Land and Environment Court New South Wales

• Medium Neutral Citation: CK v DB [2012] NSWLEC 1294
• Hearing dates: 18 October 2012
• Decision date: 18 October 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Damage to property; Hedge - obstruction of sunlight
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Robson v Leischke [2008] NSWLEC 152; Barker v Kryiakides [2007] NSWLEC 292; Johnson v Angus [2012] NSWLEC 192; Tooth v McCombie [2011] NSWLEC 1004
• Category: Principal judgment
• Parties: Mr C K (Applicant); Ms D B (Respondent)
• Representation: Applicant: Mr P K (Agent); Respondent: Ms D B (Litigant in person)
• File Number(s): 20767 of 2012
• Publication restriction: Non-publication of anything likely to lead to identification of parties pursuant to r 36.16 pt 40, r 9 of the Uniform Civil Procedure Rules 2005

Judgment

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

1 COMMISSIONER: This is an application pursuant to both s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Sydney against the owner of trees growing on an adjoining property.

The Part 2 Application

2 The applicant contends that two of the trees on the respondent's property (T7 and T8) - both palms - have caused damage to the western end of the double brick wall that forms the dividing fence between the front gardens of the parties' properties. The applicant seeks orders for the removal of these two trees.

3 In addition, the applicant seeks orders for the pruning of Trees 2,3,4,5 and 6 to a height of 1.8m and to within the bounds of the respondent's property. These orders are sought on the basis that parts of T4 and T5 overhang the roof and guttering of the applicant's dwelling.

4 The key jurisdictional test in applications under Part 2 is s 10(2). This states that the Court must not make an order unless it is satisfied that the tree 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. Injury is not pressed in this matter.

5 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; a timeframe I consider appropriate in this matter.

6 The trees relevant to this element of the application are clumps of Strelitzia nicolai (Giant Bird of Paradise) interspersed with palms. The Strelitzia are probably trees 2,3, 4 and 5 on the diagram in the application. T6 is a palm to the north of the clumps of Strelitzia. There are other palms close to the Strelitzia. I note that the applicant was somewhat confused as to which trees are the subjects of the application and which are not - due in part to the clumping nature of the Strelitzia and the grouping of the palms.

7 These trees are growing on the southern side of the respondent's front garden.

Damage to the wall

8 Prior to the hearing, the applicant removed T7 and T8 however small stumps of the trees remain. Being palms, the stumps will not re-shoot. Section 4(4) of the Act states that the Act can apply to trees that have been removed. Therefore the Court has jurisdiction to make orders for the removal of stumps but only if there is a proven nexus between the trees and the alleged damage. That is, s 10(2) must be satisfied.

9 I saw no contact between the stumps and the brick wall. These stumps are located at the eastern end of the brick wall and are the plants the furthest distance from the alleged damage.

10 The damage the applicant says has been caused by T7 and T8, is a degree of separation in the mortar of a small section of brick wall where it joins the two separate but adjacent double brick front fences of both properties. This is at the western extremity of the side boundary wall and a considerable distance from the stumps of T7 and T8.

11 Photograph B13 in the application shows the proximity of the trunks to the wall prior to their removal but it is not possible to tell if they were touching it. Even if they were touching the wall, I fail to see how there could have been any influence of trees 7 and 8 on the wall sufficient to cause the separation at its other end. The damage is minor and essentially cosmetic and the remainder of the wall appears to be in very good condition. There is no damage to the part of the wall closest to the trees in question.

12 On the evidence before me, s 10(2) is not satisfied and no orders can be made in regards to the stumps of T7 and T8.

Overhanging branches

13 With respect to the overhanging "branches" of T4 and T5, photographs included in the application show some palm fronds partly overhanging the applicant's roof and pathway on the northern side of the property - it is not clear at to which tree they come from. There are some leaves of the Strelitzia shown to be overhanging the path.

14 There is no indication in the application as to what damage may have occurred or what was likely to happen as a consequence of the overhanging elements.

15 During the on site hearing, the applicant stated that leaves from the trees had blocked the gutters which led to entry of water and staining of the ceiling of a room on the opposite side of the house. I note that this issue was not raised in the application and therefore the respondent had no opportunity to respond to it. From the ground, the guttering appeared to be in good order.

16 Since the application was filed the trees the subject of the application have been pruned back to be largely within the respondent's property. No part of any tree overhangs the roof of the applicant's dwelling.

17 On the evidence before me I am not satisfied that any damage has occurred to the applicant's property as a consequence of the leaves, or is likely in the near future to occur. If I am wrong in that finding, likewise on the evidence before me, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter.

18 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:

171However, 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.

19 Many applications are made on the basis of 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.

20 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.

21 In conclusion, no evidence was adduced to satisfy the Court to the extent required by s 10(2) that any of the respondent's trees have caused, are causing, or are likely in the near future to cause, damage to the applicant's property. In the words of Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62] "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...". As a consequence, this element of the application is dismissed.

The application under Part 2A

22 The applicant contends that T1 - a row of Murraya paniculata as well as Trees 2-6 severely obstruct sunlight to a front bedroom window.

23 In applications under this Part there are several jurisdictional tests that must be satisfied before the Court's jurisdiction to make orders is engaged.

Are the trees a hedge for the purpose of the Act?

24 The first is s 14A(1) which states that Part 2A applies only to groups of two 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).

25 In the respondent's sworn affidavit at [12], she states that in 2002 she engaged a horticulturalist to design a tropical garden for the front of her property. Murraya were planted along the front and part of the side boundary to form a hedge. Strelitzia and several species of palms were planted to form a 'heat shield' as the front of her dwelling faces west. She clearly states, "the Strelitzia and palms were not planted to form a hedge and have self-sown". The respondent also states that the palms provide privacy and act as a noise buffer.

26 In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the meaning of s 14A(1)(a). Amongst other things, His Honour finds that the primary purpose of the planting must be to form a hedge and the planting must retain the appearance of a hedge at the time the application is heard. At [38] His Honour states in part that if the plants are planted for another purpose, other than as a hedge, then Part 2A will not apply. In [40] - [41] the relevance of other criteria such as species, proximity and arrangement are discussed.

27 With respect to the row of Murraya at the western end of the respondent's front garden, I am satisfied that these trees form a hedge for the purpose of the Act. While the trees have been recently pruned, their height exceeds 2.5m.

28 With respect to trees 2-6, these are clumps of Strelitzia with interspersed palms. Rather than being 'self-sown', the Strelitzia have produced many suckers - this is a characteristic of the species.

29 While the applicant does not agree with the respondent's sworn statement that the Strelitzia were not planted so as to form a hedge, it is difficult to contradict the statement of the person who commissioned the planting. In my opinion, the appearance of the planting is of a group of plants with foliage of a tropical appearance and which have grown together to form a thick clump. There is another group of palms and tropical looking plants at the front of the respondent's dwelling. The row of Murraya is distinctly different in its form, arrangement and maintenance and, in my view, would certainly be considered by a casual observer to be a hedge. In my opinion, the same could not be said for the remaining trees.

30 Therefore I am not satisfied that the Court has the jurisdiction to proceed with the application with respect to T2-T6 however, if I am wrong in this, I will give some consideration to the tests in s 14E(2).

Is there are severe obstruction of sunlight?

31 The next relevant jurisdictional test is 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.

32 The applicant states in his application that in July, the west-facing bedroom window at the front of his dwelling loses about 3-4 hours of direct sunlight - presumably as a consequence of the respondent's trees.

33 No shadow diagrams have been submitted. Photographs lodged with the application show the respondent's trees prior to their recent pruning and the bedroom window in shade. I was told the photographs were taken in the afternoon but there are no dates or times shown on them.

34 While it is clear from the photographs that there trees were taller when the application was made, the application is determined on the circumstances at the time of the hearing [see Tooth v McCombie [2011] NSWLEC 1004].

35 In regards to the level of obstruction, the Act requires it to be 'severe'. The Macquarie Dictionary defines the word 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions, as weather, cold, heat etc and hard to endure, perform or fulfil. The Oxford Dictionary includes austere, strict, harsh, rigorous, unsparing, violent, vehement, extreme, trying; making great demands on endurance, energy, skill or other quality. Thus the Act sets a high bar for the level of obstruction caused by the trees the subject of the application.

36 Absent shadow diagrams that might prove one way or another if the trees are severely obstructing sunlight to the window, I must consider the layout and orientation of the applicant's dwelling and its relationship to the trees. Relevant too are things other than the trees that may contribute to any obstruction of sunlight.

37 The window faces west and as such it is only capable of receiving afternoon sun. Given the angle of the walls and the window, the only plants on the respondent's property that would currently be capable of causing some obstruction of sunlight are one or two stems of Strelitzia to the north of the window. The current height of the Murraya hedge would not severely obstruct sunlight.

38 I also note that a mature Crepe Myrtle street tree at the front of the respondent's property, although deciduous in winter, would obstruct some late afternoon sun, as would the evergreen Bottlebrush on the nature strip outside the applicant's property.

39 I also note that the window is of a bedroom, and unlike a living room that would reasonably require solar access, a bedroom is generally less likely to be used in the afternoon and solar access would be considered less critical. The window opens onto a wide and covered verandah upon which are located several pots of tall evergreen plants - some of which are in front of the window. The verandah would limit solar access to some extent.

40 On the evidence before me I am not satisfied that any of the trees to which this Part applies, or indeed any of the plants the subject of the application, are severely obstructing sunlight to the bedroom window. Therefore as s 14E(2)(a)(i) is not met the application must be dismissed. Again, if I am wrong in this, given the benefits the trees afford the respondent, and for the reasons discussed above, if I had to consider s 14E(2)(b), I am not satisfied that the applicant's interests outweigh the other matters that suggest the undesirability of disturbing or interfering with the trees.

Orders

41 Therefore, as a consequence of the foregoing, the Orders of the Court are:

(1) The application is dismissed.

___________________________

J Fakes

Commissioner of the Court

Amendments

15 November 2012 - Non-publication of anything likely to lead to identification of parties pursuant to r 36.16 pt 40, r 9 of the Uniform Civil Procedure Rules 2005
Amended paragraphs: various

Decision last updated: 15 November 2012