Ermis v Boutros

Land and Environment Court (NSW)|2024-05-28

Background to the application

In the garden of their Burwood property, Simon and Cecilia Boutros have several trees that are at the centre of a dispute with their neighbours, Memduh and Ayzin Ermis. Unable to resolve the dispute themselves, the Ermises applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for some trees to be removed and others to be pruned. The Ermises seek orders under Pt 2 of the Trees Act to prevent trees causing damage or injury; and they seek orders under Pt 2A of the Trees Act to remedy and prevent the severe obstruction of sunlight and views caused by some of the trees. The Boutroses propose to prune only some of the trees to prevent damage, and refute that their trees severely obstruct views or sunlight for the Ermises.
The final hearing took place onsite. All parties were self-represented. The Court observed the trees and relevant elements at both properties.

The trees

The application relates to 14 trees, three of which are in the front setback of the Boutros property: T1 - Archontophoenix cunninghamiana (Bangalow palm) T2 - Cordyline australis (New Zealand cabbage tree) T3 - Archontophoenix cunninghamiana (Bangalow palm)
The remaining 11 trees are in the rear setback of the Boutros property: T4 - Beaucarnea recurvata (ponytail palm) T5-T13 - Cupressus sempervirens 'Stricta' (fastigiate Mediterranean cypress) T14 - Cordyline australis (New Zealand cabbage tree)

Reasonable effort

Under both Pts 2 and 2A of the Trees Act (at s 10(1)(a) and s 14E(1)(a) respectively), the Court cannot make orders without first being satisfied that the applicants have made a reasonable effort to reach agreement with the respondents. In their application to the Court (in Exhibit B), the Ermises wrote: "We talked to the respondents on several occasions explaining our concerns by examples. We also wrote them attached letter dated 10/09/2021. However, Mr Boutros told us that they will not action unless they receive a court order which leaves us no option but to apply to the Court which is not preferred by us."
In the letter of 10/09/2021 (Exhibit D), Mr Ermis explained their concerns regarding the trees.
The Ermises and the Boutroses have different views on what should be done with the trees. It was obvious during the hearing that they would not agree on an outcome, so there would be little point in further effort by the Ermises. I am satisfied that the applicants' efforts were reasonable.

The applicants' position

Under their Pt 2 application, the Ermises submit that trees will cause damage and injury. Some of their concerns are set out in their application Form H (Exhibit B).
They say that fronds of T1 and T3 (Bangalow palms) will fall onto their property and are likely to damage their roof, injure somebody on their front path, or catch fire. They want the palms pruned regularly to remove dead and dying fronds.
They say that T2 (New Zealand cabbage tree) is planted so close to the fence that it will damage the fence as it grows. They want the tree pruned to maintain it at a small size.
They say that cypress trees T5 and T6 are damaging the fence. They want both these trees removed.
They say that T14 (New Zealand cabbage tree) is likely to damage the fence as it grows and want it maintained at a small size.
During the onsite hearing, the Ermises made further submissions regarding other trees in the application damaging the fence. They also submitted that the allelopathic effects of the cypress trees prevents them growing plants in their own garden.

The respondents' position

The Boutroses refute that palm fronds are likely to cause damage or injury. Most fronds fall within their own property.
They refute that most trees are likely to damage the boundary fence.
The Boutroses lodged a tree permit application with Burwood Council on 30 April 2024, applying to remove all 14 trees on the basis that their "[n]eighbour does not like trees and has asked to remove". On 6 May 2024, Burwood Council issued a permit granting approval to "[p]rune branches on the row of nine (9) pencil pines (Cupressus sempervirens 'Stricta') located on the northern boundary of the back yard, for branches that are in contact with the dividing fence." Burwood Council refused the application for removal of the 14 trees. Mr Joe Lilley, Burwood Council's Tree Management Officer, wrote in the tree permit that the neighbours' dislike of the trees "…is not a matter for Council to consider when assessing a Tree Permit Application."
The Boutroses obtained a report from Karim Soweid of AAA Affordable Tree Loppers and Tree Surgeons. It was of little assistance to the Court but demonstrated that the Boutroses made some effort towards responsible tree management. The report identified no significant issues with the trees.

Findings

Before making orders under Pt 2 of the Trees Act, the Court must be satisfied at s 10(2) that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicants' property, or injury to a person.
With the benefit of onsite observations during the hearing, I am satisfied that branches of some cypress trees, particularly T5 and T6, are pushing against the boundary fence and are damaging slightly, and are likely to more seriously damage, the fence by displacing it. The fence is equally the property of the Ermises and the Boutroses, therefore the trees are damaging, and are likely to damage, the Ermises' property. This can be remedied by pruning the trees to remove those branches contacting the fence.
I pointed out during the onsite hearing that the base of the ponytail palm (T4) is pushing against and displacing the boundary fence. This could be remedied, and further damage prevented, by removing the lower sections of fence palings in contact with T4 to create some clearance of approximately 50 mm between the fence and the tree.
Other trees have not caused damage and are unlikely to do so in the near future. They are also unlikely to cause injury. Palm fronds fall only occasionally, mostly within the Boutroses' property, and the presence of people beneath those trees is infrequent. The New Zealand cabbage trees (T2 and T14) are far enough from the boundary fence that they are unlikely to cause damage within the next 12 months, being the period I regard as the near future as per the principle at [14] in Yang v Scerri [2007] NSWLEC 592.
I have considered the matters at s 12 of the Trees Act. I find nothing there that would prevent or discourage the orders to be made below. The content of the tree permit issued by Burwood Council supports these orders.
As a result of these findings, orders will be made pursuant to s 9 of the Trees Act to prune branches of cypress trees that are in contact with the boundary fence, and to create some clearance between T4 and the boundary fence.

The Part 2A application: obstruction of sunlight and views

The applicants' position

The Ermises claim that the nine cypress trees, T5-T13, form a hedge that severely obstructs sunlight to their windows and the view from the back of their dwelling.
They say that these trees obstruct sunlight to their ground-floor living room glass door in mid-summer from 5:10 pm until 7:31 pm, a total of 141 minutes. They say that sunlight is obstructed from 4:29 pm for 182 minutes to their living room window; to another living room window from 3:42 pm for 229 minutes; and to three windows of their master bedroom for 128, 180 and 185 minutes respectively. They say that during winter the "sunlight obstruction is less."
They say that the trees obstruct views along their south-western border and that it is difficult to see the sky from their garden when standing near the common boundary.

The respondents' position

The Boutroses contest that their trees cause significant impacts to the Ermises' access to sunlight or views.

Findings

Trees T5-T13 are planted to form a hedge and are more than 2.5 metres tall, so according to s 14A of the Trees Act they are trees to which Pt 2A applies.
Before making orders under Pt 2A of the Trees Act, the Court must be satisfied at s 14E(2)(a) that the trees are severely obstructing either sunlight to a window of the applicants' dwelling or a view from the applicants' dwelling.
The Ermises' property is to the north of the Boutroses' property. The common boundary runs roughly 10° offset from east-west, so that the back of the Ermises' dwelling faces ~10° north of due west. The Ermises have not submitted any shadow diagrams, however it is easily determined that the cypress trees do not obstruct any sunlight to their windows during winter. It is only during mid-summer that they find any sunlight obstruction caused by the trees. Such a limited period of shading by these trees is unlikely to significantly impact the Ermises' enjoyment of their property. This is not a severe obstruction of sunlight to their windows.
The alignment of the cypress trees is such that they obstruct a small part of the outlook from the back of the Ermises' dwelling. Due to the topography here, their outlook is of sky above roof tops. The trees obscure the roof of a school to their southwest, and a small part of their total sky view. This is not a severe obstruction of a view from their dwelling. Although the Ermises also complained of impacts to the view from their garden, the Trees Act specifically provides jurisdiction for obstruction of a view only from a dwelling.
As there is no severe obstruction of sunlight or a view, the Court cannot make orders under the Pt 2A application.

Conclusion and orders

As a result of the above, the Court can only make orders in these proceedings to prevent several trees causing damage to the boundary fence.
The Court orders: 1. The Part 2A application is refused. 2. The Part 2 application is granted to the extent of the following orders. 3. Within 60 days of the date of these orders, the respondents are to carry out the following works: 1. Prune trees T5-T13 to remove all branches that are in contact with the fence on the common boundary; 2. Create at least 50 mm clearance between all parts of T4 and the fence on the common boundary by removing the lower sections of relevant fence palings. 1. All tree pruning works are to be carried out by a suitably insured and qualified arborist (minimum AQF level 3 in arboriculture), must comply with Australian Standard AS 4373-2007 Pruning of amenity trees, and must be in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work (2016). 2. The respondents are to give the applicants at least 2 days' notice of the works in (3). 3. The applicants are to allow all access necessary for completion of the works in (3) during reasonable hours of the day. 4. The exhibits are returned, other than exhibits A, B and C. 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: 28 August 2024

The Boutroses refute that palm fronds are likely to cause damage or injury. Most fronds fall within their own property.
They refute that most trees are likely to damage the boundary fence.
The Boutroses lodged a tree permit application with Burwood Council on 30 April 2024, applying to remove all 14 trees on the basis that their "[n]eighbour does not like trees and has asked to remove". On 6 May 2024, Burwood Council issued a permit granting approval to "[p]rune branches on the row of nine (9) pencil pines (Cupressus sempervirens 'Stricta') located on the northern boundary of the back yard, for branches that are in contact with the dividing fence." Burwood Council refused the application for removal of the 14 trees. Mr Joe Lilley, Burwood Council's Tree Management Officer, wrote in the tree permit that the neighbours' dislike of the trees "...is not a matter for Council to consider when assessing a Tree Permit Application."
The Boutroses obtained a report from Karim Soweid of AAA Affordable Tree Loppers and Tree Surgeons. It was of little assistance to the Court but demonstrated that the Boutroses made some effort towards responsible tree management. The report identified no significant issues with the trees.

Before making orders under Pt 2 of the Trees Act, the Court must be satisfied at s 10(2) that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicants' property, or injury to a person.
With the benefit of onsite observations during the hearing, I am satisfied that branches of some cypress trees, particularly T5 and T6, are pushing against the boundary fence and are damaging slightly, and are likely to more seriously damage, the fence by displacing it. The fence is equally the property of the Ermises and the Boutroses, therefore the trees are damaging, and are likely to damage, the Ermises' property. This can be remedied by pruning the trees to remove those branches contacting the fence.
I pointed out during the onsite hearing that the base of the ponytail palm (T4) is pushing against and displacing the boundary fence. This could be remedied, and further damage prevented, by removing the lower sections of fence palings in contact with T4 to create some clearance of approximately 50 mm between the fence and the tree.
Other trees have not caused damage and are unlikely to do so in the near future. They are also unlikely to cause injury. Palm fronds fall only occasionally, mostly within the Boutroses' property, and the presence of people beneath those trees is infrequent. The New Zealand cabbage trees (T2 and T14) are far enough from the boundary fence that they are unlikely to cause damage within the next 12 months, being the period I regard as the near future as per the principle at [14] in Yang v Scerri [2007] NSWLEC 592.
I have considered the matters at s 12 of the Trees Act. I find nothing there that would prevent or discourage the orders to be made below. The content of the tree permit issued by Burwood Council supports these orders.
As a result of these findings, orders will be made pursuant to s 9 of the Trees Act to prune branches of cypress trees that are in contact with the boundary fence, and to create some clearance between T4 and the boundary fence.

The Part 2A application: obstruction of sunlight and views

The Ermises claim that the nine cypress trees, T5-T13, form a hedge that severely obstructs sunlight to their windows and the view from the back of their dwelling.
They say that these trees obstruct sunlight to their ground-floor living room glass door in mid-summer from 5:10 pm until 7:31 pm, a total of 141 minutes. They say that sunlight is obstructed from 4:29 pm for 182 minutes to their living room window; to another living room window from 3:42 pm for 229 minutes; and to three windows of their master bedroom for 128, 180 and 185 minutes respectively. They say that during winter the "sunlight obstruction is less."
They say that the trees obstruct views along their south-western border and that it is difficult to see the sky from their garden when standing near the common boundary.

The Boutroses contest that their trees cause significant impacts to the Ermises' access to sunlight or views.

Trees T5-T13 are planted to form a hedge and are more than 2.5 metres tall, so according to s 14A of the Trees Act they are trees to which Pt 2A applies.
Before making orders under Pt 2A of the Trees Act, the Court must be satisfied at s 14E(2)(a) that the trees are severely obstructing either sunlight to a window of the applicants' dwelling or a view from the applicants' dwelling.
The Ermises' property is to the north of the Boutroses' property. The common boundary runs roughly 10° offset from east-west, so that the back of the Ermises' dwelling faces ~10° north of due west. The Ermises have not submitted any shadow diagrams, however it is easily determined that the cypress trees do not obstruct any sunlight to their windows during winter. It is only during mid-summer that they find any sunlight obstruction caused by the trees. Such a limited period of shading by these trees is unlikely to significantly impact the Ermises' enjoyment of their property. This is not a severe obstruction of sunlight to their windows.
The alignment of the cypress trees is such that they obstruct a small part of the outlook from the back of the Ermises' dwelling. Due to the topography here, their outlook is of sky above roof tops. The trees obscure the roof of a school to their southwest, and a small part of their total sky view. This is not a severe obstruction of a view from their dwelling. Although the Ermises also complained of impacts to the view from their garden, the Trees Act specifically provides jurisdiction for obstruction of a view only from a dwelling.
As there is no severe obstruction of sunlight or a view, the Court cannot make orders under the Pt 2A application.

As a result of the above, the Court can only make orders in these proceedings to prevent several trees causing damage to the boundary fence.
The Court orders:

(1) The Part 2A application is refused.

(2) The Part 2 application is granted to the extent of the following orders.

(3) Within 60 days of the date of these orders, the respondents are to carry out the following works:

(a) Prune trees T5-T13 to remove all branches that are in contact with the fence on the common boundary;

(b) Create at least 50 mm clearance between all parts of T4 and the fence on the common boundary by removing the lower sections of relevant fence palings.

(4) All tree pruning works are to be carried out by a suitably insured and qualified arborist (minimum AQF level 3 in arboriculture), must comply with Australian Standard AS 4373-2007 Pruning of amenity trees, and must be in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work (2016).

(5) The respondents are to give the applicants at least 2 days' notice of the works in (3).

(6) The applicants are to allow all access necessary for completion of the works in (3) during reasonable hours of the day.

(7) The exhibits are returned, other than exhibits A, B and C.

(Disputes Between Neighbours) Act 2006

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