Dive v Lin and Liu

The Commissioner's decision is appealed

1. Mr Dive appealed under s 56A(1) of the Land and Environment Court Act 1979 ('the Court Act') against the Commissioner's decision and order. Mr Dive contended that the Commissioner erred on a question of law in the construction and application of the phrase "adjoining land" in s 7 of the Trees Act. Mr Dive submitted that the Commissioner construed the phrase "adjoining land" too narrowly so as to exclude the respondents' land.
2. First, Mr Dive submitted that previous decisions of the Court, in P Baer Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128 and Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, had accepted that "adjoining land" was not limited to "land which is contiguous or touching, but extends to land separated by other land", provided there was a relevant connection between the two properties. Mr Dive submitted that the connecting factor was that "the tree growing on one property is capable of causing damage to the other property or injuring persons on that other property", citing Robson v Leischke at [157].
3. Mr Dive also referred to Royal Oak Pastoral Co v Mulwaree Shire Council [1997] NSWLEC 5 where Pearlman CJ considered the meaning of an "existing holding", which was defined to be "where…a person owned two or more adjoining or adjacent lots, portions or parcels of land, the aggregation of the areas of those lots, portions or parcels" as they were at a specified date. Pearlman CJ noted that the words "adjoining" or "adjacent" are not words of exactitude and "their meaning must be determined having regard to the scope and purpose of the subject matter and the circumstances of the case". Pearlman CJ also quoted the passage from Cave v Horsell [1912] 3 KB 533 at 544: "There are three words, 'adjoining,' 'adjacent,' and 'contiguous,' which lie not far apart in the meaning which they convey. But of no one of them can its meaning be stated with exactitude and without exception. As to 'adjoining,' the expression 'next adjoining' or 'immediately adjoining' is common and legitimate. This expression at once conveys that two things may adjoin which are not next to each other. 'Adjacent' conveys that which lies 'near to' rather than that which lies 'next to.' 'Contiguous' is perhaps of all three the least exact. Any one of the three may by its context be shewn to convey 'neighbouring' without the necessity of physical contact."
4. Second, Mr Dive submitted that nothing said in P Baer or Robson justified the distinction made by the Commissioner in [15] of his judgment. There, the Commissioner distinguished the situation discussed in [157] of Robson of "properties separated by a relatively narrow section of public land, such as a road or laneway, or an easement" from the case before him "where the applicant's land is separated from the respondents' by another residential allotment." Mr Dive noted that the decisions in P Baer and Robson accepted that land could be adjoining land notwithstanding that there was intervening land between the applicant's land and the land on which the tree is situated. Those decisions referenced the situations where the intervening land was a public road or an easement. Mr Dive submitted, however, that those decisions did not limit the situations to only public roads or easements and preclude other situations such as the present situation of a narrow residential allotment being the intervening land. Mr Dive submitted that the Commissioner was in error in elevating the factual situations referenced in P Baer and Robson into statements of principle.
5. Third, Mr Dive submitted that the Commissioner erred in not attempting a purposive interpretation of the phrase "adjoining land" in the Trees Act. Mr Dive submitted that: "…the Trees Act is beneficial legislation. Its scope and purpose was to provide an additional, and easier set of remedies for persons affected by trees which posed relevant dangers to property or life. Its provisions should be construed liberally".
6. Mr Dive submitted that a purposive interpretation supported construing the phrase to simply require that there by a relevant connection between the applicant's land and the land on which the tree is situated and that the connecting factor is the capacity of the tree to cause damage to property or a risk of injury to people on the applicant's land. This was the connecting factor referred to in [157] of Robson and it is supported by the purpose of the Trees Act.
7. The respondents, Mr Lin and Ms Liu, chronicled the history of dealings between Mr Dive and the respondents regarding Mr Dive's request for the tree to be removed. The respondents also noted that the situation has changed since the hearing of the application by the Commissioner on 3 July 2017. Sydney City Council has since granted approval for the respondents to remove all of the top of the tree down to 10 metres above ground level. On 21 September 2017, the respondents arranged for the tree to be removed to 10 metres above ground level. The lower tree has reduced (but not eliminated) the propensity for the tree to cause damage to property or injury to persons on Mr Dive's land. Mr Dive gave evidence that after the removal of the top of the tree, a lower branch that still extended over his property, broke off.

The Commissioner did not err on a question of law

1. I find that the Commissioner did not err in law in his construction and application of the phrase "adjoining land" in s 7 of the Trees Act. The respondents' property at 21 Caroline Street was not "adjoining land" to Mr Dive's property at 17 Caroline Street. There was the intervening residential property of 19 Caroline Street that was sufficient to cause the properties at 17 and 21 Caroline Street not to be "adjoining".
2. The word "adjoining" can mean "physical contiguity" (such as abutment) but can also extend to "close physical proximity", depending on the context in which it is used: see Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 433. Words are chameleons that take colour from their context. Different statutes use the word "adjoining" for different purposes. Care must be taken, therefore, in transposing the meaning of "adjoining" or "adjoins" in different statutes to the phrase "adjoining land" in the Trees Act.
3. In P Baer, the Commissioners did consider that the meaning given by the Court of Appeal in Hornsby Shire Council v Malcolm to the word "adjoins" in State Environmental Planning Policy No 5 - Housing for the Aged or Disabled Persons, made under the Environmental Planning and Assessment Act 1979, should be adopted as applicable to similar wording in the Trees Act: see at [6] of P Baer. The Court of Appeal in Hornsby Shire Council v Malcolm was dealing with a clause of the Policy that required the consent authority not to grant consent for development for the purpose of housing for aged or disabled persons on land unless it was satisfied that "the land is within or adjoins land zoned for urban uses". The land proposed to be developed in that case was separated from land zoned for urban uses (Galston Village) by land 15 metres wide zoned open space - roadside reserve on which was constructed a public road (Mid Dural Road).
4. Kirby P had regard to the purpose of the requirement in the Policy that homes for the aged or disabled should be constructed within or in close physical proximity to urban areas and their facilities. Kirby P firstly held that the separation of the proposed development site from Galston Village was not such a distance as properly to fall outside the description of abutment. He noted that: "[r]oads and roadside reserves exist as a normal feature of urban development. In the present case there was no separate development between land undoubtedly zoned for urban use and the proposed development": at 434.
5. Secondly, Kirby P held that even if there was no strict abutment, because of the lack of physical contiguity, there was still sufficient proximity to bring the proposed development within the word "adjoins" in the context of the clause in the Policy: at 434.
6. Glass JA, with whom Mahoney JA agreed, similarly held that the proposed development site, which was separated from urban land zoned for urban uses by no more than a public road, adjoins such land: at 443.
7. Kirby P added, however, that "[i]t is not appropriate in the present facts to speculate upon what would be the case if there were a separation between land zoned for urban uses and the proposed development site other than a road and roadside reserve": at 434.
8. The Court of Appeal's approach to the construction of the word "adjoins" in that Policy has been followed in the construction of the word "adjoins" in the replacement State Environmental Planning Policy (Seniors Living) 2004: see ACN 115 840 509 Pty Ltd v Kiama Municipal Council (2006) 145 LGERA 147; [2006] NSWLEC 151 and cases cited.
9. In P Baer, the applicant's property was separated from the property on which the tree was situated by a public road. The Commissioners (Moore C and Fakes AC) held that, although there was not physical contiguity between the two properties, there was sufficient physical proximity such that they could be "adjoining" for the purposes of the Trees Act: at [6] and [7].
10. In Robson, the applicant's property and the property on which the tree was located were abutting, that is to say there was physical contiguity between the properties. The discussion of the phrase "adjoining land" in s 7 of the Trees Act in Robson was, therefore, obiter dicta. I said at [157]: "Apart from determining on which land the tree is situated, it is also a requirement under s 7 of the Trees (Disputes Between Neighbours) Act that the tree be situated on 'adjoining land'. The concept of 'adjoining land' evidently includes properties that abut each other, but might also include properties that are separated by other land, such as a public road or drainage easement, provided there is a relevant connection in the sense that the tree growing on one property is capable of causing damage to the other property or injuring persons on that other property: see P Baer Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128 at [2]-[7] (15 March 2007), per Moore C, Fakes AC."
11. This obiter statement accepts that land that abuts other land, so that there is physical contiguity, is adjoining land but also accepts that land with no physical contiguity to other land "might" still be adjoining land, but it will depend on the circumstances and the cause of the lack of contiguity.
12. The statement gave two examples of intervening land, a public road and a drainage easement, which "might" not cause the two lands to fall outside the description of being "adjoining".
13. The example of a public road came from the decisions in P Baer and Hornsby Shire Council v Malcolm. In the latter case, the context of the Policy in which the word "adjoins" was used was important for the Court of Appeal's holding. The purpose of requiring the proposed development to be on land that adjoins land zoned for urban uses would not be frustrated by the proposed development site being across the road from land zoned for urban uses. Indeed, roads are a normal feature of urban development. In that case, the road provided access between the proposed development site and the Galston Village area zoned for urban uses. The road was also not developed for any other purpose. The road, therefore, did not break the connectivity between the proposed development site and the land zoned for urban uses. That statutory context may be different to the context in which "adjoining land" is used in the Trees Act.
14. In P Baer, the Commissioners considered that there was sufficiently close physical proximity between the applicant's land and the land on which the tree was situated, notwithstanding the existence of a public road separating the two properties, so that they could be said to be "adjoining" for the purpose of the Trees Act.
15. Although the Commissioners in P Baer considered that the construction of "adjoins" by the Court of Appeal in Hornsby Shire Council v Malcolm should be adopted as applicable to similar wording in s 7 of the Trees Act (see at [6]), there are differences in the language and the context of the language, as well as the underlying policy, between the legislative instrument of the Policy considered in Hornsby Shire Council v Malcolm and the Trees Act. The reasons given by the Court of Appeal for finding that the public road separating the proposed development site from the land zoned for urban uses did not cause the former not to adjoin the latter do not have the same force when applied to s 7 of the Trees Act.
16. Moreover, the Commissioners made a factual finding in P Baer that the intervening road separating the two properties did not cause the properties not to be adjoining. However, this cannot be regarded as a universal statement of principle. By their finding, the Commissioners must have considered that the public road in that case was not of such a nature and extent as to cause the two properties not to be adjoining. Other public roads, however, might have a different effect. A six lane freeway, with median and shoulder reserves, and perhaps other development, might be sufficient to deny properties either side of the freeway the characterisation of being "adjoining".
17. The other example I gave in Robson was of a drainage easement. A drainage easement burdening a strip of land on either of two neighbouring properties would not cause those properties not to be adjoining. It matters not which land is burdened by the easement. The dominant tenement would adjoin the servient tenement. If the drainage easement was over another property owned by a third person (such as a Council drainage reserve), and this land separated the two properties, it would depend on the particular facts and circumstances (including the nature and extent of the easement and whether it was developed) whether the two properties could be characterised as being adjoining, notwithstanding the intervening drainage easement.
18. The Commissioner in the present case recognised that "public land, such as a road or laneway, or an easement, might be considered 'adjoining'" (at [15]). He considered, however, that those situations were different to the present case "where the applicant's land is separated from the respondents' by another residential allotment" (at [15]). This was a finding of fact. The Commissioner did not elevate the factual situations discussed in P Baer and Robson to statements of principle. He was not saying that the only situation where separated properties can be considered "adjoining" is if the intervening land is public land or an easement. He was simply noting that the present case did not involve those situations. Hence, he could not apply those decisions directly. Instead, he had to, and did, make his own factual finding that where the applicant's land is separated from the respondents' land by another residential allotment, the properties are not adjoining. I do not find, therefore, that the Commissioner erred in his consideration and application of the decisions in P Baer and Robson.
19. Mr Dive submitted that the Commissioner erred in limiting the dicta in P Baer and Robson to situations where the intervening land was a public road or an easement and not including other situations, such as the present case, where the intervening land is a narrow residential allotment. I disagree. It is true that neither P Baer or Robson expressly excluded other situations than a public road (determined in P Baer to not prevent the properties being adjoining) or a public road or a drainage easement (given as examples in Robson). But equally neither decision held that other situations, and in particular the situation where the intervening land is a developed residential allotment, will not cause separated properties not to be adjoining. In Hornsby Shire Council v Malcolm, Kirby P expressly limited the holding in that case to the situation where the intervening land was a road and roadside reserve.
20. Indeed, no judicial decision so far under the Trees Act has held that the circumstance involved in the present case (two properties separated by a developed residential allotment) results in the separated properties being adjoining. And there is good reason for this. The intervention of a residential allotment on which a dwelling and other structures have been built between the applicant's property and the property in which the tree is situated is a sufficient disconnection as to cause the separated properties not to be properly characterised as "adjoining".
21. I also do not consider that the Commissioner erred in his interpretation of the phrase "adjoining land" in the Trees Act. Mr Dive submitted that, as the Trees Act is beneficial legislation, it should be construed liberally, so as to allow an applicant to seek orders in relation to a tree growing on any land separated from the applicant's land by other land, provided the tree has a capacity to cause damage to property or injury to persons on the applicant's land. On this approach, "adjoining land" is any land on which is situated a tree that has that capacity to cause damage to property or injury to persons on the applicant's land.
22. Mr Dive submitted that this approach was supported by the statement in [157] of Robson that land separated by other land can be adjoining "provided that there is a relevant connection in the sense that the tree growing on one property is capable of causing damage to the other property or injuring persons on that other property."
23. I do not agree with Mr Dive's construction of "adjoining land." First, my statement in [157] of Robson about connection did not, and was not intended to, substitute a different test for the requirement of the Trees Act that the tree be situated on "adjoining land". The mere fact that a tree growing on one property is capable of causing damage to another property or injuring persons on that other property does not necessarily cause the first property to be "adjoining land" to the other property. The statement about connection did not, and was not intended to, expand the circumstances in which two properties, separated by intervening land, could be considered to be adjoining, but rather was intended to qualify or limit the circumstances where separated properties could be considered to be adjoining.
24. Considering the issue further now, my view is that the statement about connection in [157] of Robson probably adds little if anything to the statutory requirements of Part 2 of the Trees Act. Part 2 of the Trees Act sets the jurisdictional requirement that the tree (situated on adjoining land) cause damage to property or a risk of injury to any person on the applicant's land. Under s 10(2), the Court must not make an order 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."
25. In these circumstances, to require as a criterion of connection, in order for two separated properties to be "adjoining", that the tree growing on one property be capable of causing damage to the other property or injuring persons on that other property, adds little if anything to the statutory requirement that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to other property or is likely to cause injury to any person.
26. Second, Mr Dive's construction, that an applicant should be able to seek orders in relation to a tree growing on any land separated from the applicant's land by other land, provided the tree is capable of causing damage to property or injury to persons on the applicant's land, would give the words "adjoining land" in s 7 of the Trees Act no work to do. Part 2 of the Trees Act already sets the jurisdictional requirement that the tree concerned cause damage to the applicant's property or a risk of injury to any person on that property. If satisfaction of this jurisdictional requirement was all that was necessary for the Court to make an order with respect to a tree, there would have been no need for the requirement that the tree concerned be situated on "adjoining land". Yet, this requirement was included in the legislation. It must, therefore, add some criterion beyond the requirement that the tree be capable of causing damage to property or a risk of injury to persons on the applicant's land. This criterion is that the two properties, the applicant's land and the land on which the tree is situated, have physical contiguity or sufficiently close physical proximity as parcels of land so that they can fall within the statutory description of being "adjoining".
27. Third, Mr Dive's construction of the phrase "adjoining land" in Part 2 cannot apply to the same phrase in Part 2A of the Trees Act. Part 2 of the Trees Act concerns trees on adjoining land that cause damage to property or risk of injury to persons on the applicant's land. Part 2A of the Trees Act concerns trees on adjoining land that form a hedge and severely obstruct sunlight to a window of a dwelling on or any view from a dwelling on the applicant's land. Part 2A was added later to the Trees Act by Sch 1 to the Trees (Disputes Between Neighbours) Amendment Act 2010, after the decision in Robson was given.
28. Under s 14B of the Trees Act, an owner of land may apply for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling situated on the land or any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which Part 2A applies being "situated on adjoining land". Under s 14D(1), the Court may make such orders as it thinks fit to remedy, restrain or prevent such severe obstruction of sunlight or views. However, under s 14E(2), the Court must not make such an order 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."
29. Mr Dive's posited connecting factor in order for two properties to be adjoining, that the tree on one property have the capacity to cause damage to property or a risk of injury to persons on the applicant's property, has no relevance or applicability to applications under Part 2A of the Trees Act that must satisfy different criteria of impact of the tree than the criteria that applications under Part 2 of the Trees Act must satisfy.
30. In response, Mr Dive alternatively submitted that there was a different connecting factor in order for two properties to be adjoining for the purposes of Part 2A, namely that the trees that form the hedge on one property have the capacity to severely obstruct sunlight to a window of a dwelling or any view from the dwelling on the applicant's property.
31. I reject this alternative argument. First, as with the posited connecting factor for Part 2, this alternative connecting factor adds nothing to the jurisdictional requirement in ss 14B, 14D(1) and 14E(2) of the Trees Act. Second, the same phrase "adjoining land" is used in Part 2 and Part 2A of the Trees Act. It has the same meaning, not different meanings, in each Part. There cannot be different criteria for determining whether land on which a tree or trees are situated is adjoining land under Part 2 and Part 2A. Nothing in the text, context or purpose of the Trees Act would support construing "adjoining land" differently in Part 2 and Part 2A.
32. Third, a differing construction of the phrase "adjoining land" in Part 2 and Part 2A of the Trees Act would lead to perverse consequences. An application might be able to be made for trees situated on a property under one Part but not for the same trees situated on the same property under the other Part, depending on the capacity of the trees to cause the relevant impact (damage to property or injury to persons for Part 2 or severe obstruction of sunlight or views for Part 2A). The same property would be "adjoining land" for the purpose of one Part but not "adjoining land" for the purpose of the other Part, even though the trees and the land on which the trees are situated are the same.
33. Land could also gain or lose the characterisation of being "adjoining land" depending on the circumstances of the tree or trees situated on the land at any particular point of time (such as the type, state of growth and health and condition of the tree and the management and maintenance of the tree). In the present case, for example, on Mr Dive's argument, the respondents' land would be adjoining land whilesoever the tree on the respondents' land had the capacity to cause damage to property or injury to persons on Mr Dive's property, but once the top of the tree was removed and the branches cut back so that it no longer had that capacity, the respondents' land would no longer be "adjoining land". The land on which the tree is situated itself has not changed, or its relationship of proximity to Mr Dive's property, only the state and circumstances of the tree have changed.
34. Similarly, in relation to trees forming a hedge under Part 2A, land on which the trees are situated would be adjoining land whilesoever they had the capacity to severely obstruct sunlight or views from the applicant's land, but if pruned so as to no longer have that capacity, the land would lose the characterisation of being adjoining land. The land on which the trees forming the hedge are situated would gain or lose the characterisation of being adjoining land depending on the growth or pruning of the hedge.
35. Moreover, in relation to Part 2A, the nature of Mr Dive's posited connecting factor is such as to expand considerably the range of properties that could fall within the category of "adjoining land". Any land on which trees forming a hedge have the capacity to obstruct views from the applicant's land, for example, could be adjoining land, however distant in terms of physical proximity the land is from the applicant's land. A high hedge on land on the foreshore might obstruct views to the water from dwellings on properties high on a hill and far away from the land on which the hedge is situated. Yet, on Mr Dive's argument, the land on the foreshore would be adjoining land.
36. These perverse consequences speak against construing the phrase "adjoining land" in the ways contended for by Mr Dive. Rather, whether two properties are "adjoining" for the purposes of Part 2 and Part 2A of the Trees Act must depend on the relationship of proximity between the two properties themselves and not on the potential impact that a tree situated on one property might have on the other property.
37. For these reasons, Mr Dive has not established that the Commissioner erred on a question of law in making his decision and order dismissing the application. The appeal should be dismissed.

Costs should not be ordered

1. The respondents have been successful in defending the appeal brought by the applicant. They seek an order that Mr Dive pay various costs associated with the tree removal application, the proceedings before the Commissioner and this appeal, and for lost income.
2. The ordinary rule on an appeal under s 56A of the Court Act is that costs follow the event. The local rule in r 3.7 of the Land and Environment Court Rules 2007 does not apply to appeals under s 56A of the Court Act. The ordinary rule in s 98(1) of the Civil Procedure Act 2005 and r 42.1 of the Uniform Civil Procedure Rules 2005 is that costs follow the event, being the outcome of the proceedings.
3. The High Court held in Cachia v Hanes (1994) 179 CLR 403 that the costs for which rules of court provide are confined to money paid or liabilities incurred for professional legal services and do not include compensation for time spent by a litigant in person who is not a lawyer in preparing and conducting his case: at 409, 410-411, 414. However, an order for costs can include reimbursement of expenses incurred in the proceedings. A litigant in person is entitled to be reimbursed for out-of-pocket expenses incurred in and for the purposes of litigating the proceedings: see also Cachia v The Hills Shire Council (2010) 210 LGERA 191; [2010] NSWLEC 136 at [29]-[31].
4. The respondents were not legally represented in the proceedings before the Commissioner or on the appeal. They are not, therefore, entitled to legal costs. Nevertheless, the respondents sought recovery of the costs they incurred for the removal of the top part of the tree and for the lost time and income of the respondents in preparing the tree removal application and documents for the proceedings before the Commissioner and this appeal and in attending court on each occasion. However, as Cachia v Hanes makes plain, the respondents are not entitled to recover such costs and lost income.
5. The most the respondents could recover are any out-of-pocket expenses incurred in and for the purpose of the appeal. The respondents have not identified any such expenses. The costs associated with the tree removal relate to the separate process of application to and approval by Sydney City Council, which was unrelated to the proceedings and appeal in this Court. The lost income of the respondents in responding to the proceedings and the appeal, including by preparing documents and attending court, are not out-of-pocket expenses.
6. The only potential out-of-pocket expense identified was interpreter fees. If the respondents engaged an interpreter to assist them in defending the appeal the expense might answer the description of being an expense incurred in and for the purpose of the appeal. The respondents have not proven by admissible evidence the precise quantum of this expense or that it has been or will be paid by the respondents. Mr Lin stated that the cost of the interpreter was $100 per hour for 12 hours. But whether all of these 12 hours were used to prepare for and conduct the defence of the appeal (rather than other purposes) was not established. The respondents have also not established why the use of an interpreter was necessary in order for the respondents to prepare for and defend the appeal. Mr Lin's understanding and use of the English language is adequate. The written response he prepared and filed with the Court on this appeal displays a good understanding and use of the English language. The email correspondence between Mr Lin and Mr Dive similarly displays a fluency in English. Mr Lin appeared and made submissions on the hearing of this appeal without the use of an interpreter and did so perfectly adequately.
7. In the circumstances, the respondents have not established that it would be fair and reasonable for Mr Dive to be ordered to reimburse the respondents for the expense of an interpreter.
8. Accordingly, there should be no order as to costs.

The orders

1. The Court orders that the appeal is dismissed.

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: 17 November 2017