Djordjevic v Nakhla

The onsite hearing

1. Both parties attended the hearing, which commenced with an inspection of the trees in the rear yard of the respondent's property. The Lilly Pilly's were approximately 6.5 m tall, while the European Olive was about 5 m tall, with relatively sparse foliage.
2. The Court next inspected the applicant's back yard where the impact of the trees was assessed, prior to oral submissions. I confirmed the respondent's claim that the Olive was not on the parties' common boundary but was located about 1.5 m south of the applicant's south side boundary.
3. The application under Pt 2 of the Trees Act shall be addressed initially.

Jurisdictional requirements - Part 2

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. The Court is obliged to consider various matters pursuant to s 10 of the Trees Act.
3. Section 10(1)(a) of the Trees Act, requiring a reasonable effort by the applicant to reach agreement with the owner/s of the land on which the tree is located is satisfied.
4. The applicant liaised with the respondent, seeking removal of the trees, and attempted to organise mediation through a Community Justice Centre, which the respondent declined. This is sufficient to be considered "a reasonable effort to reach agreement", thus s 10(1)(a) is engaged. There is no requirement for the respondent to agree to mediation.
5. 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.

The applicant's damage claims

1. At question 4 of his Tree Dispute Claim Details (Form H), the applicant claimed that, "T1 and T2 (the Lilly Pilly's) had created a considerable nuisance and a high burden of maintenance to clean up the fruit capsules and stamens. This has caused damage to the pool filters by clogging the filters and preventing the pool to be clean. This has blocked the drains, created black stains on the drain covers, and black stains on the tiles".
2. A portfolio of about 50 photographs which accompanied the application showed stamens and small leaves on the tiles, near metal drain grates, and in the skimmer box, as well as fruit on tile surfaces, in the automatic pool vacuum and in the basket of the filter.
3. Mr Djordjevic further submitted that; "The girth of the trunk and scaffold branches of the trees at maturity are highly likely to adversely impact the common boundary fence and may cause additional direct impact to the site such as cracking and displacement of the concrete area that surrounds the pool. Additionally, the trees can also further cause damage to the fibre glass pool."

Findings

1. Many applications that come before the Court under the Trees Act are characterised, as in this case, by annoyance or discomfort from debris from trees falling or blowing onto neighbouring properties.
2. Consequently, in Barker v Kyriakides [2007] NSWLEC 292 (Barker), at [20], Moore C, Hussey C and Fakes AC introduced a tree dispute principle to address such issues. This Tree Dispute Principle states; "It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree."
3. The tree dispute principle established in Barker has been consistently applied by the Court and it applies here with respect to all tree debris described by the applicant, observed on his land, and shown in the applicant's extensive portfolio of photographs.
4. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), the Chief Judge, Preston CJ, provides similar commentary, at [171]: "However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind, is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."
5. In Hendry v Olsson [2010] NSWLEC 1302 at [11] to [14], the maintenance expectation arising from Barker was extended to include the cleaning of mould and slime, which is often accomplished with high pressure water or application of diluted acid. The applicant's claim arising from "black stains" on drain covers or tiles is thus also refused.
6. While the applicant may have preferred that the respondent did not plant his trees, when a two-storey dwelling is constructed in an adjacent property with scope for overlooking into one's house and yard, it is reasonable to expect that a neighbour may take measures to enhance privacy. Tree planting is commonly employed for this purpose.
7. Considering the applicant's claim of damage "by clogging the filters and preventing the pool to be clean" in this context, the respondent had granted permission and encouraged the applicant to prune the trees' foliage which overhung the common boundary. This relatively straightforward maintenance could have significantly reduced falling debris by isolating most of it to the respondent's land, but the applicant chose not to do this.
8. Similarly, a pool cover would be an obvious means of mitigating the extent of debris, but the applicant rejected this on the basis that some debris would still reach the pool. Some may, but most would not. The Court inspects many situations where pools and trees co-exist with little supplementary maintenance required because of pool covers which extend beyond the water's edge. It is reasonable to expect that trees growing in urban areas may shed debris beyond tree owners' land. Even where trees do not directly overhang pools, it is common for pool owners to employ pool covers to manage debris that may blow in from trees in neighbouring properties.
9. These two measures would significantly reduce the propensity for stamens to block drains, or for seeds to damage the wheels of the automatic pool vacuum, or the pool pump. Further, just as deciduous trees mainly shed leaves in autumn, flowering and fruiting is seasonal, thus the requirement for more vigilant maintenance is likely to occur at predictable periods of each year, rather than being constant. Many pool owners employ a fine mesh cloth over skimmer boxes during flowering and/or fruiting of adjacent trees, but the applicant also rejected this suggestion.
10. Though the applicant claimed the occurrence of damage described above, he provided no evidence, such as paid invoices for equipment repair, to substantiate these claims.
11. Had damage been proven, and s 10(a) of the Trees Act engaged, the Court is required to consider relevant factors in s 12 of the Trees Act, prior to making orders. Subsection 12 (h)(i) considers: "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 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."
12. Given the relative ease of pruning foliage overhanging the boundary, which was permitted and encouraged by the respondent, it is reasonable to consider this an "omission by the applicant" in failing to maintain his own property. As all maintenance described by the applicant may be considered reasonable for a pool owner, it falls under the tree dispute principle in Barker.
13. The applicant's claim of tree debris blocking drains is also resolved through the maintenance expectation arising from Barker, and the quantity of debris at issue would have been reduced if the applicant had pruned overhanging foliage. The surface drains at issue also appeared to be poorly designed for their role, and 'poor design' is another factor which is considered in s 12 (h)(i) of the Trees Act. The metal drain grates had unusually narrow slits for water entry which enhanced the likelihood of clogging, relative to standard drain grates. It appeared that the selection of the grates may have prioritised style over function.
14. As the applicant has provided no substantiated evidence to support his submissions, the claims of damage, above at [17], are refused.
15. The applicant submitted that, "at maturity", the trees' trunks and branches are likely to damage the common boundary fence, that "may cause additional direct impact to the site such as cracking and displacement of the concrete area that surrounds the pool" and could also damage the fibre glass pool.
16. As detailed above at [16], to engage s 10(2)(a) of the Trees Act, 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. In Yang v Scerri [2007] NSWLEC 592 (Yang), the near future is defined, as a rule of thumb, to be a period of one year.
17. Therefore, damage that may occur at a distant future time when the trees are "at maturity", is not included under the jurisdiction of the Trees Act. It is not damage in the near future. These claims are also not substantiated by evidence. Instead, they are mere speculation. There is no current damage to the fence or to the concrete pool surrounds to support an inference that near future damage is likely.
18. The applicant claimed that the filter housing, installed at the common boundary, had been deformed by roots. He thus cut the roots and encased the area in concrete. The applicant again provided no evidence to support this claim, but regardless, the concrete encasement would likely prevent future damage, and almost certainly, near future damage. Further, given that a mature Orange tree was growing in a neighbouring property close to the fence, and overhanging the applicant's land, the origin of the now severed roots had not been determined. As the Lilly Pilly's were growing within a sturdy wooden planter box that was likely to restrict and confine their root spread, and they are much more immature than the Orange tree, objectively it is more likely for the roots to have originated from the Orange tree.
19. The applicant provided an arborist's report, dated 10 March 2022, from Vertical Tree Management and Consultancy, but, as noted by the respondent, the report did not provide any evidence of damage having occurred as a result of the trees, nor anything, other than speculation, to substantiate that damage is likely in the near future.
20. Consequently, I am not satisfied that damage, noted above at [19], is likely to occur in the near future, thus this element of the applicant's claim is also refused. As none of the applicant's claims under Pt 2 have engaged s 10(2) of the Trees Act, I have no powers to make orders arising from the application, and there is no requirement for me to consider additional discretionary matters in s 12 of the Trees Act.

Jurisdictional requirements - Part 2A

1. The Court's jurisdiction under Pt 2A of the Trees Act is limited. The Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] - [22].

Do the trees form a hedge?

1. The first test is s 14A(1) of the Trees Act, that is, are the trees a hedge for the purpose of the Act?
2. 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).
3. The three trees were planted in 2017, relatively close together in a linear configuration, with the appearance of a hedge. They ranged from about 5 - 6.5 m in height.
4. As a consequence, I was satisfied that the trees were planted so as to form a hedge, and thus s 14A(1) of the Trees Act is engaged.
5. Section 14B of the Trees Act states that an owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: 1. sunlight to a window of a dwelling situated on the land, or 2. any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land.
6. The applicant owns his property and claims that the hedge severely obstructs sunlight to at least one window of his dwelling. This satisfies s 14B of the Trees Act.
7. Section 14B of the Trees Act does not prescribe on what part of the respondent's land the trees must be located, merely that they are "situated on adjoining land". Contrary to the respondent's claim, the European Olive is thus included in the hedge for the purposes of the Trees Act.
8. The applicant has also satisfied s 14C of the Trees Act, requiring notice of the application for order to be given to owners of affected land. Mr Djordjevic satisfied this requirement and also supplied evidence confirming he provided the application documents to Liverpool Council.
9. Section 14D of the Trees Act details the Court's jurisdiction to make a broad range of orders.
10. Section 14E(1)(a) of the Trees Act requires that the applicant makes a reasonable effort to reach agreement with the owners of the land on which the trees are situated. This is the same requirement already met at s 10(1)(a) of Pt 2 of the Trees Act.

Is the obstruction of sunlight severe?

1. Next, the jurisdiction requires assessment of the severity of the obstruction of sunlight to a window of the applicant's dwelling, as a consequence of any or all of the trees in the hedges.
2. Section 14E(2)(a)(i) states: (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) ……...
3. The applicant nominated three windows (W1) - (W3), which face east from a secondary living area west of the east-west oriented swimming pool. He also nominated four windows (W4) - (W7), about 5 m closer to the common boundary on the eastern side of an enclosed al fresco area located north of the pool. A lawn about 8 m wide is located between W4 - W7 and the common boundary.

Obstruction of sunlight

1. As the windows face east with wide roof eaves above them, no direct sunlight can impact the windows after about 11:30am. The applicant acknowledged that in winter, when the sun's path is in the northern sky, ample sunlight impacts W4 - W7 during mornings. Obstruction of sunlight to W1 - W3 during winter would not result from the trees but from the roof and walls of the applicant's al fresco area, which protrude east of W1 - W3 by about 5 m.
2. The applicant claimed that during summer, however, W1 - W3 received direct sunlight only from 10:30 - 11:30 am, compared to sunrise - 11:30 am when the trees had been absent. Considering that W1 - W3 were about 13 m from the trees, with the length of the swimming pool and pool surrounds at either end in between, I was not satisfied that sunlight was only available to these windows between 10:30 - 11:30 am.
3. The sun rises before 6am in summer, and, given the considerable distance between the trees and W1 - W3, sun is likely to shine light on these windows by perhaps 7am, with at least 50% sunlight exposure by 8:00am. W1 - W3 would continue to be exposed to sunlight until at least 11:30 am, and the subsequent sunlight obstruction later than this would result from the applicant's house roof and eaves.
4. The respondent provided a close-up aerial photograph of the applicant's dwelling and rear yard, stamped 6:30am, 14/12/2022. The shadow angles and quality of light in the photograph are consistent with my expectations of this time and date, so I have no reason to doubt its legitimacy. Based on this photograph, at 6:30am, W3 received about 50% sunlight, and W2 at least 25%, which exceeded my expectations. Shadows on these windows, and more so on W1, were clearly caused by light obstruction by the applicant's south side neighbour's roof, rather than the trees.
5. The shadow pattern in the aerial photograph suggested that the applicant's side boundaries and house were oriented east north-east at the rear to west south-west at the front, rather than east-west as shown on the application diagram.
6. Sunlight to W4 - W7 and to much of the front of the al fresco roof above was obstructed by the trees at 6:30am, but by 8:30am, at the latest, they would likely receive full sun on W4 - W7 and full sun exposure would likely continue until these windows were increasingly obstructed by the applicant's roof and eaves and fully obstructed by about 11:30 am.
7. The usual criteria applied by local Councils when considering light obstruction and overshadowing in their assessment of a development application (DA) is at least 3 hours of sunlight to at least 50% of a window of a living area between 9am - 3pm on 21 June, the winter solstice. Sunlight access greater than this threshold is considered to be adequate, and thus cannot reasonably be considered a severe obstruction.
8. In this case, notwithstanding that the applicant's priority is sunlight to windows during summer, one may apply a pro-rata basis as the house orientation prevents direct sunlight reaching all nominated windows after 11:30am, as the applicant acknowledged. Consequently, reasonable sunlight exposure may be deemed to be at least 1.5 hrs to 50% of each window between 8:30am and 11:30am.
9. Based on my observations, and the respondent's aerial photographs and submissions, I am satisfied that 50% of each nominated window would receive far more than 1.5 hrs sunlight between 8:30am and 11:30am in summer, and that obstruction of sunlight during this period would result from buildings, not from the trees.
10. The applicant claimed that he was not getting sufficient sunlight to his pool because of the trees, but s 14E(2)(a)(i) of the Trees Act only considers obstruction of sunlight to windows of a dwelling, not to pools, lawns or gardens.
11. The applicant also noted future obstruction of sunlight in his application, but this is not relevant. While s 14B of the Trees Act enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of any view from a dwelling, the use of the word "are" in s14E(2)(a)(i), requires the trees the subject of the application to be severely obstructing sunlight to a window of a dwelling at the time of the hearing, notwithstanding that sunlight obstruction at the winter solstice may be considered. See Tooth v McCombie [2011] NSWLEC 1004 at [14]-[15].
12. The applicant provided no substantiated evidence, such as professionally prepared shadow diagrams, to support his findings, and based on the relative locations of the windows and the hedge, as well as the respondent's aerial photograph, the claimed sunlight obstruction estimates appear both inaccurate and exaggerated.
13. Consequently, I determined that obstruction of sunlight to the windows of the dwelling is not severe and therefore, s 14E(2)(a)(i) of the Trees Act is not satisfied. The Court thus has no power to make orders arising from the Pt 2A application under the Trees Act.
14. As s 14E(2)(a)(i) is not engaged, there is no requirement to consider the balancing of interests in s 14E(2)(b).

Conclusion

1. For the application under Pt 2 of the Trees Act, the tree dispute principle and maintenance expectation established in Barker accounts for all tree debris described by the applicant, observed on his land, and shown in his extensive portfolio of photographs.
2. The applicant provided no substantiated evidence to support his claims of consequential damage to his pool filter, pool vacuum, or drains.
3. The applicant's omission to maintain his own property by not pruning overhanging foliage also increased his maintenance requirements and clogging of surface drains was exacerbated by poorly designed metal grates. These elements are considered in s 12 (h)(i) of the Trees Act.
4. The applicant supplied no reliable evidence to support a finding that the trees may cause 'damage in the near future' to the common boundary fence, the concrete pool surrounds or the fibre glass pool. Damage in the near future, on the basis of Yang, is limited to about 12 months. Damage in the distant future does not engage the jurisdiction of the Trees Act.
5. Consequently, s 10(2) of the Trees Act has not been satisfied by the applicant's submissions and evidence, and thus the Pt 2 application is refused.
6. In the application under Pt 2A of the Trees Act, the applicant's dwelling orientation allows his nominated east facing windows to only receive morning sun. The applicant acknowledged that sunlight is readily available to his nominated windows in winter.
7. Reliable photographic evidence supplied by the respondent contradicts the applicant's claim that sunlight to his nominated windows is severely obstructed by the trees in summer, as it shows that the extent and duration of sunlight to these windows far exceeds the threshold usually applied in a local Council DA assessment of overshadowing, that the Court may use to guide assessment of severity of sunlight obstruction to a window.
8. The respondent's desire for privacy is reasonable and is the most common justification for the retention of hedges arising from applications under Pt 2A of the Trees Act, where orders are sought for removal.
9. Consequently, s 14E(2)(a)(i) of the Trees Act was not engaged as the applicant has failed to prove that sunlight to any of his nominated windows was severely obstructed by the trees.

Orders

1. The orders of the Court are: 1. The application is refused.

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: 03 May 2023