Land and Environment Court New South Wales

• Medium Neutral Citation: Watman v Lynch & ors [2014] NSWLEC 1079
• Hearing dates: 8 May 2014
• Decision date: 08 May 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

The application is dismissed.

• Catchwords: TREES [NEIGHBOURS] Damage to property - dahlias
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148; Robson v Leischke [2008] NSWLEC 152; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mr R Watman (Applicant); Mr M Lynch (First Respondent); Ms P Peacock (Second Respondent); Impak Australia Pty Ltd (Third Respondent); Mr P Dean (Fourth Respondent); Ms K Dean (Fifth Respondent)
• Representation: Applicant: Mr R Watman (Litigant in person); First and Third Respondents: Mr M Lynch (Litigant in person/ agent); Second Respondent: Ms P Peacock (Litigant in person); Fourth & Fifth Respondents: Mr P and Ms K Dean (Litigants in person)
• File Number(s): 20082 of 2014

Judgment

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

1 COMMISSIONER: The applicant in these proceedings has lived in the village of Burrawang for 37 years. During that time he has grown dahlias, and other bulbs, annuals and soft-wooded perennials in a garden bed along his southern boundary.

2 In November 2012, the first, second and third respondents (the respondents) planted a Leyland Cypress hedge along the northern boundary of their property, adjoining the applicant's garden bed.

3 In material tendered by the respondents, they state that they consulted their neighbours in regards to their intention to plant a hedge around their property for screening and privacy purposes. The respondents showed the applicant photographs of local hedges to demonstrate how they intended to maintain the hedge - relatively low and tightly clipped.

4 At the time, the applicant raised no objections, although at the hearing he stated that he asked that the trees not be planted too close to the dividing fence so any pruning and maintenance could be carried out from the respondents' property.

5 As part of the renovations to their cottage and associated landscaping, the respondents requested the replacement of the old, and reportedly, unattractive, wire fence that divided the parties' properties with a new paling fence. As the applicant wished to retain the wire fence, the respondents replaced and upgraded it at their expense.

6 In January 2014, the respondents received a letter from the applicant raising concerns that the hedge had not been pruned. The respondents wrote back explaining they had problems with getting a contractor over Christmas and that the hedge would be pruned.

7 In February 2014 the respondents received a letter from the applicant advising them that he would be seeking assistance from the Land and Environment Court in dealing with his concerns about the hedge.

8 The application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 1979 (the Act) was filed with the Court on 18 February.

9 Not long after, the respondents sold their property to the fourth and fifth respondents (the new owners). The applicant amended his application to include the new owners.

10 The orders sought by the applicant are:

• Trees along dividing fence be removed due to their being inappropriate for that location.
• Alternatively - that a permanent root proof barrier be installed between the trees and the fence to prevent damage to my long established flower garden.

11 The application applies to 22 trees. The applicant's contention is that the trees are planted very close to the fence (about 350mm away) and their stronger, more competitive roots have grown under the fence and are drawing moisture and nutrients out of the garden. This is having an adverse effect on the flower garden, causing poor growth and poor quality flowers. He states that most of his dahlias only attained half their normal size and some produced no flowers, despite being watered and fertilised normally. The applicant states that this was the worst display in his 37 years of gardening on his property.

12 The applicant discovered some roots from the Leylands some 500mm into the garden bed. Some of these fine roots were observed during the hearing. It is his contention that the poor performance of his dahlias, being the damage to his property, is due to competition from the roots of the Leyland Cypress trees.

13 In attempting to resolve the matter, as suggested by the applicant, the respondents offered to install a root barrier. To do this in the most efficient manner they planned to remove the new wire fence, install the barrier, and then replace the fence. They proposed to carry out the works in winter when most of the plants would be dormant.

14 The applicant initially agreed to this but changed his mind when he became concerned that other plants would be sprouting and could be damaged.

15 At the hearing the second respondent stated that they had offered to replace the bulbs.

16 In applications under Part 2 of the Act, there are a number of jurisdictional tests that have to be satisfied before the Court's power to make orders under s 9 is engaged. Relevantly in this case, s 10(2) of the Act states that the Court must not make an order 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.

17 Injury is not pressed.

18 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...".

19 As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing

20 In Robson v Leischke [2008] NSWLEC 152, Preston CJ dissects and discusses the meaning of each element of Part 2 of the Trees Act. The damage must be to the applicant's property on the applicant's land [164]. At [165] - [166] His Honour states that s 7 of the Trees Act applies to physical and tangible property constituting "corporeal hereditaments". Corporeal hereditaments include buildings and other fixtures on the land, such as trees, crops and plants growing in the soil of the land.

21 At [169] His Honours states (in part):

169 At common law, although damage is necessary to complete the cause of action in nuisance, the type of damage requires varies depending on the kind of nuisance involved. For nuisances of the first kind, causing encroachment as by roots and branches of trees, actual damage to the land (including property attached to or inherent in the ground) must be proved...For nuisance of the second kind, causing physical damage, actual physical damage to land (including property attached to or inherent in the ground) is also required...

22 At [170] Preston CJ states that nuisances of the first and second kind would (generally) constitute "damage to property on land" within s 7 of the [Trees] Act. Most importantly, there must be proof or evidence that any tree, the subject the application, has caused, is causing, or could in the near future cause damage to an applicant's property. It is sufficient to engage the Court's jurisdiction if the tree is proven to be 'a cause'.

23 During the hearing the applicant showed the Court, and the other parties, dahlias growing elsewhere on his property that he says are of the same stock as the ones that have performed poorly. It was evident that these plants had grown well. However, whether that is sufficient to demonstrate, to the extent required by s 10(2), a nexus between the respondents' trees and the poorly performing dahlias, is to be determined.

24 The applicant did not produce any photographic evidence of the condition of his garden prior to the planting of the trees. The applicant had not dug up any tubers to determine whether there was some other problem. For example, there was no evidence to exclude other possible causes such as pests and diseases, changes in soil chemistry or nutrition, or indeed any other factor required for the cultivation of dahlias. Some leaf damage was noted; the applicant stated that snails had been a problem. The applicant stated that the tubers had been in the ground for two years and that he dug them every three years for replanting. With the expertise I bring to the Court I observed that some authorities advise lifting dahlias each year, the applicant said that he had been following the same routine for the last 37 years and that it had worked until now.

Conclusions and orders

25 On the evidence before me, I cannot be satisfied that the 'damage', being the poor performance of the dahlias, if indeed that is 'damage', can be attributed to the respondents' trees. Even if I were to consider them a contributing factor, and thus engage the Court's jurisdiction to make orders under s9, as a matter of discretion I would not make any orders for the removal of the trees. The trees are young, healthy and still relatively small. It is entirely normal that roots from any plant growing along a common boundary will not confine themselves to the property on which they are planted. It is not unreasonable for a neighbour to plant a garden on their side of the fence.

26 In regards to the root barrier, I note the standing offer by the respondents to install the root barrier and replace any damaged plants. However, I am not satisfied to the extent required by s 10 that this is an order I can or should make.

27 While section 7 enables an owner of property to apply to the Court for orders to remedy, restrain or prevent damage to property on their land as a consequence of trees growing on adjoining land, there must be evidence to prove actual damage, at least on the balance of probabilities. If future damage is the concern, the applicant must satisfy the Court that the impending damage is substantial, irreparable and imminent.

28 As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence.

29 Therefore after considering the evidence before me, the Orders of the Court are:

(1) The application is dismissed.

_________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 12 May 2014