Land and Environment Court New South Wales

• Medium Neutral Citation: Ardagh v Ellston [2012] NSWLEC 1235
• Hearing dates: 21 August 2012
• Decision date: 23 August 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Removal of two trees on the basis of preventing future damage; Application to remove trees under Part 2A dismissed.

• Catchwords: TREES [NEIGHBOURS] Damage to property - fig tree roots; adequacy of evidence and sufficiency of damage. Hedges - obstruction of sunlight and views; do the remaining trees constitute a hedge for the purpose of the Act; influence of other factors on views and sunlight.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Guardianship Act 1987
• Cases Cited: Robson v Leischke [2008] NSWLEC 152; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Riachi v Kerslake [2010] NSWLEC 1153; Holden v Smith [2011] NSWLEC 1066; Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122; Johnson v Angus [2012] NSWLEC 192
• Category: Principal judgment
• Parties: Mr Robert Ardagh (Applicant); Mr Harry Peter Ellston (Respondent)
• Representation: Applicant: Mr Robert Ardagh (Litigant in person); Respondent: Mr Peter Ellston (Agent/ Tutor)
• File Number(s): 20569 of 2012

Judgment

1 COMMISSIONER:This is an application made under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by Mr Ardagh against Mr Ellston, the owner of a number of trees growing on an adjoining property. The properties are located in Terrigal.

2 Mr Ardagh claims that Ficus benjamina (Weeping Fig) trees near the western boundary of Mr Ellston's property have caused and will continue to cause damage to his property. He also contends that most of the trees were originally planted as a hedge and the remaining trees now severely obstruct sunlight to windows of his dwelling and views from his dwelling.

3 Mr Ardagh seeks orders for the removal of seven nominated Fig trees, the removal of roots from his property, as well as remediation of his land, the dividing fence and driveway. He also seeks compensation for the application filing fee.

4 With respect to the last order, Commissioners do not have the jurisdiction to award such costs. A separate Notice of Motion must be lodged for the matter to be heard by a Judge or Registrar of the Court.

5 Mr Ellston was unable to attend the hearing for medical reasons. His son, the designated Tutor in these proceedings and his appointed financial manager under the Guardianship Act 1987 represented him. Mr Ellston jnr does not oppose some tree removal but would prefer any removals to be staged for financial reasons and to minimise the stress it may cause his father.

6 The hearing was held on site and commenced with an inspection of the trees on the respondent's land. The alleged damage and loss of views and sunlight were assessed from the applicant's land and dwelling.

The trees and relevant background

7 Mr Ardagh purchased his property in 1987. He believes the original house was built in about 1967 and that the driveway was installed at about that time. According to Mr Ardagh, sometime after he moved in, he approached his neighbour about building a fence between the two properties. Mr Ardagh contends that this was opposed by Mr Ellston snr.

8 Mr Ardagh stated that he planted some smaller growing native plants along the boundary. It seems that these did not survive. In about 2000, Mr Ellston planted ten Weeping Figs along the boundary as well as others elsewhere in the backyard. Mr Ardagh stated that some of the Figs were planted on his property. In oral evidence, Mr Ardagh stated that the trees along the boundary were relatively regularly spaced between a number of large and existing (likely remnant) Eucalypts growing in the vicinity of the boundary and on both parties' properties.

9 The sheet metal dividing fence was erected in 2001. At a later stage, Mr Ardagh placed a layer of bricks below the fence in order to prevent the escape of a pet rabbit.

10 Of the ten trees originally planted along the boundary, six appear to have survived; five of these are subjects of the application. The trees are numbered generally from north to south. Tree 1 is located near the north-western corner of Mr Ellston's property in the front garden. Tree 2 is to the west of his dwelling, and the remaining trees are in the respondent's backyard. Trees 2, 3, 4 and 5 are within 0.5 - 1.5 metres of the dividing fence. Trees 6 and 7 are approximately 5 metres from the fence and more than 5 metres apart. Mr Ardagh was unaware of an additional small and very suppressed Fig to the north of Tree 2. The Figs are approximately/ on average about 10 metres tall.

11 As mentioned above, there are five large, established and likely remnant eucalypts growing along or near the common boundary. Their general location is shown on the diagram in the applicant's claim form for Part 2A. In addition to the five eucalypts along the boundary, there is another very large eucalypt in Mr Ellston's backyard to the east of trees 6 and 7. There are also several tall palms in Mr Ellston's property and in Mr Ardagh's front yard. There are also a number of other tall trees, including Silky Oaks, in Mr Ellston's front yard and along the boundary with the property to the north. The Eucalypts are perhaps 18-20m tall.

The application under Part 2 - damage

12 Mr Ardagh contends that the roots from the Figs have damaged several elements of his property; he is also concerned about future damage. The elements to be considered are the driveway, dividing fence, the backyard lawn and soil, sewer, walls and slab of the house, and in-ground swimming pool.

13 In applications made under Part 2, a key jurisdictional test is satisfaction of s 10(2) of the Act. This states that the Court must not make an order unless it is satisfied that any of the trees concerned have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are likely to cause injury to any person.

14 In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [176] to [180] discusses the requirement for a nexus between the tree the subject of the application and the alleged damage to the property. It is sufficient for the tree to be ' a cause' of damage to engage the jurisdiction. 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...".

15 If any one of the tests in s 10(2) is satisfied for any of the trees the subject of the application, then the Court's powers under s 9 of the Act to make any orders it thinks fit to remedy, restrain or prevent damage or injury, are engaged. There is no obligation to make the orders desired by either of the parties. If no tests are met, then the Court cannot make any orders.

The driveway

16 The driveway is thought to be contemporaneous with Mr Ardagh's house - that is, constructed in the late 1960s. It comprises two concrete wheel strips; the slabs are about 100mm thick. It was established at the hearing that the slabs are unlikely to have any reinforcing. The driveway slopes up from the street level and the wheel strips extend up the slope for about five or six metres.

17 The wheel strips are in several sections; overall the wheel strips show signs of wear and tear including many cracks. The applicant contends that roots from Tree 1 have lifted and cracked the wheel strips. Mr Ardagh showed me where he had cut one root of about 100mm in diameter that had been growing under the wheel strip closest to the tree. Part of the root was visible beneath the slab. Mr Ardagh stated that he thought other roots would be under other parts of the wheel strips but he was unable to show me those roots.

Findings - The driveway

18 There is demonstrated evidence that one root from Tree 1 has caused damage to the driveway. Therefore s 10(2) is satisfied for that tree. However, in determining what if any orders are appropriate in the circumstances, I must consider a number of discretionary matters in s 12 of the Act. The following clauses are relevant.

• Tree 1 is growing on the respondent's property (s 12(a));
• Some root pruning along the applicant's side of the boundary will have little impact on the health or stability of the tree; the applicant has already cut one root and this appears to have had no impact on the tree's health (s 12(b2));
• The tree contributes to the privacy, landscaping, natural landscape and amenity of the respondent's property; as it can be seen from the street it also contributes to public amenity (s 12(b3),(e),(f));
• The driveway strips are about 45 years old and are showing other signs of wear and tear that is unlikely to be indicative of root damage.
• The applicant has taken steps to prevent future damage and the root does not appear to have re-grown (s 12(h)(ii)).

19 While I accept that the tree root has caused a minor portion of the damage to one of the wheel strips, I am not satisfied that the orders the applicant seeks (tree removal and rectification of the driveway) are appropriate. Indeed, the evidence before the Court is that the contribution of the root to the damage is so limited as to not warrant any order of the Court. Mr Ardagh has demonstrated that the simple severing of a root is enough to prevent further damage. In my view, the major contributing factors to the current condition of the driveway strips are their age, the slope on which they rest, erosion over many decades, and frequent use. There is nothing to prevent Mr Ardagh undertaking similar root pruning should the need arise.

20 As a consequence, the application under Part 2 with respect to the driveway is dismissed.

The sewer

21 Mr Ardagh contends that roots from Tree 1 caused a blockage of his sewer near the connection to the main sewer. He stated that some time ago a plumber extracted a dense mat of roots from the pipe. At the hearing he showed me some of those roots but no evidence was adduced as to what species of plants the roots belonged to. The inspection pit is located in a garden bed at the front of Mr Ardagh's property. There are several palms and other plants in that garden bed and the nearest tree is a Jacaranda street tree. While I can't recall if it was present at the hearing, a photograph tendered by the applicant showing his front yard, also shows an Umbrella Tree in the applicant's front yard which is closer to the sewer pipe than Tree 1.

Findings - sewer

22 While it is possible that roots from Tree 1 may have entered the sewer, the applicant was unable to adduce any evidence to satisfy the Court that this tree was responsible, even in part, for a past blockage of his sewer. Given the presence of so many other trees and shrubs on the applicant's property and on the street, it is possible that roots from other plants caused the blockage. There was no evidence presented, such as a report from the plumber, to indicate when the blockage occurred or precisely where the blockage occurred.

23 As there is nothing to prove the nexus between Tree 1 and the sewer, s 10(2) is not satisfied and that element of the application is dismissed.

Metal fence and footings

24 The metal fence starts to the east of Tree 1. Mr Ardagh drew my attention to a section of displaced fence between Tree 1 and Tree 2. Mr Ardagh contends that the roots from the Figs displaced the fence however he was unable to show me any roots. I observed a number of shrubs on the applicant's land that were pressing against the fence.

25 As stated above, the fence is metal and the applicant has put an unmortared layer of bricks at the base of the fence. At the hearing, the applicant did not show me any damage to any footings of the fence so it is unclear to me as to whether the bricks form the 'footing' or whether the applicant is concerned about the supporting posts and their footings.

26 Mr Ardagh contends that roots from Trees 2, 3, 4, and 5 are causing damage to the metal fence by growing under the fence and deflecting it. I saw surface roots from Trees 2-7 on the respondent's property. Some of the roots from Trees 2-5 appeared to go under the fence. The applicant was unable to show me any roots from Tree 2 on his property or any damage to the fence immediately adjoining Tree 2.

27 Despite the size of the roots on the respondent's side of the fence (shown in several photographs tendered with the application) I noticed very little vertical displacement of either the fence or the layer of bricks. In the south-eastern corner of his property Mr Ardagh has exposed fig roots that have grown under the fence and into his property. These are most likely from Tree 5. Again, despite their relatively large size, there was no significant displacement of the fence in that area.

28 The fence was clearly displaced by the pressure of the trunks of three eucalypts, two of which are on the applicant's property. Mr Ardagh is not concerned with this deflection and during the hearing he stated that it had been quite difficult to install the fence around these trees.

29 I saw no evidence to indicate that roots from trees 6 and 7 had caused any damage to the fence or the row of bricks.

Findings - the fence

30 I find there is insufficient evidence to prove that the roots of any of the Figs have caused any real damage to the fence. There may be some very minor vertical displacement along the fence but it is barely discernible. In my view, the majority of the displacement elsewhere has been caused by the applicant's shrubs or by the growth of eucalypts the parties wish to retain.

31 For example, in regards to the displacement between Trees 1 and 2, the only likely cause of the displacement that I could see are some shrubs on the applicant's property that are in contact with the fence. As the fence was leaning away from these shrubs, and in the absence of any roots, it is not unreasonable for me to reach the conclusion that the displacement of that section has been caused by the applicant's plants.

32 Similarly, there is insufficient existing damage to the fence as a consequence of the Figs to warrant an order of the court for its rectification.

33 However, given the relatively young age of the trees, the growth characteristics of the species, and in particular the close proximity of Trees 4 and 5 to the fence - within one metre, I am satisfied that these two trees could, in the near future, cause damage to the dividing fence. The guidance decision in Yang v Scerri [2007] NSWLEC 592 puts the 'near future' as a period of 12 months from the time of the hearing. In my opinion, these are the only trees likely to cause damage in that time frame. I also consider that time frame appropriate in the circumstances.

34 Therefore, s 10(2) is satisfied for trees 4 and 5. While this species is relatively tolerant of root pruning, given the proximity of the trees to the boundary, I consider removal to be appropriate in the circumstances.

35 Once the trees are removed and the stumps poisoned, the roots on the applicant's property will die. I see no reason to make an order requiring the respondent to remove the roots on the applicant's side of the fence as no damage has been caused (see below).

Other damage

36 In his application, Mr Ardagh contends that there are surface roots from all of the nominated trees through his property, particularly the backyard, and these have caused damage to the land and to the lawn by creating undulations.

37 He also states that the roots from Tree 5 have reached the western wall of the in-ground swimming pool and that their continued growth will cause major catastrophic failure. Similarly he contends that the roots from all of the trees have the potential to reach the house and cause structural damage to it.

38 The closest edge of the pool coping is about 3.5m from the dividing fence. The closest tree is a remnant eucalypt; Tree 3 is the closest Fig - some 5m away. Mr Ardagh was unable to confirm his contention that roots had reached the western wall of the pool, as there was no excavation along that wall. No cracks in the pool or the pool coping were shown to me.

39 Apart from the far south-eastern corner of the applicant's land where Mr Ardagh had exposed roots and therefore removed whatever vegetation covered that area, I saw no signs of damage to the lawn. Indeed I commented that the lawn appeared in good condition for the time of the year and the relatively shady conditions (notwithstanding the fact that the lawn comprised a shade-tolerant cultivar). Similarly I did not detect any noticeable undulations, but even if I had, Mr Ardagh did not show me any consequential damage to any other property.

40 Mr Ardagh also stated that he wished to pour a concrete slab on which to build a shed but was unable to do so because of tree roots.

Findings - other damage

41 The issue of damage to "property on the land", as raised in s 7 of the Act, is discussed by Preston CJ in Robson at [166]. In part, the Chief Justice found:

Hence, damage caused by a tree's roots to buildings, fences, paving or other structures, or to fruit trees, crops, ornamental gardens or other vegetation growing on a neighbour's land, may be covered by the Trees [Act] but damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees [Act]..

42 In accordance with this finding in Robson, as Mr Ardagh has not provided any evidence of consequential damage, either current or imminent, the issue of undulations in the lawn is not one that can be remedied by the trees Act. The potential structural damage to the house and pool is a theoretical possibility for which no evidence has been provided.

43 Therefore as s 10(2) is not satisfied for any of these elements of the applicant's property, the application with respect to them is dismissed. Mr Ardagh may take some comfort in the orders to remove trees 4 and 5 on the basis of future damage to the fence.

44 In regards to the shed Mr Ardagh wishes to construct, the presence of roots is not one that can be dealt with under the Trees Act as the Act does not apply to structures that have not been built [see Riachi v Kerslake [2010] NSWLEC 1153 and Holden v Smith [2011] NSWLEC 1066].

The application under Part 2A - sunlight and views

45 Mr Ardagh contends that the Fig trees severely obstruct sunlight to windows of his dwelling and views from his dwelling.

46 In applications under Part 2A, there are a number of jurisdictional tests to be satisfied. The assessment pathway is discussed in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122.

Section 14A(1)

47 The first test to be satisfied is found in s 14A(1). This states that:

This Part applies only to groups of 2 or more trees that:

(a)are planted (whether in the ground or otherwise) so as to form a hedge, and

(b)rise to a height of at least 2.5 metres (above existing ground level)

48 In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of this section. The requirement is that the trees must be 'planted' rather than self-sown, planted with the intent of forming a hedge, and continue to form a hedge. At [43] Preston CJ states in part:

...The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are subject to the application under s 14B of the Trees Act be 'trees that are planted...so as to form a hedge'. As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue that state of affairs of being planted so as to form a hedge. The requirement of having been planted so as to form a hedge is to be understood as requiring the trees to be planted in order to form a hedge, or with the result or purpose of forming, a hedge.

Findings - s 14A(1) and other jurisdictional tests

49 There is no dispute between the parties that Mr Ellston snr planted ten Fig trees along the common boundary in order to form a hedge. However, Trees 6 and 7 are not part of that original planting along the boundary and, in my view, are individual specimens too far apart to be perceived by any reasonable person as being planted so as to form a hedge. The applicant accepts this proposition.

50 Therefore, as s 14A(1)(a) does not apply to trees 6 and 7 the Court has no jurisdiction to make any orders under Part 2A for any interference with them.

51 While I accept that Trees 1-5 were originally planted so as to form a hedge, the finding in Johnson cited above requires that they continue to form a hedge.

52 In this regard, Mr Ardagh confirmed on site that several of the original trees had died and others that were planted on his property were removed. In particular, several trees between Trees 1 and 2 and Trees 2 and 3 have died or been removed. Tree 1 now reads as an individual specimen and to that end, no longer forms part of a hedge. Therefore the Court has no jurisdiction to make orders under Part 2A for any interference with this tree.

53 There is an element of doubt in my mind as to whether Tree 2 is an individual specimen or remains part of a hedge. As noted in [10] of this judgement there is a small and suppressed fig quite close to this tree that could well be part of the original planting. Therefore, putting the applicant's case at its highest I am prepared to accept that a 14A(1) applies to Tree 2.

54 I am satisfied that Trees 3, 4 and 5 remain in the original configuration and that s 14A(1) applies to these trees.

55 As all of the trees are in excess of 2.5m, s 14A(1)(b) applies. The trees are on appropriately zoned land.

56 I am also satisfied that s 14C and s 14E(1) have been complied with.

Sunlight

57 Mr Ardagh has made an application under s 14B(a) for an order to remedy, restrain or prevent a severe obstruction of sunlight to windows of a dwelling situated on his land. Section 14D(1)(a) enables the Court to make any orders as it thinks fit to remedy, restrain or prevent the severe obstruction of sunlight to a window of a dwelling situated on the applicant's land if the obstruction occurs as a consequence of trees that are the subject of the application concerned.

58 Relevantly, s 14E(2)(a)(i) states that the Court must not make an order under this Part unless it is satisfied that the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicant's land.

59 As a consequence of the findings on s 14A(1), I can only consider the impact of Trees 2-5.

60 The applicant's dwelling is effectively three storeys. It is oriented from front to back from the northwest to the southeast. Issues with respect to sunlight were raised for the following rooms and trees:

• North-facing ground floor living room - Tree 1;
• Ground floor rumpus room - south-easterly facing - Trees 3-5.
• First floor north/north-easterly facing dining room and associated deck- Trees 1 and 2;
• First floor kitchen north-easterly facing- Tree 2;
• First floor TV room - south-easterly facing - Trees 3-5;
• Top floor bedroom - tree 2.

61 The applicant contends that the Figs severely obstruct at least 95% of the morning sunlight to these windows. While Mr Ardagh accepts that there are a number of eucalypts on his property and that of Mr Ellston, he argues that the light through these trees is filtered whereas the Figs have a much denser canopy.

62 Mr Ardagh did not provide the Court with any shadow diagrams but rather gave oral evidence as to what he considered the loss of sunlight to be.

63 In regards to the ground floor rumpus room, a deck above it that extends 3-4 metres beyond it effectively covers that room. There is also a deck above the ground floor living room and the first floor dining room.

Findings - sunlight

64 In order to determine whether there is a severe loss of sunlight to the nominated windows, it is important to consider a number of features observed during the hearing. As stated in paragraphs [8] to [10] there are many tall trees on both the applicant's and the respondent's properties. These trees are located to the southeast to the northwest of the applicant's dwelling. Of those trees, the Court can only consider the impact of Trees 2, 3, 4 and 5.

65 Given the height and number of Eucalypts and other trees that are either not the subject of the application or which the Court has no jurisdiction to consider, I am not satisfied on the evidence before me that Trees 2, 3, 4 and 5 are severely obstructing sunlight to the nominated windows of the applicant's dwelling. While they do obstruct some sunlight, I am not satisfied that they have caused a severe obstruction in themselves. I also find that the orientation of some of the windows and the presence of decks above some of the rooms also limits the amount of sunlight the windows will receive. However, given the finding regarding the removal of Trees 4 and 5 in respect of the application under Part 2, the applicant is likely to receive some more sunlight to the south-easterly facing windows. If I am wrong on the jurisdictional test in s 14A(1)(a), I also find that Tree 1, by itself, does not severely obstruct sunlight to windows of the applicant's dwelling.

66 As s 14E(2)(a)(i) is not satisfied for Trees 2 to 5, not orders can be made for any interference with them in regards to sunlight.

Views

67 Mr Ardagh contends that the Figs severely obstruct views from his dwelling.

68 The relevant provisions for views are found in sections 14B(b), 14D(1)(b) and 14E(2)(a)(ii). The key test is s 14E(2)(a)(ii) which states that the Court must not make an order under this part unless it is satisfied that the trees concerned are severely obstructing a view from a dwelling situated on the applicant's land.

69 The views in contention are district views of a distant forested ridgeline to the northeast (Tree 1) and glimpses of the horizon and the ocean to the east (Trees 2 and 3). The parts of the dwelling are the ground floor living room, first floor rooms and the upstairs bedroom balcony.

70 The applicant did not provide the Court with any evidence, such as photographs, of the extent of the views that existed prior to the planting of the Figs.

Findings - views

71 Notwithstanding the fact that the Court has no jurisdiction to make orders under Part 2A for Tree 1 as it does not satisfy s 14A(1)(a), I note that while this tree does obstruct part of the distant view of a ridgeline, a significant portion of the ridgeline can be viewed from the applicant's dining room and from the bedroom balcony. In the event that I am wrong on the jurisdictional test in s 14A(1)(a), I find that Tree 1, by itself, does not severely obstruct the district views from the applicant's dwelling. I find that the obstruction is moderate and that other trees, including palms on the applicant's property, contribute to the obstruction. In this regard, Tree 1 does not satisfy the test in s 14E(2)(a)(ii).

72 It is possible to stand on the balcony of the upstairs bedroom and see glimpses of the distant horizon and ocean. Given the height and number of Eucalypts on both the parties properties as well as many other trees and dwellings between the applicant's property and the ocean, I am not satisfied that any more than distant glimpses were ever possible from the first floor. In the 12 years the Figs have been planted it is reasonable to assume that the other vegetation on the parties' properties and beyond has grown taller and that developments have occurred between the applicant's property and the coast that have interfered with those distant views.

73 While I accept that the Figs obstruct part of the view, I am not satisfied on the evidence before me that Trees 2 - 5 severely obstruct the nominated views from the applicant's dwelling.

74 Therefore I am not satisfied that s 14E(2)(a)(ii) is met for Trees 2-5 and no orders will be made for any interference with them on the basis of views.

Conclusions and orders

75 In regards to the application under Part 2 of the Act, for the reasons given in this judgment, I consider the orders sought by the applicant for the removal of all seven Fig trees cannot be supported. Specifically I find that the Court has no jurisdiction under Part 2 to order any interference with Trees 2, 3, 6 and 7. While the jurisdiction was engaged for Tree 1, I have concluded that the damage is so minor that it does not warrant an order of the Court. However, given the proximity of Trees 4 and 5 to the dividing fence, I am satisfied that these trees could in the near future cause damage to the fence. I have determined that root pruning is not appropriate and the trees are to be removed. I do not consider the matter to be urgent and I note Mr Ellston's submissions regarding his father's financial circumstances. However, I am ordering that the two trees are to be removed within 90 days of the date of these orders. The trees are to be cut to stumps no higher than 400 mm above ground and the stumps are to be poisoned to prevent any re-growth. As stated in the judgment, I see no reason to order the respondent to remove the roots from the applicant's land, as they have not caused any damage to any property on his land.

76 In regards to rectification, while tree 1 has contributed in some small way to the damage to the driveway, the other more probable causes of its condition have lead me to conclude that orders of the court are not warranted. Similar findings are made for the fence.

77 In regards to the application under Part 2A, I have determined on the basis of s 14A(1)(a) that the court has no jurisdiction over trees 1, 6 and 7.

78 In regards to the applicant's contention that trees 2, 3, 4 and 5 are severely obstructing both sunlight to windows of his dwelling and views from his dwelling, for the reasons given in the judgment I am not satisfied to the extent that I must be that this is the case. Therefore I find that as s 14E(2)(a)(i) and (ii) are not met for any of those trees, the Court has no jurisdiction to make any orders for any interference with those trees under Part 2. However, as Trees 4 and 5 are to be removed this may bring some relief to the applicant with respect to sunlight.

79 Therefore the Orders of the Court are:

(1) The application to remove 5 of the 7 trees is dismissed.

(2) The application for rectification is dismissed.

(3) Within 90 days of the date of these orders the respondent is to engage and pay for an AQF level 3 arborist to remove Figs 4 and 5 as indicated in the diagrams in applicant's claim forms.

(4) The trees are to be cut to stumps a maximum of 400mm high and the stumps are to be poisoned to prevent regrowth of any part of the trees.

(5) The work is to be carried out in accordance with the WorkCover NSW code of conduct for the amenity tree industry.

(6) On 2 days notice, and if required by the contractor, the applicant is to provide all reasonable access for the work to be carried out in a safe and efficient manner.

_____________________

J Fakes

Commissioner of the Court

Decision last updated: 24 August 2012