Drew v Tansey

Land and Environment Court (NSW)|2019-11-28

This decision was given as an extemporaneous decision. It was given orally and has been revised and edited prior to publication.

COMMISSIONER: Moss Vale, in the Southern Highlands, is characterised by large residential properties, and, along with nearby towns, is renowned for beautiful gardens, boasting mature evergreen and deciduous trees.
As is common in many highland regions, Moss Vale is prone to strong winds. To mitigate the impact, on both urban and rural properties, many landowners grow rows of large trees as windbreaks.
The applicants, Mr and Mrs Drew, have occupied their dwelling since about 2001, while the respondent, Mr Tansey, moved here in 2014. They share a long side boundary, which runs roughly north-northeast at the front to south-southwest at the rear.
A row of nine mature Pinus radiata (Radiata Pine) (the trees), about 25 metres in height, is located in the respondents property, a few metres from, and roughly parallel to this boundary, bordering the applicants'. These trees are part of a longer row of conifers in the Tansey's property.
Mr and Mrs Drew lodged an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), in order to remedy damage that the trees have caused, are causing, and are likely to cause in the near future. They further claim that the trees represent a serious risk of injury to their family. They have also taken action under s 14 B of Part 2A of the Act, on the basis that the trees were planted as a hedge, and that they are causing a severe obstruction of sunlight to windows.

The respondents' case

Mr Tansey resists the proposed order for lopping of the trees to a height of five metres, but have proposed the removal of major deadwood and reduction of overhanging branches on both sides of the trees, as specified by their arborist.

The on-site hearing

The hearing commenced in the respondents' side yard with an inspection of the nine boundary trees. The trees display pruning wounds where they were lopped at about 10 to 15 years of age, at about nine metres above ground level. Though this is a discredited arboricultural pruning practice, which contravenes the Australian Pruning Standard (AS4373:2007), and often initially results in poorly attached regrowth, these trees are now about 40 years old, around mid-maturity. Their response growth, which followed this lopping, is tall, and straight, and the trees appear to be very healthy.
When viewed from ground level, the branches and trunks have re-established a canopy fairly typical of the species, and branches appear to be well attached at junctions around the old lopping wounds. The average useful life expectancy of Radiata Pine, when grown in this region and environment, would be about 80 years.
The Court moved to the applicants' yard to assess the extent of damage, and risk of injury, attributable to the trees, and then inside their house for submissions. In attendance were Mr and Mrs Drew, who were self-represented, and Ms Osborne, solicitor, of Meredith Hatton and Associates, representing Mr Tansey. Mrs Tansey appeared as an interested party and Mr Ford, arborist for the respondents, was also present, but he had no legal standing to participate in the case as he had not satisfied the requirements of the Uniform Civil Procedures Rules 2005.
Mr and Mrs Drew noted the pine needles that had fallen and blown onto their yard, into the front flower beds, and onto the house roof. They described ongoing extensive maintenance required with their garden, and pool, due to the pine needles, and the creaking noises that the trees create during high winds. They also noted the potential fire hazard. They provided no other evidence of damage.
Ms Osborne sought leave to table a Respondent's Submission. I was initially disinclined to accept it, being not previously aware of it, and, because the respondents, who had received it late the previous evening, claimed they had not had sufficient opportunity to read and/or digest its contents.
It became clear, however, in discussing the Respondent's Submission in general, that Mr and Mrs Drew failed to appreciate the onus on them to prosecute their case in terms of the requirements of the Act, for their legal action to succeed. Therefore, permission for tabling of the Respondent's Submission was granted, as it was likely to assist all parties, and the Court. The Part 2 application was assessed first.

Jurisdictional requirements - Part 2

With respect to s 7, 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.
Mr and Mrs Drew have satisfied the requirement under s 8 of the Act: to serve notice to the respondent more than 21 days prior to the proceedings.
They have also satisfied s 10(1)(a) of the Act; to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, though the respondent disputes this.
Rather than initially raising their concerns about the trees directly with their neighbours, either verbally or by correspondence, Mr and Mrs Drew instead organised for a Community Justice Centre to send a letter to Mr and Mrs Tansey seeking mediation.
Mr and Mrs Tansey rejected the applicants' mediation request, given that they were unaware of any tree issues in contention, and the Community Justice Network letter supplied no detail.
Following correspondence between the parties, which to some extent clarified the applicants' fears and concerns, Mr Tansey sought specialist advice from an arborist, on the basis that neither party was qualified to provide a sound opinion as to the tree's structural integrity, and safety. The fact that Mr and Mrs Drew proceeded with their application prior to assessment of this advice further aggrieved Mr and Mrs Tansey.
Notwithstanding this, while a concerted effort to negotiate an amicable and mutually acceptable outcome is desirable before an application under this Act is made to the Court, the Court accepts that opportunities exist until the end of the hearing for negotiations between the parties to occur, and thus s 10(1)(a) is deemed to be satisfied.
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.
Other than the Pine needles, and some small sticks, apparent on the ground, there was no evidence provided of damage in the past, nor current damage relating to the trees. Based on this, and with no advice of planned site changes, there is also no evidence to support the likelihood of damage in the near future.
In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb in relation to damage, the 'near future' is deemed to be a period of 12 months from the date of the determination.

Dropping debris

While it is clear that Mr and Mrs Drew suffer an ongoing maintenance impost as a result of tree debris dropping and blowing onto their property, this does not constitute damage under the Act.
The issue of maintenance is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at [20], establishes the tree dispute principle: "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 will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree."
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) at [171], Preston CJ states that "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 Act, and that "leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours 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."
Overall, the evidence provided of damage in the past, present or near future, is insufficient to engage s 10(2)(a)(i) of the Act. This claim is dismissed.

Risk of Injury

Using the guidance decision published in Yang v Scerri [2007] NSWLEC 592 with respect to injury, the Court considers the risk posed by a tree (or trees) based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.
There are no obvious characteristics of these trees that cause concern with respect to risk of injury. There is no apparent sign of structural weakness in the trunks, nor indication of faults at branch junctions. Based on their external appearance, the trees appear to be sound and strong.
There is no history of failures of overhanging branches, notwithstanding that many extend over the applicants' by more than five metres.
In Robson at [56], however, in analysing nuisance, his Honour notes that "mere encroachment into the neighbours land is insufficient to complete a cause of action for nuisance".
In an email to Mrs Tansey dated 4 August 2019, Mr and Mrs Drew note that the trees are unsafe, and constantly creak and groan during high winds, leaving them fearful of trunk and branch breakage onto their house.
While not ignoring these fears, these noises are a normal characteristic as trees stretch and flex in response to winds. The deadwood removal, proposed by the respondent as part of pruning works, would likely reduce the creaking, as many dead branches appear close to rubbing junctions.
The proposed tree pruning works also provide the opportunity for an aerial inspection by qualified arborists, to assess structural integrity across all trees. At the least, it would seem prudent to inspect the trunk/branch junctions of some high, ascending branches which are leaning slightly towards the applicants' property, and reduce or remove any deemed suspect or faulty. Under normal weather conditions, with no reported history of branch or trunk breakage, this may be viewed as an over-reaction, but given the unpredictable winds that this region sustains, it is appropriate to be cautious.
Notwithstanding the reported creaking, there is an absence of evidence to support probable likelihood of injury. There is no history of injury, nor near misses. No formal risk assessment has been provided as supporting evidence.
Accordingly, I am not satisfied that the trees represent a risk of injury that would be considered anything greater than low, and this is considered an acceptable risk. The claim with respect to risk of injury is thus also dismissed.
Therefore, with s 10 not satisfied, I have no jurisdiction under the Act to make any orders with respect to these trees under s 7 of Part 2. As this Part of the application is set aside, there is also no requirement to consider the discretionary matters in s 12.

Jurisdictional requirements - Part 2A

In Part 2A matters, the Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 (Granthum) at [17]-[22].
The first test is s 14A(1), that is, are the trees a hedge for the purposes 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).
These trees were planted at regular intervals in a linear configuration. They are growing higher than 2.5 metres tall, and it is reasonable to deem them as planted 'so as to form a hedge'. Therefore, the trees satisfy the requirements of s 14A(1) of the Act.
Based on the prior Part 2 assessment, s 14E(1)(a) is deemed to be satisfied. It states: The Court must not make an order under this part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the trees are situated.

Obstruction of sunlight to windows

The next step is to assess the severity of the obstruction of one or more windows of the applicants' dwelling as a consequence of the trees.
Section 14E(2)(a)(ii) states: (1) 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.
As the engagement of this jurisdiction does not necessarily require the obstruction of sunlight to a window to be 'severe' at the time of the hearing, guidance for assessment of severity is found in planning law.
In order to determine whether there is a severe obstruction of sunlight to a window of a dwelling, the Court has considered the usual minimum development standards for sunlight (solar amenity) required by most councils for new developments. This is typically at least 3 hours of sunlight to living room windows for at least 50% of their area on 22 June between 9.00 am and 3.00 pm.
The windows were labelled W1-W7. All faced west-northwest, towards the row of trees, except W1 and W7. The applicants claim that the hedge severely obstructs sunlight to these windows. None of these windows were in living rooms.
The room containing W1 and W2 is a study, and this was where the applicants' were most troubled by the lack of light. They noted that they needed to turn a light on at all times in order to effectively use the room, but this was, however, not primarily caused by the trees. W1 was, in fact, south facing, and thus, due to the natural arcs created by the earth's seasonal rotation relative to the position of the sun, at best one could expect soft indirect light, rather than sunlight, to enter from this aspect. The diurnal duration and quality of this light would naturally be reduced during winter. W2 is quite small.
Rooms with W2-W6 facing the west-northwest, towards the row of trees, included the study, a laundry, bathroom and bedroom, with glazed and or relatively small windows. Due to the aspect, these windows are not exposed to any sunlight until just before midday, thus the morning will not be considered.
W7 appeared to be in the applicants' bedroom, but the window was covered with a blind, which prevented the assessment of sunlight obstruction.
Though the Court recommends, rather than mandates their production, shadow diagrams are very helpful in these matters regarding light obstruction, as they provide a picture of the shadows on site on 22 June, when the sunlight obstruction is greatest.
No shadow diagrams were supplied by Mr and Mrs Drew, notwithstanding that the onus is on the applicant to prove that the obstruction of sunlight to a window is severe - Clancy v Bell [2011] NSWLEC 1017.
In the absence of shadow diagrams or other supporting evidence, I conclude that it is unlikely that sunlight would be obstructed for at least 1.5 hours to at least 50% of a designated window's area on 22 June between midday and 3.00 pm, as the hedge is about 12 metres from the house, and the upper canopy has a relatively open habit. The small window size and overhanging roof eaves also obstruct sunlight from these service room windows.
Overall, I am not satisfied beyond reasonable doubt that the hedge is severely obstructing sunlight to one or more windows (W1-W7).
Therefore, s 14E(2)(a)(ii) is not satisfied, and no Court orders can be made for any interference with the hedge.
As s 14E(2)(a)(ii) is not met for the hedge, there is no need to consider the balancing of interests required by s 14E(2)(b).

Conclusion

Mr and Mrs Drew provided insufficient evidence to support either of their claims. Their claim of damage under Part 2, primarily based on the dropping of refuse and cost of associated maintenance, has no remedy available under the Act. As to injury, there have been no reported incidents to support a risk rating above low, and this is an acceptable risk.
Under Part 2A of the Act, Mr and Mrs Drew did not provide shadow diagrams or other evidence to support their claim of sunlight obstruction. No living area was impacted by the obstruction, and overhanging eaves and small window size also impacted sunlight access. Overall, I am not satisfied that the sunlight obstruction due to the hedge is severe.
It is regrettable that Mr and Mrs Drew were not more familiar with the Act and its requirements, so as to appreciate that their application was highly unlikely to succeed. This adds insult to injury for Mr and Mrs Tansey, after the impersonal manner in which they were made aware of the proceedings.
Though Commissioners of the Court are not given delegation by the Chief Judge, pursuant to s 36 of the Land and Environment Court Act 1979, to deal with applications for costs for the provision of reports and the like falling within the definition of costs, if Mr Tansey wishes to make a separate application to the Court based on the outcome of these proceedings for any costs order, it must be by Notice of Motion which is heard and determined by the Registrar, or by a Judge of the Court. Procedural guidance for such Notice of Motion is readily available on the Court's website.

Orders

As a consequence of the foregoing, the Court orders that the application 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: 28 February 2020

At a glance

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Judgment (12 paragraphs)

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Cases Cited (6)