Barnett v Bayliss & anor

The trees and their location 7The respondents' property is a battleaxe block to the north and northeast of the applicant's property. It is accessed via a long driveway that adjoins the eastern boundary of the applicant's property. 8The trees in question are a row of xCupressocyparis leylandii 'Castlewellan Gold'. 9According to the first respondent's affidavit, in about 1987, the respondents planted approximately 37 trees at the northern end and on both sides of the driveway; this was done in conjunction with the then owner of the property on the eastern side of the driveway. Since then, about 18 of those trees have been removed. 10In about 1990, another 25 or so trees were planted on the southern end of the driveway and on both sides of it. Approximately 10 of those trees have been removed. 11The application and claim forms do not identify specific trees. It is also unclear as to whether the application applies to the trees along the eastern side of the driveway. 12During the hearing, the applicant and her husband were asked to identify which trees were part of the claim. They agreed that only the trees along the western side of the driveway, that is those closest to the eastern side of their property, were in contention. 13There are 27 Leyland Cypress trees along the western side of the respondents' driveway. There are a number of gaps where trees have been removed and in some instances shrubs have been planted to fill the gaps. 14The lowest four metres or so of branches have been removed from most of the trees.

The Part 2 Application 15In applications under Part 2 of the Act, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order under this Part 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. 16The 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...". 17As 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. 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, evidence of previous failures and the circumstances of the site apparent at the time of the hearing.

Leaves in the gutter and subsequent mould 18The applicant contends that debris from the trees constantly falls from overhanging branches into the gutters and onto other parts of her property. She contends that the leaf litter, blocked gutters, and general humidity created by overhanging branches has created a problem with mould and dampness on the external and internal walls of the dwelling. Photographs in the additional material tendered by the applicant show water overflowing from blocked gutters. 19The applicant was unable to produce any evidence of actual damage to any part of her property as a consequence of the leaves. 20In regards to the mould, it had been cleaned off the wall and there was no evidence to prove that it was a direct consequence of the trees and not something related to the construction of that part of the dwelling which is a more recent addition to the house. 21While I am not satisfied that any damage has occurred to the guttering as a consequence of the leaves, or is likely in the near future to occur, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter. 22In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paragraphs [168] to [173] discusses 'damage' in general. In this discussion, his Honour specifically noted at [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. 23Many 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. 24In Hendry & anor v Olsson & anor [2010] NSWLEC 1302, at [11]-[14], the Principle was extended to include the cleaning of mould and slime. 25There 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. The applicant was unable to provide any compelling reason why ordinary maintenance is unreasonable.

Damage to the fence 26The respondents erected the timber dividing fence in 1958, therefore it is about 56 years old, and as would reasonably be expected, is showing signs of wear and tear. 27The applicant contends that roots from the respondents' trees have lifted the fence and have contributed to its decline. 28No evidence was adduced to demonstrate the alleged impact of the roots on the fence. 29Even if such evidence had been produced, as a matter of discretion, given the age of the fence, no orders would be made for any intervention with any of the trees on this basis.

Potential damage to the footings 30While there is some lifting of the brick pavers beside the eastern wall of the living room and the fence, there are no signs of any cracking or displacement of the brick wall or its footings. No evidence was produced to demonstrate that there is any likelihood of this arising in the near future. 31Therefore, in the absence of such evidence, no orders can be made for any interference with the trees on this basis.

Root damage to paving 32In the lawn on the eastern side of the applicant's property is a small, winding brick path, several sections of which have been displaced. Removal of bricks revealed a number of woody roots, which have the characteristics of being from a Leyland Cypress. The bricks are displaced to the point where they pose a trip hazard and therefore there is a risk of injury. 33There is a brick paved side passage between the side of the applicant's living room and the dividing fence. The passage is about one metre wide. Several sections of the paving have been slightly displaced although not yet to the extent of the lifting of the winding path. 34I am satisfied to the extent required by s 10(2) that the displacement of pavers in the path and side passage has been caused by roots from a number of the respondents' Leyland Cypress trees. Therefore, the Court's jurisdiction is engaged. 35The respondents' position is that they would contribute 50% of the cost of any rectification of the pathway as long as it was professionally done. 36In regards to what orders should be made, I am not satisfied that the damage to the brick pavers justifies the removal of the trees. However, the removal of limited sections of roots from under the winding path will be ordered. 37An AQF level 3 (tradesperson) landscaper or paving contractor is to lift the small sections of raised bricks in the winding path. Any woody roots found beneath the bricks are to be cleanly cut to a distance no more than 150mm from the eastern edge of the path and to a depth of no greater than 100mm. The roots beneath the paving are to be removed, the sub-base compacted and the pavers re-laid to their original level. There is no obligation on the respondents to pay for the relaying of the entire winding pathway. 38Pruning the roots 150mm beyond the edge will enable the applicant or her husband to keep any new root growth under control by simply cutting them with a sharp spade. 39In regards to the path beside the living room and the fence, given the proximity of the trees to the paving, pruning roots to the extent described above could cause stability issues. However, I am satisfied that some action should be taken. 40The pavers forming the side pathway between the living room and the fence are to be lifted and re-laid up to 100mm above their current level in areas where tree roots have lifted the pavers. No roots greater than 25mm in diameter are to be cut (with the exception of roots from tree 16 - see [43]). The path is to be sloped to gently shed water away from the wall. The pathway is to be ramped at either end to connect with the adjoining sections of path. As long as the surface is serviceable and safe it does not need to be at the original level or conventionally flat. Given that the vents beneath the floor of the living room are about 700mm above the level of the path, raising the pathway by a maximum of 100mm should not create any problems. 41While the respondents object to paying the full cost of the rectification, I see no reason why they should not do so. I note that the arborist engaged by the respondents in 2008 noted that the roots of some trees were probably lifting the applicant's pavers and that this could be addressed by lifting and resetting the pavers.

Potential damage to the roof 42Neither party engaged an arborist to provide independent advice for the purpose of the hearing. Therefore, the following comments are based on the expertise I bring to the Court. 43In my opinion, tree 16 (numbered from the front of the driveway), has a weak structure that makes it more susceptible to failure than any of the nearby trees. This tree has had one stem removed in the past and the remaining stem leans towards and partly over the applicant's dwelling. In my view it would be prudent to remove this tree. The roots of this tree are also likely to be contributing to the lifting of the applicant's side pathway. The orders will require the removal of this tree before the rectification of the paving described in [40]. 44While the risk of damage to the roof is probably low, there is a low hanging, reaching branch on tree 14 that is likely to be in contact with the applicant's roof within the next 12 months or so. It would be sensible to remove this branch when tree 16 is removed.

Potential fire risk 45There is a claim in the applicant's material that the trees are close to the flue of the gas heater and could therefore be a fire risk. 46Trees do not cause fire but are damaged by fires caused by other things. The risk of fire damage is discussed in Freeman v Dillon [2012] NSWLEC 1057 at [86].

Conclusions - Part 2 application 47I am satisfied to the extent required that some of the respondents' trees have caused damage to the applicant's property and others may do so in the near future. Orders will be made reflecting the findings in paragraphs [37]-[38], [40]-[41] and [43]-[44].

The Part 2A application 48The applicant contends that the row of Leyland Cypress along the common boundary is severely obstructing sunlight to several windows and to the garden. 49In Part 2A applications there are a number of jurisdictional tests that must be sequentially satisfied. 50Section 14B(a) 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 situated on the applicant's land if the obstruction occurs as a consequence of trees to which Part 2A applies, being situated on adjoining land. 51Part 2A therefore does not contemplate obstruction of sunlight to gardens and therefore, this element of the application cannot be considered. 52Section 14A(1)(a) states that Part 2A applies only to groups of two or more trees that are planted so as to form a hedge. 53The trees are located on adjoining land belonging to the respondents. The trees were originally planted in two stages in rows. While the respondents consider they did not intend to plant a hedge, the effect of the planting, given the choice of species, the arrangement and the spacing, would readily appear to any casual observer as forming a hedge. 54While a number of trees have been removed, I consider that the remaining trees, with the exception of the last two trees, could be considered as comprising a number of hedges. In my opinion, the last two trees are quite widely spaced and would reasonably be considered as individual trees and therefore not trees to which s 14A(2)(a) applies. 55The remaining trees are certainly in excess of 2.5m tall and therefore able to be considered. 56The next relevant test is s 14E(2) 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.

The windows 57The nominated windows are the north-facing window of the living room (W1) and two east-facing bedroom windows (W2) and (W3). 58The applicant did not provide any shadow diagrams but some photographs taken between late November and early December 2013 from sunrise (5.39 am), 9.00am, 9.30am and 10.00 am show shadows said to be cast by the respondents' trees. 59The applicant contends that all morning sun is lost to these windows because of the respondents' trees. 60I observed that W1 has an awning and W2 and W3 are setback some 2m or so from the edge of the verandah. 61There is insufficient evidence to demonstrate that W2 and W3 suffer a severe obstruction of sunlight as a consequence of the trees about which the application is made. 62I observed the following features of the adjoining properties as well as those of the applicant's property that would suggest that the obstruction is due to other factors.

• Given the extent of the verandah, the windows would only be capable of receiving very early morning sun;
• Morning sun around the summer solstice would be limited by the large Liquidambars and other trees growing on the property to the east of the driveway; and
• Around the winter solstice, morning sunlight may be restricted by the shadows cast by the dwelling to the northeast, and to some extent by the shadows cast by the applicant's living room. 63I also observed that extensive crown lifting, that is, removal of the lower branches, has been carried out on the respondents' trees opposite these windows. While the trunks would obstruct some sunlight, absent other obstructions, sunlight would penetrate between them. 64Therefore I am not satisfied that s 14E(2)(a)(i) is met for windows W2 and W3 and there is no requirement for any further consideration. 65In regards to W1, the north-facing living room window, although there are no shadow diagrams to prove it, I am prepared to put the applicant's case at its highest and determine that sunlight is severely obstructed from this window as a consequence of the respondents' trees. 66As s 14E(2)(a)(i) is met, the balancing of interests in s 14E(2)(b) is required. This entails consideration of a number of relevant discretionary matters in s 14F. 67The following matters are relevant:
• The eastern wall of the living room is about 1m from the dividing fence; the trees in question are therefore within about 1.5m of the wall and perhaps 2.5m from the window (s 14F(a));
• The trees are estimated to have been about 4-5m tall when the applicant purchased her property (based on the real estate brochure advertising the auction of the applicant's property) (s 14F(c));
• The respondents planted the trees to enhance the entrance to their property and therefore in their view contribute to the scenic value of their land and to garden. They also consider the trees provide a windbreak (s 14F(h)(l));
• The trees can be seen from the street and form part of the diverse, leafy character of the Ku-ring-gai municipality (s 14F(i));
• As stated above, neither party engaged an arborist to provide evidence for the hearing. With the expertise I bring to the Court, I consider the applicant's alternative orders to reduce the height of the trees to gutter height would have unacceptable consequences for the health, structure and appearance of the trees and is not supported. Many of the trees have been heavily crown-lifted and reducing the trees to gutter height would remove the majority of the remaining foliage. In my view, the trees would not recover from such a radical reduction in height (s 14F(k));
• In regards to other things that may contribute to the obstruction of sunlight to this window, the morning sun would probably be limited to some extent by the adjoining dwelling to the east and by the awning on the window. Apart from the trees in contention, there are other trees on the eastern side of the driveway that would have some impact on shading (s 14F(m));
• The applicant and the respondents have undertaken pruning of the lower branches. The respondents have removed a number of trees. The applicant has installed a number of skylights (s 14F(n));
• The applicant alleges the loss of morning sun. The window would be capable of receiving midday and afternoon sun (absent any obstruction from trees in the applicant's garden) (s 14F(o));
• The trees are evergreen (s 14F(p));
• The morning sunlight is obstructed to the only external window of the living room (s 14F(r));
• The trees were present and established when the applicant purchased her property. A statement in the claim form indicates that the applicant noted the existence of the trees but thought the respondents would trim them (s 14F(s)).

Conclusions Part 2A application 68After considering the competing interests of the applicant against the undesirability of interfering with the trees, I find that pruning or removing the trees is not warranted in the circumstances. As stated above, pruning the trees would have the same ultimate result as removal but in the interim result in a visually unacceptable outcome. 69Given the proximity of W1 to the side boundary and the other obstructions, I am not satisfied that either pruning or removal is warranted. As s 14E(2)(b) is not found in the applicant's favour the Court has no jurisdiction to make any orders under s 14D.

Orders 70As a consequence of the foregoing, the Orders of the Court are: (1)The Part 2A application is dismissed. (2)The Part 2 application is upheld in part. (3)By 7 March 2014, the respondents are to engage and pay for an AQF level 3 arborist to remove tree 16 to ground level and to remove the low hanging branch on tree 14. (4)The work in (3) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. The pruning work in (3) is to be carried out in accordance with the general and selective removal provisions of AS 4373: 2007 Pruning of Amenity Trees. (5)The applicant is to provide all reasonable access for the purpose of quoting and undertaking the works in (3) on at least two working days notice. (6)By 7 March 2014, the parties are to obtain at least 2 quotes each from an appropriate contractor for the paving works described in paragraphs [37] and [40] of this judgment with particular attention paid to the limited scope of the necessary works. Any additional works requested by the applicant are to be clearly and separately itemised. (7)By 14 March 2014 the parties are to have exchanged quotes and agreed on the choice of contractor. If no agreement can be reached, the cheapest quote must be accepted. Any additional works required by the applicant must be clearly noted at this time. (8)The applicant is to provide all reasonable access for the purpose of quoting and carrying out the works in (6) on at least two working days notice. (9)The applicant is to engage and pay for the nominated contractor to undertake the works in (6). (10)The works in (6) are to be completed by 2nd May 2014 otherwise order (11) lapses. (11)Within 21 days of the receipt of a tax invoice for the completed works in (6) the respondents are to reimburse the applicant the agreed amount.

Judy Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 January 2014