisted by Ms Dungey who was acting as the McLucas' agent during the course of the proceedings pursuant to the written notice lodged with the Court, we inspected the McLucas' property.

64 The damage that was claimed actually to have been caused to their property by roots of one or more of the She-oaks in the section adjacent to this residence was said to be cracking to one or two 300 x 300 mm ceramic floor tile/s and cracking of a concrete slab. Photographs of the cracked tiles were provided in the application document tendered in these proceedings (12/21182).

65 In Mr and Ms McLucas' absence, we were unable to locate either of the specified elements of damage to observe them for ourselves.

66 Apart from assertion that the damage was caused by the roots of the trees, there is no evidence in the written and photographic material tendered that demonstrates this to be the case. While two photographs show roots described as being from the trees in close proximity to a masonry structure, the nexus between the roots and the alleged damage is not established.

67 With respect to the floor tile, cracking of a single tile within a floor of similar tiles laid on an onground slab is, in our experience, improbable to have been caused by a tree root.

68 Although Ms Dungey said, during the course of our inspection of the McLucas' property that a significant section of the side footpath and of a stencilled concrete slab were newly constructed as a consequence of tree root displacement, this is not claimed in the McLucas' application and, in any event, we have no evidence that this is the case.

69 As a consequence, whist that aspect of the McLucas' claim that is based on future damage is rejected on the same basis as those of the other applicants, their specific claim concerning the existence of damage is one we are unable to accept as we do not have any proper evidentiary basis upon which we would conclude that the cited damage was, in fact, caused by the roots of any of the She-oak trees.

Bushfire risk

70 The applicants all complained about what they saw as the bushfire risk associated with having the belt of trees in close proximity to their homes.

71 The Trees Act is designed to deal with matters physically related to a tree and its interaction with its surrounding human modified environment. We are not satisfied that general bushfire risk posed by trees is within the jurisdiction of the Court under the Trees Act.

72 A tree in itself does not start a fire...a person lights a fire; lightning strike, sparks from machinery etc may start a fire. However, if a bushfire damaged the trees and caused part or all of the tree to fail and cause damage to an applicant's property or injury to any person, then this may engage a consideration of s 12(h)(i) and s12 (i)(i), that is "anything, other than the tree, that has contributed, or is contributing, to any such damage/ injury or likelihood of damage/ injury".

73 As discussed by Preston CJ in Robson at [210] this: " would also allow consideration of extraordinary natural events, acts of God, and their contribution to the damage or the likelihood of damage to property or the likelihood of injury to any person". As no injury or damage has occurred in any of the matters before us, as a result of a bushfire affected tree, the Court's jurisdiction is not engaged.

74 Mere fear, as elsewhere discussed, does not engage our jurisdiction under the Trees Act. Those concerned about risks of bushfire need to have recourse, if it is appropriate, to other legislative remedies but cannot seek those remedies under this legislation.

The bundled power cable

75 A bundled (insulated) power cable, some 40 to 50 mm thick, runs along the boundary between the cemetery and the adjacent residential development. It is looped between supports that were located just within the cemetery lands.

76 It was Mr Taylor's evidence, both in his written report and in brief oral evidence at Port Kembla courthouse, that responsibility for pruning the branches of the She-oaks away from this power line sat with the owning electricity supply authority rather than with the owner of the trees. This pruning, he indicated, was one of the reasons why a significant portion of the She-oaks in the vegetative belt had been crown lifted as earlier noted.

77 From his experience, there was no risk to the applicants posed by the proximity of the trees to the power line. It was his evidence (which is consistent with our knowledge of such matters) that in the event of a tree failing and falling onto this power line, the line is designed to detach from its supports and fall to the ground rather than to break.

78 Although we observed that some foliage was extending from trees in the northern section of the belt, including in the vicinity of the Holborow and Ziesig properties, this vegetation was not of any substantial size and was not touching the power cable.

79 Although we have contemplated whether we should also impose, separately, an ongoing pruning obligation on the owner of the cemetery to ensure that pruning of this foliage is undertaken - thus creating, in practical effect, a dual legal obligation to do this, we do not propose to do so.

80 We have reached this conclusion because there is no evidence that would support any finding that any of jurisdictional tests in s 10(2) are satisfied in this regard. Whilst there is some superficial, "belt and braces" attraction to imposing such an obligation, to do so would merely be in response to a fear (although we accept, as earlier noted, one honestly and genuinely held) rather than on any proper evidentiary foundation.

Pollen

81 The releasing of pollen and its airborne carriage across the boundary of the cemetery lands gave rise to two complaints in these proceedings (McEwan and Ziesig).

82 The first was, as we understood it, the depositing of that material on washing and other surfaces leading to an increased cleaning burden. In this regard, no actual damage was claimed and thus there is no satisfaction of any of the property damage jurisdictional tests in s 10(2)(a). In any event, the principle in Barker would apply, as a matter of discretion, even if there were a proper jurisdictional basis to contemplate intervention.

83 The second complaint concerning pollen related to what was said to be the hay fever triggered by such pollen. Such a complaint is not uncommon in applications such as these. Although the Court has held that pollens and other windblown particulate matter from trees such as fibres are capable of satisfying the jurisdictional test in s 10(2)(b) (see Tuft v Piddington [2008] NSWLEC 1249 and Hurditch v Staines [2008] NSWLEC 1351 for example), these are a consistent line of cases holding that there must be proper medical evidence basis to satisfy the jurisdictional test in s 10(2)(b). No such evidence has been provided in either of these applications and, as a consequence, we cannot be satisfied that the Court's jurisdiction has been enlivened by this complaint.

The slime and mould

84 Occurrences of slime and mould in areas shaded by these trees were pressed as a risk of injury by slip and fall. Potentially complex issues of causation arise where slime and mould is shown to exist in the lee of trees. Attributing such slime mould and to overshadowing by such trees does not demonstrate as directly obvious a causal factor as when, for example, roots are visible and obviously impacting some structure on an applicant's property.

85 However, in these five instances, taking this aspect of the applicants' cases at its highest (as no specific locations where such mould and slime was said to occur were shown to us, let alone any actual instances of it) to the extent that this might enliven the Court's jurisdiction through the s 10(2)(b) gateway, discretionary considerations would then arise.

86 In this regard, in Hendry & anor v Olsson & anor [2010] NSWLEC 1302, the Court adopted the position that the maintenance obligations discussed in the tree principle published in Barker should extend to maintenance necessary to deal with instances of mould and slime, if demonstrated, arising from overshadowing caused by trees. We consider that we should also do so for these applications.

87 As the issue of the risk of slip and fall injury as a consequence of slime and mould said to be caused by overshadowing is a not infrequent matter raised in Part 2 applications under the Trees Act, it is now appropriate, in our view, to deal with this by statement of a broad tree dispute principle to provide assistance for those considering, in the future, making applications under the Trees Act.

Tree dispute principal - mould and slime caused by overshadowing

88 In instances where overshadowing by trees is said to cause slime or mould on surfaces and thus create a risk of slip and fall injury, or where such growths are said to have caused, be causing or be likely in the near future to cause damage to an applicant's property, as a matter of discretion proper preventative maintenance should ordinarily be expected as a reasonable obligation in response to the environmental and aesthetic benefits that trees provide in an urban environment.

Conclusion concerning the Part 2 applications

89 As a consequence of all of the foregoing, if we are incorrect in our conclusion concerning the jurisdictional test posed by s 4, we are satisfied that, to the extent that all the applications are based on past or present damage, there is no evidence upon which jurisdiction could be founded.

90 To the extent that the applications under Part 2 are based on the likelihood of the future damage or the risk of injury as a consequence of the deposition of detritus from the She-oaks onto each of the five properties, and to the extent that that might provide a jurisdictional basis for our consideration (taking each of the applicants' case at its highest and not needing to determine the matter) as a matter of discretion we would apply the tree dispute principal in Barker to which we have earlier adverted and dismiss those elements of the applications on this basis.

91 The same position arises with respect to what is said to be the risk of injury arising from shading causing mould and slime.

The Part 2A applications

92 Four of the five applications also sought orders for removal of the relevant portions of the row of She-oaks on the basis that, in each of those four instances, the trees were severely obstructing sunlight to one or more windows of the applicants' dwelling.

93 Mr O'Donnell accepted that the trees constituted a hedge for each of the relevant terms required by s 14A (1)(a) and (b) of the Trees Act. From our observation during the course of the site inspection coupled with the condition of the development consent requiring the planting of these trees, we are satisfied that that concession was appropriate and that the relevant jurisdictional tests have been satisfied concerning the trees.

94 Mr O'Donnell, however, submitted that we were not in a position to contemplate making any orders under Part 2A because of the inadequacy of the information that was available to us. He also submitted that, if we did not accept that proposition, we should also accept the uncontradicted expert evidence of Mr Taylor that removal of sections of the row of trees in the fashion contemplated by the applications would create risks of tree failure due to wind throw in those sections of the row of trees that would remain. Finally, he submitted that the absence of other applications, from a significantly larger number of property owners adjacent to the boundary with the cemetery, should be taken as inferring that they did not share the concerns of the applicants in these proceedings.

95 Whilst the applicants themselves asserted that there had been community discussions and a petition presented to the cemetery owners from a much larger group of property owners and that the cost and trouble of commencing proceedings was the reason why there were not more applications being dealt with by us, it is unnecessary for us to deal with these competing positions in any detail.

96 When questioned, Mr O'Donnell disavowed any suggestion that we were being asked to draw a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference from the absence of evidence from other potentially affected landholders in support of these applicants. It is trite to say that absence of evidence is not evidence of absence. Whether or not the other residents are supportive, neutral or opposed to these applications is a matter of irrelevance to us (apart from our needing to consider Mr Taylor's arboricultural conclusion concerning the opening up of gaps in the row of trees - if we were to get that far, which we do not need to do).

97 Although we both well understand the dynamics of solar access issues as at the winter solstice (that being the time when, in planning terms, such matters are conventionally considered) there is a proper evidentiary process necessary to be followed to enable us to reach a valid conclusions on this element of the four applications based on Part 2A.

98 First, we observe that each of the four applicants seeking orders on these grounds identified the windows that provided the basis for these claims and endeavoured, as best they were able to, to quantify the time and duration of the solar access of which they were deprived and to identify those trees that were causing that impact on the sunlight otherwise available to their windows.

99 In several instances, the shading by trees was said to be to windows located beneath wide metal awnings in which there were translucent light panels. In another instance, the blockage of sunlight was also said to be to photovoltaic solar panels installed on a roof.

100 In the first instance, the obstruction to the light reaching a window through such a light panel in an awning is not sunlight in the sense that we consider the expression is used in the legislation - namely direct sunlight. Whilst it might be obstruction of natural light, it is not obstruction of sunlight and therefore beyond the Court's jurisdiction. If we are wrong in this, the width and nature of the awnings are such that these cause significant shading of those windows, and as a matter of discretion arising from consideration of s 14E(2)(b) and therefore s 14F(m), no orders would be made for any interference with the trees on this basis.

101 With respect to the solar panels, it has been held, in the past (see Hendry), that solar panels are not windows for the purposes of the legislation and we adopt that position in these proceedings. As a consequence, to the extent that any of these four applications under Part 2A are founded on either of those two premises, they are outside the jurisdiction of the Court.

102 As we have earlier noted, these residences are located in a community title subdivision of comparatively recent development. The boundary next to which the residences are located runs in a roughly south-west to northeast direction.

103 The street frontage of the McLucas' property is orientated to the north-east. The principal living areas, including four of the nominated windows/glass sliding doors (kitchen, living room and lounge room), face north-west, one living room window faces north, and the lounge room window at the front of the dwelling, adjoining the front door and garage faces north-east. An extensive awning covers the kitchen and living room windows. The McEwan's property is similarly orientated and the north-west facing kitchen and living room windows/ glass sliding doors are likewise covered by an extensive awning but are more constrained than those of the McLucas' property by the proximity of an adjoining property to the west.

104 Mr O'Donnell submitted, as a further basis upon which we should reject the Part 2A applications, that any obstruction to sunlight, even if severe, would have been in existence or reasonably foreseeable at the time the relevant applicant(s) took occupation of the residence - the extent of the knowledge as opposed to foreseeability depending on the year when they did so.

105 Mr O'Donnell's submission was that, in addition, those applicants who had recently moved into their properties, for example Mr and Ms McEwan, should be regarded as accepting the extent of the interruption to the sunlight of their windows - as the present blockage caused by the trees adjacent to their property would have been in existence at the time they entered into occupation of it.

106 The other two residences, Ms Holborow's and the Ziesig's dwellings, for which Part 2A relief is sought, are located further to the north-east and have their frontage to an internal roadway running parallel to the boundary of the cemetery. As a consequence, the side walls of each of these properties face south-west and north-east whilst their rear walls, parallel to the boundary with the cemetery, faces to the north-west. In the Ziesig application, the only living room window/glass sliding door nominated faces north-east and is covered by an extensive awning.

107 This community title subdivision has, as we have earlier remarked, been comparatively recently developed. As a consequence, the individual allotments are of the order of 400 or 450 m² whilst the dwellings erected on them are generally single level ones built with limited private open space at the rear; modest side setbacks to the boundary to their south-west with, and, in the case of several properties subject to these applications, covered outdoor living areas adjoining their principal indoor living areas.

108 For the Holborow and Ziesig properties, in addition to any impact that the trees might have on their solar access, regard would also need to be had to the impact on such access caused by the physical structure of the dwellings immediately to the north-east in each instance. Absence of any evidence on the impact of the adjacent dwelling in each instance provides an additional inadequacy in the solar access impact information available for these two properties.

109 Absent proper shadow diagrams (that would need to be in plan and elevation) on the basis of the presence of the trees and, hypothetically, without them, we are unable to assess whether or not there is a severe obstruction of sunlight caused by any of the trees (or any group of them) to any of the windows that might reasonably be expected to receive such sunlight at the time of the winter solstice.

110 Absent of such evidence that might enable us to reach such a conclusion, there is no basis upon which we could turn to consider any of the other discretionary matters to which we are required to turn.

111 If we are wrong on this point, there is another serious evidentiary deficiency that would preclude us from making orders were we to be satisfied about the nature and extent of any hypothetical severe obstruction of sunlight to one of more windows on any property. That arises from the absence of any basis upon which we could identify, accurately, which tree of group of the trees were, in fact, causing any obstruction.

112 The plantings are a dense row containing, relevantly for each property, on our estimation, at least twenty trees. Although the applicants provided us with a hand drawn north point, it would not assist us identify, with any precision, what trees in the vicinity of those properties might be causing any overshadowing (if we were to conclude that such jurisdiction invoking overshadowing existed).

113 Thus, even if we were satisfied that we have some proper evidentiary basis upon which to consider intervention under Part 2A (and we do not consider that we have, as earlier discussed), we do not have any basis upon which we could determine what orders might be appropriate.

114 Taking these four applications at their highest, however, and assuming that the two areas of uncertainty concerning overshadowing did not require dismissal of these elements of those applications, we turn to consider Mr O'Donnell's submission of prior actual or imputed notice. As earlier noted, he submitted that, as a matter of discretion, we would not order intervention under Part 2A as we should conclude that, depending on when each of these four residences came to be occupied by the relevant applicants, they either ought to have reasonably expected that such should overshadowing should occur (as the trees were at least 6 or 7 m tall at the earliest relevant date) or, in the circumstances of much more recent occupation commencements, the trees were already obstructing the sunlight to the extent that was presently occurring.

115 In considering this proposition, it is appropriate to have regard to the fact that the location of these trees and the species to be planted were specified as a condition of development consent by the council. Although it is self-evident, as evidenced by the present applications, that the species nomination by the council would, now, in hindsight, be considered to be inappropriate, the trees were nonetheless planted as required by the council.

116 It is also equally obvious, we observe, that for that element of the plantings that have been subject to crown lifting (and, as a consequence, exposure of bare trunks to approximately 3 m above the ground with no branches or foliage below that height) the visual screening purpose sought to be served by this condition of consent - to provide a visual barrier between future development and the cemetery - has been substantially compromised for any residence adjacent to trees that have been crown lifted. Indeed, it is ironic that Part 2A of the Trees Act is designed to enable the rectification of obstruction to views from properties whilst, in this instance, a number of the residents complained to us about the present lack of obstruction that the hedge of crown lifted trees provided to the view of the cemetery grounds and associated structures.

117 The crown lifting and thus removal of visual protection, has been undertaken on those trees that are in the vicinity of the McLucas and McEwan residences. Such crown lifting has not taken place with respect to the trees in the vicinity of the Holborow and Ziesig residences. There is a distinction arising from this, in our opinion.

118 Although all the trees have been planted pursuant to a condition of development consent for the purposes earlier set out, those adjacent to the McLucas and McEwan residences no longer fulfil that particular function whilst those adjacent to the Holborow and Ziesig residences could be regarded as so doing. The consequence of this, in our opinion, is that although the development consent factor issue should continue to weigh in favour of the trees adjacent to the Holborow and Ziesig residences, it has less weight for those adjacent to the McLucas and McEwan residences.

119 Mr and Ms McLucas commenced occupying their residence in 2006. Mr and Ms McEwan commenced occupying their residence in 2010. In each instance, we are satisfied that the extent of the obstruction of sunlight to any relevantly affected window, even taking the relevant applicants' case at its highest and assuming that such obstruction is severe, would have been an obstruction of which they were aware at the time they took up residence in their dwelling. As a consequence, although there is less reason to retain these trees for immediate visual amenity purposes, they nonetheless form an element of a continuous and attractive belt of vegetation separating the cemetery from the adjacent residential development. As a further consequence, on balance, if we were to get this far (which we are satisfied we do not) we would not order removal of the trees adjacent to the McLucas or McEwan residences as a matter of discretion.

120 A modestly different position arises with respect to Ms Holborow's residence, in her case, she built the dwelling and is an original occupant of it. The photographic evidence that she has provided causes us to conclude that she should have known or, if she had made reasonable enquiries, would have been informed of the likely future growth and hedging effect of these trees.

121 In the case of Mr and Ms Ziesig, they took up residence somewhat later, in 2005, when the trees adjacent to their rear boundary would have been somewhat taller than was the position for Ms Holborow and thus the state of knowledge that should be imputed to them is higher.

122 In both these two instances, the trees continue to serve the screening purpose for which the development consent condition required that they be planted. Both these are powerful factors, even if the earlier hurdles to considering discretionary matters under Part 2A were regarded as overcome. As a consequence, as a matter of discretion, even if the necessary prerequisite knowledge were available to us (which, as we have earlier noted, repeatedly, it is not) we would not consider it appropriate to make orders requiring the removal of these trees.

123 As we have concluded that there is no basis upon which we could or it would be appropriate to order removal of any of the trees on the basis of severe obstruction of sunlight to a window of a dwelling, it is unnecessary for us to consider the propositions advanced by Mr O'Donnell, founded on Mr Taylor's evidence, that ordering removal of the trees would, in itself, create unacceptable risks for other residents.

Conclusion

124 Although there are undoubtedly unintended adverse impacts arising from the (now) inappropriate species selection imposed as a condition of development consent by Wollongong City Council at the time the council approved the cemetery, for the range of reasons set out throughout this judgment, there is no proper basis upon which we either could or should order the removal of any of these trees or order any other intervention with respect to them.

125 It therefore follows that, in each application, it is necessary to order the dismissal of the application.

Orders

126 In Matter no: 21182 of 2012, the application is dismissed.

127 In Matter no: 21183 of 2012, the application is dismissed.

128 In Matter no: 21184 of 2012, the application is dismissed.

129 In Matter no: 21185 of 2012, the application is dismissed and exhibit B is returned.

130 In Matter no: 21186 of 2012, the application is dismissed.

Tim Moore

Senior Commissioner

Judy Fakes

Commissioner of the Court

Decision last updated: 04 April 2013