Elmer v Dutfield

Land and Environment Court (NSW)|2018-04-16

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

Part 2 claim

If I am satisfied that the trees have caused, are causing, or are likely in the near future to cause damage to the applicant's property, or are likely to injure anyone (s 10(2) of the Trees Act), I have the jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12.

Part 2A claim

If I am satisfied that the trees form a hedge and severely obstruct sunlight to windows of the applicant's dwelling (s14E(2)(a)(i)), I have the jurisdiction to make appropriate orders (s 14D) after considering a range of matters set out at s 14F.

The applicant's submissions

Mrs Elmer says she was required to build a retaining wall when she moved in, to retain the land to the east. She says the local council did not require the wall to be engineered. The wall is approximately one metre tall, of stone and mortar. The trees were planted some time after the wall was constructed, but before the Dutfields purchased their property about 30 years ago.
Mrs Elmer first noticed cracking around 1999. She says she was advised to get an engineer's report, but emphasises that there was no requirement for the wall to be engineered so such a report was not needed. An engineer's report (Exhibit 2) in 2000, addressed to Mr Cardy, then an owner of the driveway's eastern half, identified that the wall's thickness was perhaps inadequate for its purpose and drainage was lacking behind the wall.
Mrs Elmer filed various correspondence she had with Baulkham Hills Shire Council. Council expressed a view that other factors may have contributed to the damage, and suggested it was a matter between the neighbours that did not necessarily involve the council.
Mrs Elmer pointed out a similar wall that has less cracking on the western side of her property. No trees grow near that wall, so she says the damage to the eastern wall must be caused by the trees.
A couple of cypress trees and some branches have failed or been removed over the years. Mrs Elmer spoke of other trees causing damage to her property during storms and is fearful that these trees will do the same, especially during storms.
Debris falls from the trees onto Mrs Elmer's roof and into her gutters. She says she must get someone to clean out the gutters regularly or they overflow.
Mrs Elmer says the trees obstruct sunlight to her dwelling. She has to have the lights on in the house during daytime. They are tall and block morning light. Mr Taylor, an arborist engaged by Mrs Elmer, pointed out that the trees form a hedge. He used web-based apps to show the movement of the sun relative to Mrs Elmer's dwelling on one day of the year, and to measure light levels on her property.
Mrs Elmer referred to a Tree Management Permit from Baulkham Hills Shire Council dated 3 February 2010 (in Exhibit 1), in which Council's Tree Management Coordinator advised that the cypress trees "…can be reduced by 1/3 and any branches causing concern removed", as well as approving the removal and pruning of several other trees.

The respondents' submissions

The Dutfields say they get an arborist to inspect all their trees regularly and then carry out any recommended works. They have not been required to do much to the cypress trees over the years and see no need to remove them. They value the trees' contribution to their amenity and to the local environment. Their arborist advised them that removing a third from the tops of the trees would damage and possibly kill the trees.
The Dutfields say that debris and shading are issues experienced generally in the neighbourhood as a result of living with trees. They suggest that Mrs Elmer's pergola at the rear of her dwelling might contribute to a reduction of light in her dwelling.

The retaining wall

In the 2000 report of engineer Alfred Frasca (Exhibit 2), an engineer noted other possible causes for the condition of the retaining wall. Photos from that report (in particular photos number 6 and 7) show cracking similar to what was observed at the onsite hearing. It appears that the extent of cracking has not significantly increased, despite 18 years of tree growth since that report was written. Given this background, the onus is on the applicant to provide further evidence that the trees are a cause of damage, and that some action needs to be taken.
Despite being alerted to the presence of other possible causes for cracking to the wall, Mrs Elmer has provided no further or recent engineering evidence demonstrating causation. It is not sufficient that there merely be trees present in the vicinity of damage. The principle set out in Fang v Li & anor [2017] NSWLEC 1503 provides some guidance as to the investigations that might be undertaken to establish causation. Mrs Elmer's application includes no recent engineering evidence.
I cannot be satisfied on the evidence before me that the trees have caused damage, so this element of Mrs Elmer's application does not give the Court any jurisdiction to make orders for interfering with the trees or for repairing the wall.

Risk of damage or injury

Mr Taylor pointed out bark inclusions and some deadwood in several of the cypress trees. Stems are joined by narrow forks, many with included bark. This is a trait of the species that may sometimes lead to failure. However, relying on my own arboricultural expertise and experience, I observed nothing to suggest that the trees are likely to fail in the near future, a period generally taken to be 12 months for the purposes of the Trees Act, since Yang v Scerri [2007] NSWLEC 592. Therefore this element of the application does not enliven the Court's jurisdiction.

Debris

I accept that debris from the tree falls onto Mrs Elmer's roof and gutters, but have not been shown any damage caused by this. Leaves that are left sitting in gutters might damage them over time, but since a principle regarding this was set out in Barker v Kyriakides [2007] NSWLEC 292, the Court has consistently found that it is reasonable to expect that homeowners remove such debris as part of routine property maintenance. This is usually not a reason to interfere with a tree, and I see no reason to vary from this principle here.

Sunlight

The closest part of her dwelling to the trees is Mrs Elmer's garage. The garage and a laundry at the back of the dwelling are not considered living areas and generally will receive little attention from the Court under Part 2A of the Trees Act. Mrs Elmer's kitchen and dining windows face south, so do not receive direct sunlight regardless of the trees. Only the family room glass door facing east is obstructed for a short time during the morning by the trees. Trees further to the east, and Mrs Elmer's pergola, also contribute to the obstruction. Considering these factors, I find that the trees themselves do not cause a severe obstruction, the level required by the Trees Act before I can make any orders.

Orders

As a result of the foregoing consideration, none of the elements of Mrs Elmer's application enlivens the Court's jurisdiction, so the application is dismissed.

D Galwey Acting Commissioner of the Court

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: 23 April 2018

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