Cope v Muralitharan

Cope v Muralitharan - [2022] NSWLEC 1733 - NSWLEC 2022 case summary — Zoe

[6]

Jurisdictional requirements - Pt 2

With respect to s 7 of Pt 2 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 this Act applies that is situated on adjoining land.
Ms Cope has satisfied the requirement under s 8 of the Trees Act: to serve notice to the respondent at least 21 days prior to the proceedings.
The Applicant has also satisfied s 10(1)(a) of the Trees Act; to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated. This is evidenced by a letter to the Respondents, dated 1 April 2022, clearly requesting removal of the trees, and letters displaying attempts to mediate the dispute with the assistance of a Community Justice Centre (CJC).
The next major test that is posed, by s 10(2) of the Act, is that the Court must be 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.
In her letter to the Respondent, the Applicant provided the following reasons for her tree removal request: 1. The trees are overhanging into our property and preventing our ability to park 2 cars on our driveway. It should be noted that our boundary line is 20cm from the corner of our premises towards your (the Respondents') property. 2. The trees are obstructing the safe exiting of cars out of our driveway. 3. The roots of the trees are lifting the pavers on our existing driveway. We are replacing the driveway with concrete and have been advised that the roots will need to be removed to lay the formwork and attempt to avoid future damage.
There is evidence of a small area of minor uplift of pavers at the edge of the driveway, close to the tree bases, which, in the absence of another reasonable explanation, I consider, on the balance of probabilities, has been caused by roots of at least one of these trees.
Though this damage is minor, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 indicates that even relatively minor damage engages the Court's jurisdiction. Therefore, as a consequence, s 10(2)(a) of the Trees Act is engaged.
Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2), but it can be relevant in determining what orders, if any, should be made.

[7]

Discretionary matters - s 12

In contemplating an order following the engagement of s 10(2), the Court is required to considers relevant matters in s 12 of the Trees Act, as follows:

The trees are located in the Respondents' front yard close to the common boundary (s 12(a)).
Only minor pruning is required to clear any overhanging foliage that may be restricting the parking of 2 cars in the driveway. In their letter of 17 October 2022, the Respondents note they "are happy for neighbours to cut the roots and prune the branches that were overhanging to their side". This species of conifer is widely known to tolerate pruning and is often used in formal hedges where regular clipping is required. The advice the Applicant received from a Council officer or from a horticulturist about pruning being likely to kill the trees was thus poor and unreliable, and this is evidenced by the dense tight regrowth which the tree produced after pruning by the Respondents, and more recently, by the Council arborist. Having said this, many conifers do struggle to regrow after heavy pruning, but this species is a known exception (s 12(b2)).
The Respondents note the significance of the trees in providing a fence, privacy, shade during summer, "a landscaping feature to our property", and habitat for native birds. Being conspicuous in the front yard, the trees also provide intrinsic value to public amenity (s 12(b3),(d),(f)).
Subsection 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. As noted at [56] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), "Mere encroachment into the neighbour's land is insufficient to complete a cause of action for nuisance; special damage must be suffered by the neighbour as a result of the encroachment to obtain the remedies of damages or injunction". There is no remedy available under the Trees Act arising from the encroachment of branches or roots across boundaries unless they also cause damage. As any encroaching foliage could have easily been cleared by pruning, the Court considers this under s 12(i), as a "failure of an applicant to maintain their own property".
Subsection 12(i) also considers the "Age and nature of the structure", which was submitted by the Respondents as an influence on the condition of the paved driveway. This is a reasonable claim, but I remain satisfied that tree roots are largely responsible for the minor uplift.

[10]

Do the trees form a hedge?

The first test is s 14A(1) of the Trees Act, that is, are the trees a hedge for the purpose of the Act?
Section 14A(1) states: (1) This Part 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).
The trees were planted and rise to a height of about 6.5 m, and thus s 14A(1) of the Trees Act is engaged.
Section 14E(1)(a) of the Trees Act requires that the applicant has made a reasonable attempt to reach agreement with the owner of the land on which the trees are situated, and s 14E(1)(b) requires that the applicant has given notice in accordance with 14C (if this requirement to give notice has not been waived by the Court).
These requirements are effectively identical to those at s 10(1)(a) and s 10(1)(b) respectively, of Pt 2 of the Trees Act, which the Applicant has already satisfied. Therefore, s 14E(1)(a) and s 14E(1)(b) of the Trees Act are engaged.
Next, the jurisdiction requires assessment of the severity of the obstruction of all or any of the views from the applicant's dwelling as a consequence of any or all of the trees in the hedge.
Section 14E(2)(a)(ii) states: (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned … (ii) are severely obstructing a view from a dwelling situated on the applicant's land
The issue on which the Ms Cope based her application under Pt 2A was the hedge severely obstructing views of the adjacent road from her front yard, but this does not engage the jurisdiction of the Trees Act, because s 14E(2)(a)(ii) is limited to hedges which are "severely obstructing a view from a dwelling situated on the applicant's land".
There are no views of the hedge available from the dwelling and thus s 14E(2)(a)(ii) is not engaged, and I have no jurisdiction to make orders. Consequently, this application under Pt 2A of the Trees Act is also refused.

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Judgment (13 paragraphs)

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