Cattell & Anor v Riordan & Anor

Mr S Nash - Barrister (Respondent) File Number(s): 20379 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1This is an application pursuant to s 7 of pt 2 and s 14B of pt 2A of the Tree (Dispute Between Neighbours) Act 2006 (the Act) made by the owners of a property in Glaisher Parade, Cronulla against the owners of trees on an adjoining property. 2The applicants seek orders for the pruning of the respondents' three Lilly Pilly trees to a height of 3.5 m and for that height to be maintained at the respondents' cost. 3The orders are sought first on the basis that the trees are said to be likely to cause damage to the applicants' storm water pipe and secondly on the basis that the trees severely obstruct a view from the applicants' dwelling. 4The hearing commenced onsite at the applicants' property. Mr Richards, an arborist, was retained by the respondents and assisted the Court at the hearing. 5The applicants' claim is in two parts. First, I will address the claim under s 7 pt 2 of the Act under which the applicants contend that the respondents' three Lilly Pilly trees ( Syzigium australe ) that are growing adjacent to their side boundary are likely in the near future to cause damage to their storm water pipe. The applicants said they understood the "near future" to be a period of 12 months as adopted in the past by the Court, consistent with the guidance given in Yang v Scerri [2007] NSWLEC 592. 6The applicants say the stormwater pipe is constructed of PVC and is about seven years old, being the same age as their house. They say that damage has not occurred, but they say they have had problems with their sewer line at another part of their property where they say that roots from a tree of the same species as those growing on the respondents' land have damaged their sewer line. 7Mr Richards offered an opinion that the respondents' Lilly Pilly trees would be unlikely to cause damage to a properly constructed PVC storm water pipe and in view of the age of the pipe and the fact that there is no evidence of any damage having occurred I see no reason to state otherwise. 8Under s 10(2) of the Act, the Court must not make an order under this part unless it is satisfied that the tree concerned has caused, is causing or is likely in the near future to cause damage to the applicants' property. 9There is no damage that has been caused by either or any of the three trees, and no damage is currently being caused, and there is no likelihood of any of the trees causing damage to the applicants' stormwater pipe in the near future. 10As a consequence, the Court's jurisdiction is not enlivened and no order can be made. Therefore, the application under pt 2 is dismissed. 11I turn now to the second element of the applicant's claim made pursuant to s 14B of pt 2A of the Act. 12The applicants claim that the respondents' trees T1, T2 and T3 severely obstruct a view from their dwelling. 13The three trees are a species of Lilly Pilly commonly referred to as Brush Cherry (Syzigium australe). They are planted close to and along the rear northern boundary of the respondents' property. They are about 5 to 5.5 m in height, with the foliage interlocking to form a hedge. 14The viewing point is from the applicants' living room window that has a southerly aspect toward Port Hacking and the Royal National Park in the distance. A photograph tendered in the applicants' submission, taken in 2003, shows the view from a standing position as a panorama comprising a distant view of sandy shoreline, water and national park behind. For the most part, the beach and water elements are viewed as a thin horizontal line just about the ridge cap of the respondents' roofline, although the extent of this aspect of the view would vary subject to the height of the observer. The most easterly section of the view frame provides a potentially more extensive view of the waters of Port Hacking and the national park in the distance. This part of the view is achieved through a relatively narrow gap between the respondent's roofline and the second storey deck and roof of an adjacent property to the east. The 2003 photograph shows a palm tree in the foreground punctuating that part of the view, however the view is clearly of water and distant shoreline. This component of the overall water view comprises about 25 to 30% of the available panorama from the window. The foreground elements of the view include the respondents' roof and solar fixture. 15In determining whether the obstruction of the view in this case is a severe obstruction I refer to Haindl v Daisch [2011] NSWLEC 1145 in which Moore SC and Hewett AC at 64 made the following observation that I consider relevant to these proceedings: As in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both quantitative and qualitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blankwalled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point. 16At the time of the hearing, trees T1, T2 and parts of T3 obscured greater than 90% of the view from this window as shown in the 2003 photograph. At the time of the hearing, I could not see any water or foreshore sand line as a direct consequence of the respondents' trees and although the view incorporates a close view of the respondents tile roof and solar heater, I consider the more distant view to be a view of some quality incorporating elements as already described. I therefore consider the obstruction of that view to be severe. 17In the course of considering the view from the applicants' living room, the parties explored options for obtaining some re-instatement of the 2003 view whilst also retaining the respondents' privacy. 18Arborist Richards proposed pruning by way of reduction pruning. He suggested cutting out some branches whilst retaining others at the existing height, so that the view would be achievable through the trees as opposed to having the trees "lopped", as he described, it to a specified height. 19The applicants were not disposed to this approach. They say they would prefer a complete reduction to a modest height that would allow their view, as well as retain their neighbours' privacy. 20The applicants were particularly concerned at the potential future height of the trees, which they say is likely to be considerably higher than stated by Mr Richards in his tree report. They pointed out the large size of another instance of a Lilly Pilly on an adjoining property as an illustration of this potential. Mr Richards was of the opinion that the respondents' trees would not achieve a similar size to the tree to which the applicants pointed, as he considered the respondents' property had shallow soils evidenced by exposed sandstone rocks in front of the respondents' property. 21Mr Richards' report states that the three Syzigium australe will grow from between 4 to 6 m. My observations on the respondents' land at the time of the hearing and in other locations, is that the species is likely to achieve considerably greater proportions than suggested by Mr Richards.