Doyle v Tu

Land and Environment Court (NSW)|2023-06-15|Before: Centre J

Judgment

COMMISSIONER: Ms Jennifer Doyle, the applicant, shares a common boundary with the respondents, Ms Viola Tu and Mr Davy Nai Hung Fok, between their properties in Dural. The level of the applicant's land is about 700mm lower than the respondents' land and the respective properties are accessed from different streets. The common boundary runs from east to west and the applicant's north side boundary is the respondents' rear boundary.
Ms Doyle occupied her property 35 years ago and she said the respondents planted a row of nine Cupressocyparis leylandii (Leyland Cypress) (the trees) about 23 years ago at the rear of their back yard. The applicant noted that the trees had initially grown to about 5 metres (m) tall, but were pruned to a height around 2.5 m about 10 years ago and have been maintained around that height up to the present.
The applicant requested that the respondents remove the trees and offered, with her son, to remove them from the respondents' land. The respondents have a low second hedge of Box trees on their side of the Cypress trees and the applicant preferred that only the Box hedge be retained, and a low fence topped with lattice be installed along the common boundary to allow increased winter sunlight penetration to the applicant's yard.
The respondents resisted removal or height reduction of the Leyland Cypress trees as they value the privacy the trees provide in the back of their dwelling and in their rear yard, and the trees' aesthetic contribution to their garden. In response to Ms Tu's claim that she could view the applicant in her kitchen in the absence of the trees, Ms Doyle proposed installing a blind, but the respondents were not satisfied with this solution. The parties conducted mediation through a Community Justice Centre (CJC) but no agreement was reached.
Consequently, Ms Doyle submitted an application, pursuant to s 7 of Pt 2, and s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act). The application under Pt 2 of the Trees Act relates to alleged past damage to the common boundary fence as a result of the trees, and future damage to an adjacent partially constructed retaining wall. Ms Doyle also noted that the sewer main which ran near the trees had been damaged, and claimed the trees were a likely cause. Under Pt 2A of the Trees Act, the applicant claimed that the respondents' trees form a hedge which severely obstructed sunlight to her dwelling and courtyard. Ms Doyle sought the following (summarised) orders: 1. The respondents, at their expense, shall remove all nine Leyland Cypress trees, including roots protruding into the applicant's land and partially erected retaining wall. The applicant will subsequently plant shrubs on her side, pending the new common boundary fence. 2. If order (1) is not granted, alternatively, the respondents, at their expense, shall prune and maintain the Leyland Cypress trees to a maximum height of 2 m and remove trees to reduce the length of the hedge by 1.5m at its western end and by 1m at its eastern end.

The onsite hearing

The hearing commenced with an inspection of the rear yard of the respondents' property where the trees grew near the rear boundary. The impact of the trees on the applicant's property was subsequently assessed and oral submissions were made in the applicant's yard. The application under Pt 2A of the Trees Act will be addressed initially.

Jurisdictional requirements - Part 2A

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?

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).
Wisdom v Payn [2011] NSWLEC 1012 (Wisdom), at [45], provides a description of a hedge for the purposes of the Trees Act, as follows: ".... We are satisfied that the words forming a hedge mean that there must be a degree of regularity and arrangement, in a linear fashion, of the trees being considered. Whilst such an arrangement may be more than one tree deep and does not need to be in a perfectly straight line, the impression that is given by the planted arrangement of the trees must be one that, in an ordinary English language understanding of the word, would be perceived to be a hedge."
The trees were planted about 23 years ago in a linear configuration, relatively close together. They now average about 2.3 m tall, but two trees at the eastern end equalled or exceeded 2.5 m in height.
Similar circumstances were considered at [66] of Wisdom: "As a consequence, the four of the trees, T 4 through to T 7 satisfy the jurisdictional test as to height. Although trees T 2, T 3 and T 8 do not satisfy the prerequisite height, we are none the less satisfied that, because two or more of the trees in this group have fulfilled the prerequisite, we should regard the totality of this group of trees as constituting a hedge satisfying the tests in s 14A even though three of the trees, at present, do not satisfy that test. To do otherwise, in our view, would apply this jurisdictional test in a fashion that would permit hedges to be planted in a fashion that would render the legislation entirely ineffectual."
This guideline from [66] of Wisdom has been consistently applied by the Court, where two or more of the trees with a height of at least 2.5 m fulfils the prerequisite for the hedge to engage s 14A(1)(b) of the Trees Act. As a consequence, I am satisfied that the trees form a hedge, such that s 14A(1) of the Trees Act is engaged.
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.
The applicant owns her property and claims that sunlight to windows of her dwelling is severely obstructed by the respondents' hedge. This satisfied s 14B of the Trees Act.
Ms Doyle also satisfied s 14C of the Trees Act, requiring notice of the application for orders to be given to owners of affected land, and to Hornsby Council (Council). Section 14D of the Trees Act details the Court's broad jurisdiction to make orders.
Section 14E(1)(a) of the Trees Act requires the applicant to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated.
Though Mr Fok and Ms Tu appeared disgruntled about the manner and perceived unreasonableness of Ms Doyle's demands to remove the Cypress trees, the applicant noted communicating tree removal requests to the respondents and the parties' engagement in mediation, albeit unsuccessful, through a CJC.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) Preston CJ provides extensive guidance on the 'reasonable effort' required to satisfy the Trees Act. At [195] of Robson, his Honour notes that: "The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process."
The requirement under s 14E(1)(a) of Pt 2A of the Act is the same as that under s 10(1)(a) of Pt 2 of the Act. His Honour provides a framework for consideration of this requirement at [191]-[194] of Robson. "Reasonable effort to reach agreement 191 The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that: "[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.": para 1.13, p 7. 192 The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33. 193 The Trees (Disputes Between Neighbours) Act 2006 did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement. The notification requirement under s 8 of the Trees (Disputes Between Neighbours) Act 2006 is of lodging of the application and the terms of any order sought. Of course, such notification may prompt discussions between the parties, but it serves a different function to the Law Reform Commission's recommendation of giving notice before taking court action. 194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application."
As a consequence, the requirement to make "a reasonable effort to reach agreement" does not prescribe that a person must negotiate in a particular manner, nor does it preclude the applicant remaining intractable in her claims. Therefore, I am satisfied that s 14E(1)(a) of the Trees Act is engaged.
The next major requirement of the jurisdiction is to assess the severity of the obstruction of sunlight to a window or windows of the applicants' dwelling as a consequence of any or all of the trees in the hedge.
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 …
The applicant's residence is downslope from the respondents' land while the hedge is close to the common boundary. External walls of the applicant's dwelling form a 'U' shape which enclosed a courtyard adjacent to the dwelling on three sides. A north facing wall which contained the applicant's kitchen was recessed back from the common boundary, while perpendicular walls at each end extended northward towards the boundary. Due to their orientation, windows in the east facing side wall may receive sunlight only in the morning while the west facing side wall containing a living area can receive sunlight only in the afternoon.
As the hearing was conducted on 15 June 2023, less than one week before the winter solstice, accurate assessment of peak sunlight obstruction by the hedge was possible without recourse to shadow diagrams.
While the northern orientation of the applicant's 'kitchen wall' would normally allow for ample sunlight exposure, the protruding east side wall obstructed sunlight reaching north facing kitchen windows until about mid-morning. After early to mid-afternoon, the applicant's protruding west side wall, and trees at the western end of both parties' properties, would increasingly obstruct sunlight to the applicant's 'kitchen wall'.
Shadows cast by the Cypress hedge extended across part of the applicant's yard but did not reach windows of her dwelling. Though Ms Doyle also sought relief from overshadowing of the garden, which she claimed was cold and dark in winter, the limited jurisdiction of Pt 2A of the Trees Act extends only to obstruction of sunlight to dwelling windows, not to gardens, driveways, or pools. Therefore, as s 14E(2)(a) of the Trees Act was not satisfied, the Court has no powers to make orders, so the application under Pt 2A of the Trees Act is refused.

Jurisdictional requirements - Part 2

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.
Section 8 of the Act is engaged as it is the same requirement to give notice of order to the respondents and Council in satisfaction of s 8(1)(a) and s 8(1)(b) respectively, that Ms Doyle satisfied at s 14C of Pt 2A of the Trees Act.
Section 9(1) details the Court's jurisdiction to make orders "as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned."
The Court is obliged to consider a number of matters pursuant to s 10 of the Trees Act.
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. It is the same requirement already met at s 14E(1)(a) of Pt 2A of the Trees Act.

Damage caused by the trees

The next major test that is posed, by s 10(2) of the Trees Act, is that the Court must be satisfied that the tree/s 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.
A timber paling boundary fence had previously separated the parties' properties but after many years in situ, the fence was no longer fit for purpose. Ms Doyle and her son removed the dilapidated fence and pruned all branches of the Cypress trees growing towards the applicant's property back to their trunks, about 350mm beyond the common boundary within the respondents' property. This pruning resulted in full exposure of the trees' trunks, which averaged about 210 mm diameter at their bases, and woody lateral branches.
The applicant complained that the unattractive appearance of the exposed trunks and dead internal branches resulted in the trees being "not up to standard for this lovely area", regardless that the installation of a steel panel boundary fence was pending. There is, however, no remedy for perceived tree unsightliness under the Trees Act. The fact that the exposure of trunks and internal deadwood resulted from the applicant's son undertaking unauthorised, poor quality, excessive pruning, apparently in trespass across the common boundary, also casts the reasonableness of Ms Doyle's complaint into question.
Ms Doyle claimed that the Cypress trees and their roots caused the previous hardwood fence to collapse because the trees were planted too close to the fence and said that the timber of this boundary fence was more rickety than other timber boundary fences that had recently been replaced, as evidence of the trees' role in causing fence damage. Ms Tu said all the fences were of similar appearance and she attributed their deterioration to natural wear and tear over time, because the fences were about 35 years old.
Other than attributing relatively more dilapidation of the common boundary fence to the Cypress trees, and claiming they were too close to the boundary, Ms Doyle submitted no photographs or other evidence indicating a causal link between the Cypress trees and fence damage or deterioration.
In the applicant's affidavit of 18 May 2023 (Exhibit C), Ms Doyle claimed that the hedge's obstruction of sunlight, was exacerbated "because my block is sunken", and makes the yard "shady, damp and soggy". Rainwater may shed across the respondents' lawn towards the applicants' land, but much of it would be absorbed by both the Box and Cypress hedges. In the absence of the Cypress trees, the applicant's soil would likely become more saturated from water on the surface and within the soil moving downslope from the respondents' property, and from respondents' west side neighbour higher up the slope.
Whilst I would therefore deem absorption of stormwater to be a benefit of the Cypress trees, Ms Doyle considered it detrimental for Cypress tree roots to extend into her garden bed and extract moisture. At [166] of Robson, his Honour said; "…damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes Between Neighbours) Act 2006".
Consequently, I am not satisfied that the Cypress trees caused damage to the prior common boundary fence, thus s 10(2)(a) of the Trees Act is not engaged.
A dry masonry block retaining wall about 500 mm from the common boundary had been partially constructed by the applicant's son to support a garden bed, where a mortared concrete block retaining wall had previously been located. The applicant claimed that Cypress roots exposed by excavation were likely to cause damage to the new retaining wall.
Upon investigation, roots exposed from a few of the Cypress trees had initially grown laterally, fairly close to the surface and then penetrated down into the soil, most likely upon being deflected by the previous wall. The roots in question were less than 50 mm in diameter and were woody, rigid, relatively inactive, and established in their current position. Though Ms Doyle's application included photographs of Leyland Cypress more than 20 m tall and said each of the respondents' trees may grow to 6 m tall and 4 m wide, because the Cypress trees had been regularly clipped to shape and pruned at a height of about 2.5 m for the last 10 of their 23 years, they were like Bonsai specimens. Regular removal of the trees' foliage, which is required for photosynthesis, had resulted in slow and stunted growth, as attested to by the extremely small trunk diameters of the trees. After 23 years, one would expect Leyland Cypress trees growing on high fertility clay soils that characterise this area, to have trunks with a basal diameter around 500 - 700 mm, rather than about 210 mm.
The jurisdiction of Pt 2 of the Trees Act covers damage likely to be caused in the near future and in Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. As the Cypress trees were mature and growing at a slow rate with low vigour and the roots exposed by Ms Doyle appeared to have deflected down behind the wall, I am not satisfied the Cypress roots are likely to damage the retaining wall in the near future, or even the medium term, provided that a gap is left between the new wall and the slowly thickening roots. Even if Cypress roots did impact the wall in future, the unitary and unmortared construction of the block wall allows for easy access for root pruning if required. Therefore, s 10(2)(a) of the Trees Act is not engaged by alleged root damage in the near future.
Though Ms Doyle did not want Cypress roots growing within her soil, as I explained at the hearing, it is necessary for tree stability and universal in vegetated urban areas, for tree roots to encroach beyond boundaries and occupy soil in neighbouring properties. In a similar pattern to the Cypress trees, roots from the applicant's large avocado and citrus trees located upslope and west of the Cypress, would almost certainly be extensively occupying soil on the respondents' land and the land of the applicant's west side neighbour, immediately adjacent to the trees.
Ms Doyle wanted all Cypress roots and foliage to be restricted to the respondents' land and not encroach beyond the boundary, but this is not a requirement under the Trees Act, unless the tree/s are causing damage. Discussing the issue of nuisance, at [56] of Robson, his Honour states that "mere encroachment into the neighbour's land is insufficient to complete a cause of action...".
The applicant's third damage claim comprised damage to a Sydney Water sewer main by tree roots. Ms Doyle submitted that Sydney Water advised to "try not to plant trees within 6 metres of wastewater pipes" and that 'Pine' (based on the applicant's initial misidentification of the Cypress trees) was on the Sydney Water list of "Trees you should avoid planting".
The sewer main ran parallel to the common boundary close to the respondents' Cypress trees. Ms Doyle noted having observed raw sewerage overflowing from a maintenance pit onto Council's roadside grass verge about 30 m downslope from the Cypress trees, on about four occasions over the last six years. The applicant reported a Sydney Water representative's advice that the most recent tree root blockage of the sewer main occurred in 2022, but Sydney Water could not identify from which property the tree roots originated. Nonetheless, Ms Doyle alleged that the Cypress trees were causing the pipe blockages.
The jurisdiction of The Trees Act does not extend to the sewer main as it is the property of Sydney Water, rather than either of the parties, or their neighbours. The applicant must own the property alleged to be damaged by the tree/s at the time the damage occurs. This is discussed in Liang & anor v Marsh & anor [2011] NSWLEC 1026 at [33] to [35], and Bhuta v Cefai [2023] NSWLEC 1330, at [27]. Therefore, s 10(2)(a) of the Trees Act is not engaged by tree roots in the sewer main.
In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said: "… something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage …".
Even if the Trees Act applied to the Sydney Water sewer main, the applicant's claim for pipe damage by the Cypress was unsubstantiated and based on speculation, as were the fence and retaining wall damage claims. While Cypress trees are also on the Sydney Water "Avoid planting" list, so are a wide range of large and medium sized trees. As noted by the respondents, Ms Doyle's large Avocado tree, which is close to the sewer main, is also on the "Avoid planting" list. A broad, 20 m tall Liquidambar tree was growing in a neighbouring property close to the sewer main about 10 m from the kerbside maintenance pit. Considering the tree's size and the characteristics of roots of this genus, this is the tree most likely to be causing the pipe blockages.
Finally, Ms Doyle claimed that the Cypress trees were a fire risk and noted the areas inclusion in a 10:50 Asset Protection Zone. I am not satisfied that these small trees are particularly dangerous, and agree with Ms Tu's claim, based on her discussions with Hornsby Rural Fire Service, that 10:50 Asset Protection Zones are "more applicable to properties backing onto bushland", rather than the parties' properties, which are relatively distant from bushland. Freeman v Dillon [2012] NSWLEC 1057, at [64], cited by Ms Tu at page 10 of Exhibit 2, applies in this situation; "…As no injury or damage has occurred as a result of a bushfire affected tree, this element of the application is dismissed".
In the absence of reliable supporting evidence, I am not satisfied that any of the applicant's allegations of damage have been proven beyond a theoretical possibility, as I have not been persuaded on the balance of probability Therefore, Ms Doyle's application has failed to satisfy s 10(2)(a) of Pt 2 of the Trees Act.

Conclusions

While the Cypress trees just met the 2.5 m height requirement for a hedge under s 14(A)(1) of Pt 2A of the Trees Act, there was negligible sunlight obstruction of the applicants' dwelling windows caused by the hedge, thus the application under Pt 2A was refused.
Under Pt 2 of the Trees Act, s 10(2) was not satisfied for any of the applicant's damage claims, hence the Court has no powers to make orders, and therefore the Pt 2 application is also refused.
Had s 10(2) of the Trees Act been engaged however, the required consideration of discretionary matters in s 12 of the Trees Act would have detailed the importance of the Cypress trees in ensuring the respondents' privacy, the trees' contribution to the landscape design and amenity of the respondents' garden, along with absorption of stormwater, soil stabilisation and reduction of soil erosion.
The respondents' hedge is modest and conservative and only tall enough to provide highly valued privacy for the respondents. The trees are not too close to the boundary for construction of the fence. In any case, as a result of the trees' suppressed growth rate and the severity of the Cypress pruning by Ms Doyle's son, future foliage growth on the applicant's side of the trees is unlikely.
The applicant's sunlight obstruction primarily results from her land's excavated mid slope location and southerly aspect, and a dwelling design featuring a recessed, semi-enclosed courtyard which fails to optimise potential northern winter sunlight. It is not a reasonable expectation that the respondents should compensate for such constraints.
Based on a claim that Ms Doyle would not proceed with the installation of a new common boundary fence unless the respondents removed the Leyland Cypress trees, the respondents proposed the Court make fencing orders pursuant to s 13A of the Dividing Fences Act 1991 (Dividing Fences Act). The Court, however, does not have powers to make orders under the Dividing Fences Act unless s 10(2)(a) of the Trees Act is engaged by the respondents' tree or trees causing damage to the common boundary fence. As s 10(2)(a) of the Trees Act has not been engaged by any of the applicant's damage claims, the Court has no powers to make orders under the Dividing Fences Act and separate action may thus be required.

Orders

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: 15 September 2023

At a glance

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Judgment (9 paragraphs)

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Cases Cited (9)