Land and Environment Court New South Wales

• Medium Neutral Citation: Lambert v Muir [2014] NSWLEC 1101
• Hearing dates: 28 May 2014
• Decision date: 28 May 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1)The application is upheld in part.

(2)Within 60 days of the date of these orders Mr Muir is to engage a suitably qualified arborist (minimum AQF level 3) to remove trees #1 and #2 to no more than 300mm above ground level and to poison the stumps. The works must be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3)Within 60 days of the date of these orders Mr Muir is to engage a suitably qualified arborist (minimum AQF level 3) to prune trees #4 and #5 to provide at least 1 metre of clearance between the trees and structures (TV antenna, TV receiver, roof guttering). The works must be done in accordance with the general and specific provisions of AS4373: 2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4)Mr Muir is to give Mrs Lambert three days' notice of the above works.

(5)Mrs Lambert is to provide all necessary access for the works to be done during reasonable hours of the day.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; hedge; obstruction of views and sunlight; orders for tree pruning and removal.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kryiakides [2007] NSWLEC 292; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: APPLICANT; Robyn Lambert; RESPONDENT; Robert Muir
• File Number(s): 20148 of 2014

Judgment

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

The application

1 Mrs Lambert ("the applicant") has lived in Wangi Wangi since the mid-1990s. Early on, she enjoyed from her dwelling broad views of the nearby lake and surrounding landscape.

2 Mr Muir ("the respondent") has lived next door to Mrs Lambert since around 2000. He has planted trees on his property, including a row of wattles along the side boundary, a couple of gum trees in the front garden, and several others.

3 Mrs Lambert has applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 seeking orders to remove the wattles and one gum tree, and to prune a Jacaranda that overhangs her rear garden. The application is made under both Part 2 and Part 2A of the Act.

Mrs Lambert's position

4 Mrs Lambert contends that the gum tree at the front of the property is growing up beneath, and now hitting, the electricity service wire to her dwelling. She says the tree's movement in the wind is likely to damage the wire or may cause a fire.

5 Mrs Lambert contends that the Jacaranda tree overhanging her rear garden blocks sunlights to her clothesline, making it difficult to dry her laundry.

6 Mrs Lambert claims that the wattles cause her health issues, specifically breathing problems and respiratory infections due to her allergic reaction to their pollen. She provided a doctor's letter to support this. She also says the trees drop large amounts of debris, mainly leaves and seedpods and that, due to health issues, she finds it difficult and painful to clean up. She says debris makes a mess, stains her paving, damages the paint on parked cars and blocks her pool filter.

7 Regarding the wattles, Mrs Lambert also submits that they obstruct views of the lake that she once enjoyed, from her lounge room chair and from the front porch.

8 Mrs Lambert says she has tried, unsuccessfully, to negotiate solutions to these issues with Mr Muir.

Mr Muir's position

9 Mr Muir says the trees provide privacy and habitat. The Jacaranda existed on his property when he purchased it; he planted the wattles and the gum tree. He grows orchids in his garden and the trees provide shade for them. He says there has been unwanted communication over the boundary and that the trees contribute to much-needed privacy.

10 Mr Muir says he has told Mrs Lambert that she can remove overhanging limbs from the Jacaranda.

11 Regarding Mrs Lambert's allergic reactions, he says there may be other causes, and there is no evidence that the wattles are the cause.

Onsite view

12 The gum tree at the front is about 5 metres tall. Only small shoots are touching the service wire at present.

13 One or two long limbs from the Jacaranda at the rear overhang Mrs Lambert's clothesline and would shade the clothesline during parts of the day throughout much of the year.

14 There are six wattles in all, which I will number from the front. They are 7-9 metres tall. Trees #1 and #2 are forward of Mrs Lambert's dwelling; trees #3-6 are alongside her dwelling. The wattles overhang the boundary. Branches of trees #4 and #5 grow against the roof guttering, television antenna and a pay-television receiver.

15 From the glass door near Mrs Lambert's lounge room chair, views of the lake are obstructed by trees #1 and #2. Other more distant trees also obstruct parts of that view.

Findings

16 All trees subject to the application are on Mr Muir's property, which is land adjoining Mrs Lambert's. Mrs Lambert has made some reasonable effort to resolve her issues with Mr Muir.

Part 2: injury

17 When the risk of injury pertains to an allergic reaction or similar medical condition, medical or arboricultural evidence is required under Direction 6 and Supplementary Directions given to the parties by the Court on 22 April 2014. The letter of Dr Adrian Graham, dated 6 May 2014, does not include the required expert witness statement and does not give evidence of any allergic reaction. Dr Graham merely states that "Mrs Lambert feels her allergy to the wattle trees on a neighbouring property is a trigger for her hayfever and subsequent infections." While this may be the case, there is nothing in the letter that demonstrates that these wattle trees are causing Mrs Lambert's health issues. I cannot be sufficiently satisfied of a nexus between wattle pollen and an allergic reaction.

18 Debris falls from the wattles as it falls from most trees. While I appreciate that, due to her physical condition Mrs Lambert finds it difficult and painful to clean up debris, I do not accept that the trees are directly causing her injury. Even if I were to accept that to be the case, the Court established the following principle in Barker v Kryiakides [2007] NSWLEC 292:

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.

19 There is nothing about this situation that would lead me to depart from that principle.

20 As a consequence of the above, the application regarding injury is dismissed.

Part 2: damage

21 Only small shoots of the gum tree are touching the service wire. No damage has been caused and I find that damage is unlikely in the near future, which the court has consistently regarded as a period of 12 months (see Yang v Scerri [2007] NSWLEC 592).

22 Branches of trees #4 and #5 may, in the near future, damage roof guttering, the television antenna and the pay-television receiver. Pruning these trees to provide one metre of clearance between branches and these structures would prevent such damage.

Part 2A - Jacaranda

23 The Jacaranda pre-existed the other trees. It is not part of a planted hedge. It may obstruct sunlight to a clothesline, but not to the window of a dwelling. Under Part 2A of the Act, the Court does not have jurisdiction to make orders for this tree.

Part 2A - wattles

24 The Wattles were planted at one time, at somewhat regular spacings, in a line near the common boundary. Mr Muir stated that they were planted to screen the neighbouring dwelling and to provide privacy. I am satisfied that they were planted so as to form a hedge.

25 Although other distant trees partially obstruct views of the lake, a view of the one large section of the lake that would otherwise be seen from the dwelling is obstructed by trees #1 and #2. It is a significant view and the dwelling appears to have been designed to take advantage of that view. In my mind, the value of that view, and the extent to which it is blocked by these trees, equates to a severe obstruction. Other trees in the hedge do not severely obstruct views of the lake, only views further to the east or south. Pruning trees #1 and #2 to restore lake views would reduce the trees' canopies severely and may lead to the death of these two trees. Removal would be the most suitable way to restore the view.

26 There is no severe obstruction of sunlight, as the wattles' canopies allow dappled light through to windows.

Privacy

27 I note that removal of trees #1 and #2, and pruning of trees #4 and #5, would not significantly impact on Mr Muir's privacy. Trees #1 and #2 are forward of the Lambert dwelling. Pruning would result in the loss of less than 30% of the canopies of trees #4 and #5.

Orders

28 Considering the foregoing, the orders of the Court are:

(1) The application is upheld in part.

(2) Within 60 days of the date of these orders Mr Muir is to engage a suitably qualified arborist (minimum AQF level 3) to remove trees #1 and #2 to no more than 300mm above ground level and to poison the stumps. The works must be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3) Within 60 days of the date of these orders Mr Muir is to engage a suitably qualified arborist (minimum AQF level 3) to prune trees #4 and #5 to provide at least 1 metre of clearance between the trees and structures (TV antenna, TV receiver, roof guttering). The works must be done in accordance with the general and specific provisions of AS4373: 2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) Mr Muir is to give Mrs Lambert three days' notice of the above works.

(5) Mrs Lambert is to provide all necessary access for the works to be done during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

Decision last updated: 29 May 2014