Land and Environment Court New South Wales

• Medium Neutral Citation: Grady v St Vincent & anor [2014] NSWLEC 1202
• Hearing dates: 1 October 2014
• Decision date: 01 October 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Potential damage to property and risk of injury; Hedge - sunlight and views
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kryiakides [2007] NSWLEC 292; Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Tooth v McCombie [2011] NSWLEC 1004; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mr F P Grady (Applicant); Mr G St Vincent and Ms P St Vincent (Respondents)
• Representation: Applicant: Mr F P Grady (Litigant in person); Respondents: Mr T McGrath (Solicitor); Respondents: Johnson & Sendall
• File Number(s): 20458 of 2014

Judgment

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

1 COMMISSIONER: The applicant has resided on his Goulburn property since 1962. The respondents purchased their home about 17 years ago. About 10 years ago the respondents planted a number of trees along their rear southern boundary, close to the dividing fence between the parties' properties. Apart from these trees, a number of others pre-existed their purchase of the property and other trees were planted at other times.

2 The applicant has applied under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for orders seeking the pruning of a number of the respondents' trees to a height of between 0.5 and 1.0m above the fence and their subsequent maintenance at that height.

3 The applicant thinks it wrong that anyone can plant trees that overhang someone else's property. In an effort to resolve the matter, the respondents have had a number of trees in their backyard severely pruned.

The Part 2 application

4 The key jurisdictional test in Part 2 is s 10(2). This states:

The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or

(b) is likely to cause injury to any person.

5 This must be applied to each of the trees the subject of the application.

6 The diagram in the application does not accurately reflect the number of trees on the respondents' property. It was agreed at the hearing that the trees to be considered are:

• Tree 1 - a Bottlebrush growing in the respondents' front garden near the southern corner of their dwelling. This tree is close to the fence and potentially overhangs the applicant's garden bed located along the fence.
• Tree 2 - a Japanese Maple planted about 10 years ago. This tree is located between the southern end of the respondents' rear deck and the dividing fence and within view of the applicant's kitchen window.
• Trees 3 - 5 comprise a row of about 5 or 6 Pittosporum sp. planted about 10 years ago.
• Tree 6 - a Pittosporum sp. planted about 16 years ago and several metres from the other Pittosporums.

7 The applicant contends that all of the trees pose a risk of injury because he says he has to climb a ladder to prune overhanging branches. As he is an older gentleman who requires a walking stick, he is concerned about falling off the ladder.

8 The application also raises concerns about the risk of slipping on leaves, which fall from the respondents' trees onto the applicant's concrete path.

9 In regards to damage, the applicant is concerned that roots from trees 2-3 may in the near future cause damage to the drainage pipes from his kitchen.

Findings - Part 2

10 In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. I consider this is a reasonable time frame in these circumstances. 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, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

11 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...".

12 The applicant stated that about 10 years ago he hired an electric eel and cleared the pipes of roots, however he has had no problems since then. It is highly unlikely that the nominated trees could have been the cause of any blockage as they were only planted about 10 years ago. While there is a theoretical possibility that roots may enter pipes, in particular old and or damaged pipes, and cause blockages, there is no evidence to suggest that this is likely to happen in the near future.

13 In regards to injury, s 10(2)(b) requires that the tree concerned is likely to cause injury to any person. The 'tree' includes all parts of the tree. There is no evidence that any injury to any person has been caused by any of the trees. With the expertise I bring to the Court I saw no structural defects, dead wood or any thing else that would lead me to conclude that any of the trees are likely to cause injury to any person.

14 I am not satisfied that s 10(2)(b) can be construed to extend to a person's decision to climb a ladder in order to access a tree. There must be a nexus between the tree and damage to property or injury to any person.

15 Similarly in considering the applicant's submission about the potential for slipping on leaves. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paras 168 to 173 discusses 'damage' in general. In this discussion, his Honour specifically noted (at para 171) that:

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

16 His Honour's discussion would equally apply to overhanging branches, which might be annoying, but unless they satisfy any of the elements of s 10(2), they are beyond the Court's jurisdiction under the Trees Act.

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

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

18 There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis. And so it is with this matter, I am not satisfied there is any evidence of exceptional circumstances that would lead me to deviate from the application of this Principle and make any orders for any intervention with any of the trees. At the time of the hearing, Tree 2, the only tree close to the path, had been pruned away from the fence.

19 Therefore after considering the evidence before me I am not satisfied that any element of s 10(2) is met for any of the nominated trees and the application under Part 2 is dismissed.

The Part 2A application

20 The applicant contends that the respondents' trees (except Tree 1) severely obstruct sunlight to and views from his kitchen window. He also maintains that the trees severely shade his back garden. Many of the photographs included in the application show shading of the garden.

21 Section 14B enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling or any view from a dwelling (situated on the applicant's land).

22 The Trees Act does not apply to obstruction of sunlight to gardens.

23 In applications under Part 2A there are a number of jurisdictional tests, which must be sequentially satisfied. The first of these is whether the trees the subject of the application are planted so as to form a hedge.

24 The respondents agreed that the row of Pittosporums planted about 10 years ago was planted so as to form a hedge and it remains so. The respondents planted the Japanese Maple (Tree 2) at the same time but in their opinion it was planted as a specimen and not as part of the hedge. The other Pittosporum (Tree 6) was planted as an individual some 6 years earlier.

25 I accept that the row of Pittosporum (excluding Tree 6) satisfies s 14A(1). I don't consider Tree 2, the Maple, to be part of the hedge, however if I am wrong in this, I have taken it into account in terms of its impact on the applicant's views and sunlight.

26 The next relevant test is s 14E(2)(a) which 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.

27 If either element of s 14E(2)(a) is met then the Court must consider the balancing of the parties' interests in s 14E(2)(b) before the Court's powers to make orders can be engaged. Determination of s 14E(2)(b) requires consideration of a number of discretionary matters in s 14F.

Sunlight

28 As stated above, the Trees Act does not apply to obstruction of sunlight to gardens, only to windows of a dwelling on the applicant's land.

29 The window in question is the northeast-facing kitchen window. The applicant did not provide any shadow diagrams or any other evidence to demonstrate the impact of the respondents' trees on sunlight to this window. One photograph dated 29/04/2014 (but with no time stamp) shows the trees before they were pruned. The window appears to be in shadow however it is not clear whether the shading is as a consequence of the trees or of the fixed awning above it or shade cast by the respondents' dwelling which is only several metres from this window.

30 The use of the word 'are' in s 14E(2)(a) requires the trees the subject of the application to be severely obstructing the sunlight (or view) at the time of the hearing, being the time of the determination of the matter (see Tooth v McCombie [2011] NSWLEC 1004 at paragraphs [14]-[15]). It is highly probable that apart from the trees, things other than the trees were obstructing most of the sunlight to this window when the application was made. However, now that the trees have been pruned the applicant agreed they were not a problem at the moment.

31 On the evidence before me I cannot be satisfied that s 14E(2)(a)(i) is met and the application with respect to sunlight must be dismissed.

Views

32 The applicant contends that the respondents' trees obstruct his view of the beacon from the war memorial on Rocky Hill in the night sky. Any view of the sky in the direction of that beacon is a very oblique view that is highly constrained by the rear of the respondents' dwelling and a large tree some distance away on another property. The principal view from the applicant's kitchen window is the wall of the respondents' house and to some extent, Tree 2 and the deck behind it. It would appear from the layout of the applicant's dwelling that the view of the beacon is available from other parts of it.

33 In any event, the trees have been recently pruned and the distant, oblique view of the sky is visible. Therefore I find that s 14E(2)(a)(ii) is not met and therefore that element of the application is dismissed.

Conclusions and orders

34 After viewing the site and considering the evidence, the Orders of the Court are:

(1) The application is dismissed.

______________________

Judy Fakes

Commissioner of the Court

Decision last updated: 02 October 2014