Cofrancesco & anor v Draper & anor

Cofrancesco & anor v Draper & anor - [2017] NSWLEC 1757 - NSWLEC 2017 case summary — Zoe

The Part 2 application

Section 7 of the Trees Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on an applicant's land, or to prevent injury to any person, as a consequence of a tree to which the Trees Act applies that is situated wholly or principally on adjoining land.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This 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.
Injury is not pressed.
The applicants contend that two sections of dividing fence have been damaged by plants growing on the respondents' property. Photographs in the application claim form show dead stems of bamboo leaning against the fence and causing its deflection. The respondents maintain that the stems had been cut by the applicants and placed on their side of the fence against the fence thus causing the lean. This is disputed by the applicants. Some photographs also show some green sections of bamboo projecting through the wire.
The applicants contend that plants in their garden have died or have failed to thrive because of the bamboo. The garden bed is in the north-western portion of the applicants' large allotment, and close to the bamboo.
The fence in question is along part of the common side boundary between the parties' properties; the respondents' property is on the western side of the fence. The fence is a fairly rough construction and comprises a mixture of star-picket and timber posts supporting some steel mesh panels and or chicken wire. There are two unstrained wires along the top.
Towards the northern end of the fence is a linear clump of bamboo (Phyllostachys spp). According to the first respondent's affidavit (Exhibit 1), the bamboo pre-existed the purchase of both properties and had spread across both properties. With the benefit of the site inspection during the on-site hearing, I am satisfied that the bamboo is principally on the respondents' land. The Trees (Disputes Between Regulation) 2014, prescribes bamboo and vines as trees for the purpose of the Trees Act.
The respondents have had their gardener clear the bamboo back from the fence - creating a strip of about half a metre. It was clear that some culms had been cut from the applicants' side of the fence.
To the south of the bamboo is a row of Jasminum humile (Italian Jasmine) a shrub form of Jasmine with arching canes/stems. The Jasmine overhangs and completely covers the wire and mesh metal fence. The top unstrained wire is slightly deflected by the weight of the foliage but the fence appears to be in reasonable order for its construction and materials and remains functional. The applicants were unable to indicate any specific areas of damage but remained concerned over the fact that foliage overhangs their property.
The respondents have repaired the fence in proximity to the bamboo. The first respondent stated that a number of star pickets were rusted at their base and have been replaced. The applicants are satisfied that the section of fence is fit for purpose and a replacement is longer required however they seek ongoing maintenance of the bamboo and the fence.
During the on-site hearing, questions arose as to the location of the fence in relation to the boundary. The applicants were able to produce a survey of the boundaries of their property dated 25/02/2011 (Exhibit C). The survey indicates a section of the common dividing fence and shows it to be on the respondents' land. Therefore, the Court has no jurisdiction to make any orders in regards to the fence as it is not property on an applicant's land.
In regards to the Jasmine, while it may overhang the fence, there is no evidence it is causing any damage to any property on the applicants' land and this element of the application is dismissed.
In Robson v Leischke [2008] NSWLEC 152 at [165] Preston CJ noted that the land, including the plants in it, can be defined as a corporeal hereditament and is thus property on an applicant's land. In Dias v Vaswani [2011] NSWLEC 1274 at [18] and Prowse & anor v Porter & anor [2016] NSWLEC 1135 at [26]-[27] the Court held that bamboo had caused and would continue to cause damage to the applicants' properties.
Therefore, I am satisfied to the extent required by s 10(2)(a) that the bamboo could cause damage to property on the applicants' land.
Orders will be made for the respondents to maintain the fence clear of bamboo and every three months remove/ kill any bamboo growing on the applicants' property within 5m of the dividing fence. No orders will be made for any replacement of the fence.

[4]

The Part 2A application

The applicants contend that a row of 25 Leyland Cypress trees planted along part of the common boundary severely obstruct views from their dwelling. They also submit that three deciduous trees, of one of which is described as a Liquidambar, also obstruct their views.
In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged.
The first test, in s 14A(1)(a) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge; and, if so, do they rise to a height of at least 2.5m above ground level?
I am satisfied that the Leyland Cypress trees are trees to which Part 2A applies. They are a commonly used hedging species, are closely planted in a linear arrangement, and have been maintained as a formal hedge.
The trees have been recently pruned to a height of about 4m, the height to which the respondents stated they intend to maintain them. The respondents value the trees for the privacy they afford bedroom windows and the screening they provide of two large sheds on the applicants' property.
The 'Liquidambar' is in fact a species of Maple (Acer sp) and the other trees are a group of Crepe Myrtles. The Maple, as a single specimen, well separated from the other trees, is not a tree to which Part 2A applies and thus no orders can be made for any interference with it. The arrangement and spacing of the Crepe Myrtles is such that these trees can be considered to be trees to which Part 2A applies.
The key test in applications made under Part 2A is found in 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.
While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies.
Obstruction of sunlight is not pressed.
The applicants have nominated nine viewing positions from within their dwelling. These are:

V1 - V2 through west facing living room windows
V3-V4 through south-facing living room windows
V5 - through northwest facing living room window
V6 - south-western views from large verandah
V7 - through west-facing kitchen window
V8-V9 through west facing living room windows

All windows, except V1 and V2 windows adjoin a large covered verandah.
The applicants contend that when they purchased their land in 2001 and then subsequently constructed their dwelling in 2005, the dwelling was oriented to take advantage of the views to the west and southwest of Mt Tomah in the far distance, the towns of Pitt Town and Richmond and the nearby bushland hills and valleys of Glenorie. They seek full restitution of the views they originally enjoyed. They contend that the top of the Leyland Cypress trees draw the eye to them and detract from the Eucalypts on the hills behind.
The use of the word 'are' in s 14E(2)(a) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In a number of decisions, the Court has considered the dictionary meaning of 'severe'. Perhaps the most apposite to 'hedge' cases are the words 'extreme' or 'harsh'. Thus the legislature has set a high bar in using the word 'severely' in Part 2A of the Trees Act.
With the benefit of the site inspection, I am not satisfied to the extent required by s 14E(2)(a)(ii) that any of the Leyland Cypress or the Crepe Myrtles the subject of the application are severely obstructing the views from the applicants' nominated viewing positions. Rather, the obstruction is negligible to minor. From V1 and V2 the view is extremely oblique; from V8-V9 the view in contention is obstructed in part by a shade cloth blind on the verandah, palms around the applicants' pool and a shade sail above the pool. From the other viewing positions, in particular from the large and expansive verandah, all but a small portion of the nearest vegetated hills can be seen; there is no obstruction (as a consequence of the trees to which Part 2A applies) of the mountains on the horizon and the countryside and townships in between.
As the test in s 14E(2)(a)(ii) is not met, the Court has no jurisdiction to further consider the matter and thus the Part 2A application is dismissed.

At a glance

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Judgment (5 paragraphs)

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Cases Cited (4)