Golden v Li

Land and Environment Court (NSW)|2021-12-02

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

Background to the application

A tennis court covers most of the land between the side boundaries in the rear part of a Turramurra property belonging to Patrick Golden ('the applicant'). Along its south-western side, the tennis court reaches the side boundary shared with Mr Golden's neighbours, Bin Li and Jing Zhang ('the respondents'). On the respondents' property, a Queensland Brush Box (Lophostemon confertus) ('the tree') is approximately 4 metres from this common boundary. A low retaining wall, apparently on or close to the common boundary, supports the slightly-higher land on the respondents' property.
Mr Golden has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders for the respondents to remove the tree or, failing that, for overhanging branches to be pruned back to the boundary. Mr Golden alleges that tree roots are damaging the retaining wall, and debris is damaging the tennis court.

The hearing

The matter was heard via MS Teams. Mr Golden was self-represented, while Ms Kwong represented the respondents. With the material filed by both parties, considered along with their oral and written submissions, I was able to make a decision without requiring a site view. The decision was given ex tempore at the end of today's hearing.

The applicant made reasonable effort

Mr Golden has discussed the tree with Mr Li. They agreed to apply to Ku-ring-gai Council ('Council') to remove the tree. Council refused consent to remove it but permitted some pruning. Unsatisfied with both Council's decision and the extent of pruning done by the respondents' contracted arborist, Mr Golden unsuccessfully tried to persuade the respondents to take further action before he commenced these proceedings. I am satisfied that his efforts have been reasonable, meeting the requirement at s 10(1)(a) of the Trees Act.

Has the tree caused damage to the applicant's property?

The principal element of property damage in Mr Golden's application is the tennis court. Mr Golden submitted that the tree's branches and foliage extended across the boundary for several metres and since the recent pruning they still extend for 3 metres over his tennis court. He said debris, including leaves, twigs, buds and fruits, fall from the tree onto the tennis court. When it rains the debris blocks the stormwater drains along the eastern side and southern end of the tennis court. During heavy rainfall, water is unable to escape down the blocked drains, so washes across the court causing erosion of its stabilised loam surface. This makes the court unusable, leading to further problems of weed and moss growth due to its lack of use. Mr Golden said the tennis court can no longer be hired to groups as a sports facility, as it used to be.
Ms Kwong submitted that other trees grow around the tennis court, even if they might not overhang it to the extent of the brush box. She submitted that any damage to the tennis court could be prevented through reasonable maintenance.
After making his application to the Court, Mr Golden filed further material to support a further claim that the tree's roots are damaging the retaining wall. Three photos he filed show render cracking and lifting from the retaining wall on the section of the wall nearest to the tree. He submitted that an arborist told him roots of the tree are likely to be growing against the wall and damaging it. He submitted that brush box trees have invasive roots and the species is only suitable in streets and parks.
Ms Kwong objected to the further evidence and this additional claim that was not part of Mr Golden's original application. The photos were filed after the date for filing evidence given to Mr Golden in an earlier directions hearing. As the evidence was nothing more than a few photos showing the wall, evidence that would have been observed during an onsite hearing had one taken place, I accepted the photos. Mr Golden provided no other evidence regarding the nature or cause of the damage, so the respondents were not prejudiced by the Court's acceptance of these photos.
Ms Kwong argued that the Court could not be satisfied that the tree has caused damage to the retaining wall.

Findings

This brush box is a typical garden tree, not an uncommon species, growing in the leafy landscape of Turramurra. Aerial photos of the suburb show that most gardens have vegetation including trees and shrubs. Of course, many of the suburb's trees have branches that extend across boundaries, overhanging dwellings, pools, gardens, and here, a tennis court. The common law right to prune overhanging branches to the boundary is curbed by consent requirements for pruning trees specified within the Ku-ring-gai Development Control Plan 2021.
Mr Golden argued that, were it his dwelling beneath the tree, he would need to constantly clean debris from his roof and gutters, which would be unreasonable. The tennis court, he said, should be considered no differently - it requires constant and unreasonable maintenance to remove debris.
If I accept that the tree has caused damage to Mr Golden's property by its leaves, twigs and other debris falling onto his tennis court and blocking the drains, I would still not make orders to prune or remove the tree. While such a situation would enliven the Court's jurisdiction at s 10(2)(a) of the Trees Act, the Court must consider matters at s 12 before making orders - matters that include any acts and omissions of the parties. Damage to the tennis court could be prevented by reasonable maintenance. While Mr Golden might find the level of maintenance unreasonable, it is nothing unusual for the area in which he lives. There is nothing about his situation that would lead me to diverge from the Court's principle established in Barker v Kyriakides [2007] NSWLEC 292 at [20]: "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."
Even before the tree was pruned recently, the same finding would have been reached. It is likely that the amount of debris falling on the tennis court has diminished since the tree was pruned. No orders will be made on this element of the application.
Turning to the retaining wall, the photos filed by Mr Golden show it is a low and narrow retaining wall with render cracking and lifting from the wall. The condition of the wall behind the render is not apparent. Mr Golden has submitted no evidence as to the cause of the damage, but said it was self-evident. While I accept his submission that the expense of expert evidence should be avoided where possible, the Court cannot make orders based on merely the possibility that the tree might be causing damage: see Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62]. I cannot be satisfied that tree roots have caused the damage shown in Mr Golden's photos, rather than the damage resulting only from weathering and deterioration of the wall's render over the many years it has been there. Furthermore, if roots have damaged the wall, there is no evidence that the tree's removal would be required rather than simply pruning roots (some 4 metres from the tree) and repairing the wall. Mr Golden wants to avoid the possibility of future damage to the retaining wall, but I cannot be satisfied that the tree is likely to cause damage in the near future, a period I regard as 12 months as per the principle in Yang v Scerri [2007] NSWLEC 592.
Given the situation, it strikes me that the respondents have not acted unreasonably. Regardless of that, there are no grounds for the Court to make orders in these proceedings.

Orders

As a result of the foregoing, the Court orders: 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: 06 December 2021

At a glance

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Judgment (9 paragraphs)

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Cases Cited (3)

Cited By (2)