Land and Environment Court New South Wales

• Medium Neutral Citation: Price & anor v Harrison & anor [2013] NSWLEC 1149
• Hearing dates: 13 August 2013
• Decision date: 13 August 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; trees to be removed and replaced at applicants' expense

• Catchwords: TREES [NEIGHBOURS] Damage to property; Hedge - obstruction of sunlight; Consent orders
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kryiakides [2007] NSWLEC 292; Hendry & anor v Olsson & anor [2010] NSWLEC 1302; McDougall v Philip [2011] NSWLEC 1280; Robson v Leischke [2008] NSWLEC 152
• Category: Principal judgment
• Parties: Mr S Price & Ms R Ferguson (Applicants); Mr J and Mrs J Harrison (Respondents)
• Representation: Applicants: Mr S Price & Ms R Ferguson (Litigants in person); Respondents: Mr J and Mrs J Harrison (Litigants in person)
• File Number(s): 20465 of 2013

Judgment

1 COMMISSIONER: This matter concerns four xCupressocyparis leylandii (Leyland Cypress) trees planted at the rear of a property in Mosman.

2 The applicants have applied under s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders to be made requiring the pruning and subsequent maintenance of the trees to an appropriate height and width.

3 During the hearing, in an attempt to resolve the matter, the parties agreed to discuss some options. The parties subsequently proposed consent orders for the removal and replacement of the trees at the respondents' expense.

4 Before the Court can make the orders sought by the parties, the Court's jurisdiction to do so must be engaged.

Part 2A application

5 Dealing first with the Part 2A application. The applicants contend that the four Leyland Cypress trees severely obstruct sunlight to windows of their dwelling. The windows are north and west facing windows of the kitchen/ living area at the rear of the dwelling.

6 In applications under Part 2A, there are a number of jurisdictional tests that must be sequentially satisfied.

7 The first of these tests is s 14A(1)(a) which states that Part 2A only applies to groups of two or more trees that are planted so as to form a hedge. If this is the case, s 14A(1)(b) requires the trees to be at least 2.5m tall.

8 The trees are planted along the respondents' rear southern boundary fence. The respondents have owned their property for 17 years and they state that the trees were quite mature when they purchased the property.

9 While the person who planted the trees could not be questioned as to their intent, I am satisfied that the linear arrangement, spacings and species are consistent with the trees being planted so as to form a hedge. At the hearing, the trees were estimated to range in height from about 10m to 13m. Therefore, s 14A(1) is satisfied.

10 The next test is found in 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.

11 The applicants included professionally prepared shadow diagrams in their application claim form. The diagrams show the shadows cast by the trees and other structures at the winter solstice (21 June).

12 The height of the trees is based on a survey prepared on 5 December 2011. With the exception of the elevated north-facing window, the diagrams show that the trees obstruct most of the sunlight that could otherwise be received in the absence of the trees.

13 Therefore, I find that s 14E(2)(a)(i) is satisfied. Section 14E2(b) requires consideration of the discretionary matters in s 14F. The relevant matters are discussed below.

14 The trees are located on adjoining land and are in close proximity to the dividing fence and relatively close to the applicants' property. The trees were present when the applicants purchased their dwelling about six years ago. The parties dispute the amount by which they have grown in that time. The respondents included photographs taken in 2004 that show the trees were likely to have been about 6m tall. The applicants contend that the trees have increased in their spread and have become denser. The respondents consider that the trees have grown perhaps 3m in the period since the applicants purchased their property.

15 While no details were provided, the parties believe that Mosman Council's Tree Preservation Order is less restrictive in regards to Leyland Cypress but that permission may be required given the height of the trees. However, if the Court's jurisdiction to make the orders agreed by the parties is engaged, council permission to remove the trees is not required.

16 The trees provide a backdrop to the respondents' property however they stated that they were not wedded to their retention but were unable to afford their removal. The trees have little if any intrinsic value to public amenity.

17 In regards to the impacts of pruning, the respondents suggested a pruned height of 6m as a means of achieving a balance. Neither party obtained any independent arboricultural opinion on appropriate pruning options. With the expertise I bring to the Court I consider that pruning to this point would have a detrimental impact on the health and appearance of the trees. The trees each comprise several stems and the diameter of the trunks at this height is quite substantial. The form of the trees is such that reduction pruning in accordance with AS4373:2007 Pruning of Amenity Trees and subsequent hedging of remaining foliage would be difficult to achieve. In my view, the trees are now too large to satisfactorily reduce and maintain them and therefore the proposed consent orders for tree removal are appropriate in the circumstances.

18 While the intent of the 2010 review of the Trees Act (and its extension to include Part 2A) was not to provide an applicant with more sunlight or views than were available to them when a property was purchased (see discussion in McDougall v Philip [2011] NSWLEC 1280 at [20] - [25]), the practical outcome of the Court's orders may have this effect. So it is in this matter. While I am certain that the applicants did not have unobstructed sunlight when they purchased their property, the practical difficulties of pruning and maintaining the trees are such that removal is the most sensible option.

19 However, given the visual impact the removal of the trees will have on the respondents' property, the parties agreed that the trees should be replaced with six advanced specimens of Camellia sasanqua. These trees will provide an attractive screen but will not reach a height that is likely to severely obstruct sunlight to the applicants' dwelling.

Part 2 Application

20 While the consent orders for the removal of the trees renders this element of the application somewhat redundant, the matters raised by the applicants should be considered.

21 The key jurisdictional test in Part 2 is found in 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 about which the application is made, has caused, is causing, or could in the near future cause damage to the applicants' property or could cause injury to any person.

22 The applicants make the application with respect to damage, not injury. In essence, the applicants contend that:

• The foliage of T1 overhangs their property, interferes with the roof, and drops foliage that interferes with roof drainage;
• All trees drop foliage etc onto the garden, paved area thus resulting in cleaning and maintenance costs;
• The shadowing of the trees adversely impacts on the functioning of the garden and their enjoyment of the garden;
• Shadowing heightens the susceptibility of the property to dampness and mould requiring further cleaning costs and possible health impacts on their children; and
• The hedge causes a loss of amenity and the applicants' ability to use and enjoy their land.

23 At the hearing, the applicants were unable to produce any evidence of any physical damage to their property as a consequence of any of the trees. While the ends of the branchlets of T1 were in contact with part of the roof structure, there was no evidence of any damage. Similarly, there was nothing to demonstrate that the leaf litter had caused damage or was likely to do so in the hear future.

24 In Robson v Leischke [2008] NSWLEC 152 Preston CJ considers, in detail, the construction and meaning of the Trees Act. In paragraphs [162] to [167] His Honour discusses 'Damage to "property on the land"'. At [165] he states in part:

165 Conventionally, land incorporates both "corporeal" and "incorporeal" components or "hereditaments". Broadly, corporeal hereditaments refer to the physical and tangible characteristics of land, while incorporeal hereditaments refer to certain intangible rights which may be enjoyed in, over or in respect of land.....

25 His Honour then concludes (at [166]) that the reference to 'property on the land' in the Trees Act refers to physical/tangible elements (corporeal hereditaments) rather than the intangible or incorporeal hereditaments.

26 In consideration of the meaning of "Damage to property" (Robson [168]-[173]) Preston CJ notes that the scope of what constitutes "damage" to property on the land is not defined in the Trees Act. His Honour then goes on to consider the common law of 'nuisance' and the various 'kinds' of nuisance. Nuisances of the 'third kind' are those that cause unreasonable interference with the use and enjoyment of land. The 'damage' in this kind consists of annoyance or discomfort caused to the occupier of the neighbouring land (at [169]).

27 At [171] His Honour states:

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, 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.

28 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.

29 There are many examples of the application of this Principle. In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [11]-[14], the Principle was extended to cover mould and slime. 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. However, as stated above, the orders in regards to sunlight will negate this issue.

30 In regards to the contention about shading of the garden, Part 2A does not apply to shading of gardens.

31 With respect to the application under s 7 Part 2 of the Trees Act, I find that no element of s 10(2) is satisfied for any of the four Leyland Cypress trees and therefore that portion of the application is dismissed.

Orders

32 After considering the matter, I am satisfied that the Court's jurisdiction to make orders under s 14D is engaged. Therefore by consent, the Orders of the Court are:

(1) The application is upheld in part.

(2) Within 30 days of the date of these orders the applicants are to engage and pay for an AQF level 3 arborist with appropriate insurance cover, to remove the four Leyland Cypress trees at the rear of 6 Vista Street Mosman. The stumps are to be ground to a depth of at least 300mm. All cut material is to be removed off site and the garden bed made good and level.

(3) The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) The respondents are to provide all necessary access on reasonable notice for the purpose of quoting.

(5) The applicants or their arborist are to provide the respondents with at least two working days notice of the commencement of the works in order (2). The respondents are to provide all reasonable access for these works to be carried out in a safe and efficient manner.

(6) Within 60 days of the date of these orders, the respondents are to purchase and plant up to 6 advanced specimens of Camellia sasanqua to replace the Leyland Cypresses otherwise order (7) lapses.

(7) The applicants are to reimburse the respondents the cost of the purchase of the plants in order (6) up to a maximum total sum of $1200.00 within 21 days of the receipt of a tax invoice for the plants.

____________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 14 August 2013