Bhuta v Cefai

The onsite hearing

1. Both parties attended the hearing, and the respondents were represented by Mr Koikas of Counsel. Oral submissions followed an initial inspection of the trees from both properties and both parties provided extensive written submissions.

The applicants' claims

1. At question 4 of the Tree Dispute Claim Details (Exhibit B), the applicants claimed (in summary) that: 1. Roots of T 6 are causing sewer pipe blockage and fence damage, and that tree sensitive construction for building and stormwater, and canopy pruning back to the common boundary will be needed. 2. Roots of T 6a and T 6b are causing sewer pipe blockage and fence damage, and that roots and canopy of T 6a with the applicants' property are "having hinderance to our enjoyment of property".
2. In "Specified harm caused by the trees" in Exhibit C, the applicants also submitted that roots from T 6 "are entering our property and creating trip hazards for any person" and that the location of T 6 contravenes a rule on page 22 of Sydney Water 'Tech guidelines Building over adjacent pipe assets'. The applicants added that, "Due to trees location, we will not be able to do full length of (sic) encasing of sewer pipe on our plot", and that not allowing removal of the trees is a "hinderance in corporal hereditaments'. They also claimed that the tripping hazard, and sewer line and fence damage, were likely to worsen in the near and foreseeable future.

The respondents' claims

1. Mr Cefai submitted an affidavit (Exhibit 1), dated 13 February 2022, on behalf of the respondents, and claimed to have not received 21 days' notice of the lodging of the application and the terms of any orders sought under s 8(1)(a) of the Trees Act, and that he does not agree to waive the requirement, under s 8(3) of the Trees Act.
2. Mr Cefai said he planted the trees about 10 years ago for privacy and he emphasised the trees' beauty, and their contribution to the respondents' enjoyment of their land, to shade, and to habitat for local birds and wildlife. Mr Cefai noted the various bird species he regularly observed.

Jurisdictional requirements

1. With respect to s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which the Trees Act applies that is situated on adjoining land.
2. Section 8(1)(a) of the Trees Act requires applicant/s to give the owner/s of the land on which the tree/s are situated at least 21 days' notice of the lodging of the application and the terms of any orders sought. The respondents claimed that such notice was not satisfied but the applicants provided evidence of letters sent to the respondents by registered mail in June and July 2022, about six months before the application was made on 2 December 2022, the second of which the respondents refused to accept and returned. Mr Koikas conceded that the letters had been received by the respondents.
3. The respondents questioned whether the letters included explicit "terms of any orders sought". I considered the applicants' personal approaches to discuss their proposed development and subsequent letters made their desired outcome obvious, but regardless, I exercised the powers provided by s 8(3) of the Trees Act to waive the requirement of 8(1)(a) of the Trees Act, as requested in the applicants' proposed orders. The applicants satisfied the requirement under s 8(1)(b) of the Trees Act to provide the application documentation to Council.
4. The Court is next obliged to consider matters pursuant to s 10 of the Trees Act.
5. Section 10(1)(a) of the Trees Act, requires the applicants to make a reasonable effort reach agreement with the owner/s of the land on which the tree is located.
6. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ("Robson"), at [192] Preston CJ notes that, "The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner…". At [195] of Robson, his Honour notes the Trees Act's requirement of "a reasonable effort to reach agreement", is less demanding on the applicant than "reasonable attempts", or "all reasonable attempts", as applies in provisions of other statutory enactments.
7. Mr Bhuta visited the respondents to discuss the trees impact on the proposed development and sent letters by registered mail in June and July 2022 seeking removal of the trees. The applicants subsequently approached the real estate agent who managed the respondents' property and waited many months for a constructive response before making their application in December 2022.
8. This is sufficient to be considered "a reasonable effort to reach agreement with the owner/s of the land on which the tree is located", and s 10(1)(a) of the Trees Act is thus engaged.
9. The next major test that is posed, by s 10(2) of the Trees Act, states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person.
10. Should at least one of these conditions be satisfied, the Court must consider relevant matters at s 12 of the Trees Act. 12 Matters to be considered by Court Before determining an application made under this Part, the Court is to consider the following matters: (a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises, (b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, (b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act, (b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree, (b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated, (c) whether the tree has any historical, cultural, social or scientific value, (d) any contribution of the tree to the local ecosystem and biodiversity, (e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned, (f) the intrinsic value of the tree to public amenity, (g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned, (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage, (i) if the applicant alleges that the tree concerned is likely to cause injury to any person: (i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury, (j) such other matters as the Court considers relevant in the circumstances of the case.

Findings

1. The applicants own their land and have thus satisfied the requirements of s 7 and s 8 of the Trees Act. Section 9 of the Trees Act covers the powers of the Court to make a broad range of orders.
2. I concur with Mr Koikas that issues arising from the applicants' DA should have no bearing on this case as the DA was rejected by Council. This particularly relates to point (4) of 'Current damage' contained in 'Specified harm caused by the trees' in Exhibit C, where the applicants submitted that "Due to trees location, we will not be able to do full length of (sic) encasing of sewer pipe on our plot", and tree protection costs, highlighted in Exhibit D, that may apply to the applicants' proposed development, should the trees be retained. Though my description of "point (4) of 'Current damage'" (above) was based on the applicants' organisation of Exhibit C, "point (4) of 'Current damage'" may also be identified as "Current damage (b)(ii)(4)".
3. However, aspersions cast on the applicants by Mr Koikas, because the applicants' claims under the Trees Act appeared to be primarily motivated by a desire to optimise their proposed development potential and minimise associated tree protection costs, should also have no bearing on this case. Regardless of the applicants' motives, the evidence before the Court that relates to the requirements of the Trees Act, particularly s 10 and s 12, determines my decisions.
4. With respect to the applicants' claim of past damage to Sydney Water sewer mains, I accept Mr Koikas's submission that these pipes are the property of Sydney Water, not the applicants, even though they pass under the applicants' land. Consequently, such damage does not fall under the jurisdiction of the Trees Act. As noted by Fakes C in Wazrin Pty Ltd v Pearson No 2 [2010] NSWLEC 1020, at [5]; "That is, the property said to be damaged by a tree on an adjoining property, must belong to the applicant….". Though the applicants noted damage to Sydney Water pipes in the property of a distant neighbour, and associated inconvenience incurred, the applicants provided no evidence of damage to their own sewer pipes that attach to the Sydney Water sewer mains, nor any damage or financial liability impacting them as a result of any sewer pipe damage.
5. Based on my site inspection, I was satisfied that roots of T 6 had caused uplift damage to one panel of the common boundary fence such that s 10(2)(a) of the Trees Act was engaged.
6. I was also satisfied that the fence, having been erected in the 1980's, displayed considerable wear and tear and had occasionally been stabilised by the respondents during their long period of ownership of their land, to maintain the fence as 'fit for purpose'.
7. The applicants did not seek "any further order pursuant to s 13A of the Dividing Fences Act, 1991 concerning any portion of the fence that has not been damaged by the tree", as available to them at Q 17 of Exhibit B. Consequently, I am satisfied that orders contemplated to remedy fence damage should relate to the specific area of damage only and should provide for the fence to remain 'fit for purpose', in the context of the dilapidated condition of a fence that has been in situ for over 30 years.
8. Such 'normal wear and tear' is a consideration at subs 12(h) of the Trees Act as follows: (i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii), any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage.
9. While the roots of T 6 exposed on the applicants' land near the tree may present a trip hazard, I am not satisfied that they are likely to cause injury to any person as they are conspicuous and obvious and easy to avoid. The applicants noted they encouraged guests not to go near the roots and warned contractors working nearby of their presence. Therefore, s 10(2)(b) of the Trees Act is not satisfied.
10. I do, however, accept the applicants claim, in 'Current damage' in Exhibit C, that the exposed roots represent a hinderance in corporal hereditaments as the full use of the applicants' lawn area is restricted by the exposed roots of T 6. The applicants' claim was based on Dias v Vaswani [2011] NSWLEC 1274, where, at [17], Galwey AC said; "As outlined in Robson v Leischke [2008] NSWLEC 152; 72 NSWLR 98; 159 LGERA 280 at [165], lawn can be defined as a corporeal hereditament and thus is property on the applicant's land." Consequently, s 10(1)(a) of the Trees Act was engaged.
11. The exposed roots' hinderance in corporal hereditaments may be remedied by orders for soil infill and topdressing to provide a relatively flat, secure lawn surface that can permit comfortable pedestrian traffic and use of the applicants' lawn. The applicants had been advised in the Report that such works would unduly compromise the roots' gaseous exchange, but I am not satisfied this is necessarily so. This gaseous exchange capacity can be readily accommodated by using a coarse textured soil for topdressing.
12. The applicants repeatedly claimed that all branches and roots of the trees should be restricted to the respondents' land and not encroach beyond the common boundary, but this is not a requirement under the Trees Act. At [56] of Robson, in discussing the issue of nuisance, his Honour states that "mere encroachment into the neighbour's land is insufficient to complete a cause of action..."
13. For the urban community to gain the myriad benefits that accrue from trees, it is accepted that branches, and particularly roots, commonly encroach across boundaries, usually with little consequence. At [166] of Robson, his Honour noted: "…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 (Disputes between Neighbours) Act 2006 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 (Disputes between Neighbours) Act 2006..."
14. In support of tree removal, the applicants cited cases including Jones v Shelley & anor [2016] NSWLEC 1037 ("Jones"), Kitching v Shelley & anor [2016] NSWLEC 1036 ("Kitching"), and The Owners - Strata Plan 8412 v The Owners - Strata Plan 64221 [2022] NSWLEC 1452 ("The Owners - Strata Plan 8412"), each of which included orders made for removal of Weeping Figs, based on a propensity of their roots to cause ongoing damage.
15. In this case, however, such orders are not appropriate as T 6 is located adjacent to the applicants' large lawn, about 15m from their dwelling, paving, or any other structure on their land. The applicants had removed all other trees that had grown in their back yard many years prior, apparently with Council permission, and the back yard contained no obvious garden beds.
16. In this context, which relates to subs 12 (a) of the Trees Act, regardless that the tree's roots may grow larger and extend further in future, no relevant damage is likely to result on the applicants' land, particularly in the near future. Should any roots again protrude above the soil surface, topdressing over them is a simple remedy. At [28] of The Owners - Strata Plan 8412, Galwey AC says, "Mr Kurath noted that the tree's surface roots within the Applicant's property might cause a trip hazard, but this could be remedied by top-dressing with soil, removing the trip hazard". At [29] of The Owners - Strata Plan 8412, Acting Commissioner Galwey's order for removal of the Weeping Fig was based on "further damage in the near future to the boundary wall", where no viable alternative remedies were available to prevent such damage as the tree was contained in a planter box.
17. In Jones and Kitching, an outdoor toilet and a BBQ, respectively, both located close to the tree, were found to be damaged, unlike the circumstances here. While fence uplift damage in Kitching led Durland AC to make orders for tree removal, based on the nature and age of this common boundary fence, the significant benefits provided by these trees, and the much greater distance of T 6 from structures than trees in either Jones or Kitching, fence repair with reasonable allowance for future root growth is a more appropriate remedy in this case.
18. Notwithstanding this, I am satisfied that some branches from T 6 overhanging the boundary are sufficiently low and pendant to also restrict access to a small area of the applicants' lawn and are thus also hinder corporal hereditaments. Therefore, orders shall be made for limited pruning to raise the canopy and thus permit comfortable pedestrian access.
19. Though only a small tree, T 6a has a few branches exerting pressure on the boundary fence that are likely, in the near future, to push the fence towards the applicants' land, particularly during inclement weather. In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. Consequently, with consideration for the compromised condition of the fence, minor pruning shall also be ordered to remedy this likely damage.
20. The applicants claimed that hinderance in corporal hereditaments "can be translated in our case as tree 6, 6a and 6b prevented the property being used for the purpose for which it is intended", but I am satisfied that this applies to T6 only. I found no relevant restriction of lawn usage resulting from T 6a or T 6b.

Other discretionary considerations - s 12

1. As s 10 of the Trees Act was satisfied, the Court is required to consider relevant factors in s 12 of the Trees Act, prior to making orders.
2. With respect to subs 12(b), "whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained", Mr Bhuta noted that T 6 was exempt from the requirement for Council permission for removal (under the Environmental Planning and Assessment Act 1979). This was included in Mr Bhuta's 'Submission 1' which he lodged at the hearing to refute Mr Cefai's claims in Exhibit 1.
3. Specifically, notice of this exemption was provided to counter Mr Cefai's claims, at paragraph 9 of Exhibit 1, that "The trees were beautiful, provide shade, and were a habitat for local birds and wildlife." This exemption from the requirement for Council permission, does not, however, compromise or have any bearing on the trees' contribution to shade, the respondents' amenity, or the environment.
4. Following consideration of subss 12 (b) and (c) of the Trees Act, question 23 of Exhibit B asks whether there are any other legal controls that would prevent the Court making the orders you are seeking. Though I have considered Mr Bhuta's repeated claim that T 6 contravenes a rule on page 22 of Sydney Water 'Tech guidelines Building over adjacent pipe assets', this is a 'guideline', as displayed in its title, not a legal control. It is common for established trees to be growing over or close to Sydney Water sewer lines, usually without consequence. It is relatively rare for roots to enter pipes that are in serviceable condition and not subject to considerable 'wear and tear'. Mr Bhuta noted that the Sydney Water sewer pipes here were made of terracotta, and were installed in the 1980's.
5. In consideration of subs 12(b2) the pruning required on T 6 and T 6a would have minimal negative impact on the trees.
6. In answering 'No' at questions 25, 27, and 28 of Exhibit B, the applicants dismissed all the benefits that the trees provided for the respondents and the environment, which are covered in subss 12 (b3), (d), and (e) of the Trees Act. Though the trees' beauty, and contribution to enjoyment of their land are subjective to the respondents, it is obvious that the trees provide shade, considerable privacy and are likely to attract birds and other fauna.

Conclusion

1. Though T 6 has caused damage to a panel of the old common boundary fence, this can be readily repaired, along with accommodation for likely near future damage. Hinderance in corporal hereditaments regarding use of the applicants' lawn can be remedied by orders for topdressing over roots and canopy raising of T 6. None of the applicants' other damage or injury claims have satisfied the requirements of the Trees Act.
2. Given the practicality of these remedies, and with consideration for the trees' myriad environmental benefits outlined by the respondents and obvious on site, removal of any of the trees is not a reasonable remedy.
3. With respect to the applicants' proposed Order (5), for Council to be authorised to carry out works if the respondents do not satisfy the Court's orders, this is covered by s 17 of the Trees Act. The applicants' proposed Order (6), for orders to apply to successors of the respondents' land, is covered by s 16(1) of the Trees Act.
4. The orders shall require the respondents to pay for the required works, consistent with the Court's usual practice under s 9(2)(h) of the Trees Act, and the applicants' proposed Order (8).

Orders

1. The orders of the Court are: 1. Within 60 days of the date of these orders, the respondents, at their expense, shall employ AQF level 3 arborists, with all appropriate insurances, to prune Weeping Fig branches overhanging the respondents' land so as to raise the height of the Weeping Fig's canopy by approximately 2 metres, and prune branches of the Japanese Photinia growing against and towards the common boundary fence, to provide a clearance of at least 200mm between the Japanese Photinia branches and the fence. 2. Within 60 days of the date of these orders, the respondents, at their expense, shall employ a licenced landscape gardener, with all appropriate insurances, to top dress the area where Weeping Fig roots are present in the respondents' lawn with an 80:20 sand:soil mix to cover the roots by 10mm and provide a relatively flat, useable surface. 3. Within 90 days of the date of these orders, the respondents, at their expense, shall employ a fencing contractor or licenced landscape gardener, with all appropriate insurances, to replace the fence panel bowed by the Weeping Fig roots. This fence panel will need to be shortened from standard dimensions to provide a gap of approximately 20mm between the bottom plate of the fence panel and the top of the Weeping Fig roots. 4. All pruning shall be completed in accordance with AS 4373:2007 Pruning of amenity trees and Safe Work Australia, Guide to managing the risks of tree trimming and removal work, 2016. 5. The applicants shall provide access for the respondents' contractors to complete the various works upon receipt of at least 72 hours' notice by email, of the date and approximate start time of the works. 6. All works shall be completed during reasonable daytime working hours.

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: 26 June 2023