Greenaway v Garcia

Framework

1. I shall initially address the application under Pt 2A of the Trees Act. The Court cannot make orders under Pt 2A of the Trees Act unless it is satisfied that the trees are causing a severe obstruction of views from the applicant's dwelling, or, of sunlight to a window of the applicant's dwelling. If so satisfied, I must consider a range of matters such as privacy and other benefits that the trees provide.

Onsite hearing: observations and submissions

1. The hearing commenced in the respondents' front yard with an inspection of the trees, with Mr Greenaway and Mrs Garcia in attendance.
2. Four trees (the trees) are growing adjacent to the common boundary in an uninterrupted row about eleven metres long. They are a Jacaranda mimosifolia (Jacaranda), two Syzygium sp (Lilly Pilly), and a Castanospermum australe (Black Bean) which had been misidentified as a Toona ciliata (Australian Red Cedar). Behind the trees, an existing metal panel boundary fence, about 1.8 metres high, separates the properties.
3. The trees' foliage creates a dense green wall, through which one effectively cannot see. I bring my own arboricultural expertise to the Court and concur that the trees have incurred little pruning in the past. Their height averages about 7-8 metres.
4. Mr Greenaway proposed the following orders (in summary);

For Pt 2:

• Compensation of $1000 for retaining wall damage and $450 for plumbing costs for root removal from pipe.

For Pt 2A:

• Remove the four trees in the near future.
• Should the trees be replaced, the replacements shall not exceed a height of four metres at maturity, shall be species unlikely to cause property damage, and be planted in accordance with Council requirements.

1. Mr Greenaway discussed previous retaining wall damage and identified approximate locations where sewer pipes had previously been blocked, and residual raised roots which he viewed as a trip hazard. He also noted that the trees' trunks were growing close to the boundary and deemed them likely to cause future damage to his property.
2. The applicant's property is two-storey brick construction and is positioned more than ten metres from the common boundary. The respondents' property is to the north-east of the applicant's property, and their dwelling is set near the middle of their block, with garden between the house and the trees. There are windows along the northern side of the applicant's house, and the respondents are concerned about overviewing of their front yard, and of their house, from these windows.
3. Mr and Mrs Garcia proposed that the trees be pruned rather than removed, should intervention be required. They value the trees for their contribution to the garden and for the privacy they provide, particularly a teenage child's bedroom.

Jurisdictional requirements - Pt 2A

1. In Pt 2A matters, 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?

1. The first test is s 14A(1), that is, are the trees a hedge for the purpose of the Trees Act?
2. Section 14A(1) states: 14A Application of Part (1) This Part applies only to groups of 2 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).
3. The trees were planted in an orderly row, they have grown to over five metres tall since then, and therefore, s 14A(1) is satisfied for this hedge.
4. Section 14B states that an owner of land may apply to the Court for an order to remedy, restrain or prevent the severe obstruction of: 14B Application to Court by affected land owner … (a) sunlight to a window of a dwelling situated on the applicant's land, or (b) 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.
5. Section 14E(1)(a) requires the applicants to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated.
6. Mr Greenaway included copies of ongoing correspondence with the Garcia's over a prolonged period as well as evidence of unsuccessful attempts to organise mediation through a Community Justice Centre (CJC). I am thus satisfied that the applicant has met the requirement to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated, and he has also satisfied the requirement of s 8(1), to give 21 days' notice of the lodging of an application.

Is the obstruction of views severe?

1. The next step is to assess the severity of the obstruction of views from, and sunlight to, the applicants' dwelling as a consequence of any or all of the trees in the hedge.
2. Section 14E(2)(a) states: 14E Matters of which Court must be satisfied before making an order … (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 (ii) are severely obstructing a view from a dwelling situated on the applicant's land…
3. The Court may seek guidance from the first three steps in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity) to assess view sharing situations. [26] - [28] of Tenacity says; 26."The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured". 27 "The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries…." 28 "The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively negligible, minor, moderate, severe or devastating.
4. In the near 15 years that the Garcia's have occupied their property, the four trees have grown steadily and melded into a dense screen, essentially as the former residents intended when they planted the trees in 2004. They obstruct a large proportion of the centre of the applicant's view across his rear boundary from living room windows in his dwelling, that may reasonably be considered particularly valuable; Port Kembla Harbour, land-water interface and an expanse of ocean.
5. While water remains visible to the east along with district views to the north, the extent, position and nature of the view obstruction is such that I deem it severe. Consideration of this site context through the prism of the first three Tenacity steps also led to a determination of severe. As a consequence, s 14E(2)(a) of the Trees Act is engaged.

Balancing of interests

1. As s 14E(2)(a) is met for the hedge, due to the severe obstruction of views from the applicant's dwelling, there is a need to consider the balancing of interests required by s 14E(2)(b). The section states: 14E Matters of which Court must be satisfied before making an order … (2) … (a) … (b) the severity and nature of the obstruction is such that the applicant's interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.
2. In order to determine the balance inherent in this subsection, consideration of relevant matters in s 14F is required. The trees were planted after Mr Greenaway modified his window but before the Garcia's had occupied their property (s 14F (b)). The trees contribute to the scenic value of the land on which they are growing. They soften the landscape and provide visual screening between the two dwellings (s 14F (h)).
3. I also agree that the hedge makes a significant contribution to the respondents' privacy, given the size and position of the applicant's dwelling, and sightlines between the two dwellings (s 14F (l)).
4. Though the applicant seeks removal of the trees, the views that he covets can be regained by pruning the trees, which allows the retention of the trees' important privacy and aesthetic contributions for the respondents. While regular pruning is not ideal, both the two Lily Pilly's and the Black Bean tree can be pruned relatively often to maintain height without unduly affecting their health or function (s 14F (l)). Ideally pruning will be completed regularly so only young growth is impacted, and slow, long duration supplementary watering in summer should help the trees compensate for stress resulting from pruning. The Jacaranda tree, however, does not respond well to height reduction pruning, and it will be removed.
5. Though the trees reduced height may not eliminate all overshadowing of the applicant's backyard and clothesline, consideration of obstruction of sunlight only applies to windows of dwellings under the Trees Act and does not extend to shading of gardens.

Jurisdictional requirements - Pt 2

1. 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.
2. The Court is obliged to consider a number of matters pursuant to s 10 of the Trees Act which states: (1) 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 tree is situated, and (b) if the requirement to give notice has not been waived, that the Applicant has given notice of the application in accordance with section 8.
3. The applicant has provided evidence that the requirement under s 8(1)(a) of the Trees Act: to serve notice to the respondent more than 21 days prior to the proceedings has been satisfied. He has also met s 10(1)(a) of the Trees Act: to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated. Copies of correspondence in the application includes attempts to resolve the dispute directly and recourse to a CJC for assistance.
4. The next major test that is posed, by s 10(2) of the Trees Act, which states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person.
5. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. If orders are to be made, the Court must consider a number of discretionary matters in s 12 of the Trees Act.

Damage caused by the trees

1. Mr Greenaway noted various elements of historical damage allegedly caused by the trees. He said a low retaining wall separating the property was damaged by the trees. Mr Greenaway's son repaired the wall and it appeared on site to be intact and fit for purpose, particularly given the discretion under s 12 (i) of the Trees Act, to consider the 'age and nature of the structure' and allow for reasonable wear and tear over time. Mr Greenaway made an estimate of $1000 as the value of this work by his son and said that most materials for the job were left over on site from previous works. He also noted historical incursion of roots into his sewer pipe which he estimated had cost $465, but he provided no receipts or other evidence to substantiate this.
2. Satisfaction of s 10(2)(a) of the Trees Act requires the identification of a clear causal relationship between roots and the damage sustained. I don't doubt that the historical wall damage occurred, but the applicant's evidence is insufficient to prove a causal link to the trees. In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that "…it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required." Onsite, with the wall long ago repaired, there was no obvious evidence of current or likely damage.
3. The Garcia's claimed that they should not be liable for either of these claims as the damage and repairs occurred many years ago, and they have only recently been made aware of this damage.
4. Section 12 (i) of the Trees Act considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant.
5. 'Failure to give notice to the tree owner when the damage was noticed' and 'Failure to give the tree owner an adequate opportunity to respond to the damage' are specific elements under s 12 (i) of the Trees Act taken into account by the Court when considering whether or not to make orders relating to the damage. If a party is unaware of damage, they are thus unable to respond to the damage, and I am satisfied that the historical damage to the retaining wall and to the sewer falls into this category.
6. The applicant is also concerned about future damage as a result of the trees. Section s10(2) of the Trees Act includes damage in 'the near future'. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, (damage in) the 'near future' is deemed to be a period of 12 months from the date of the determination. In his correspondence, Mr Greenaway was particularly concerned about further damage as a result of the Jacaranda tree, and generally speaking, of the four trees, it is likely to have a larger root system. As a consequence of its unsuitability for repeated pruning under the Pt 2A application, this tree shall be removed, addressing at least the main part of the applicant's concerns. Particularly with the Jacaranda's removal pending, I am not satisfied that the remaining trees are likely to cause damage to the applicant's property in the near future.

Risk of injury

1. Mr Greenaway claimed the trees cause a risk of injury because of the trip hazard from Jacaranda flowers and from the raised roots. The Jacaranda removal will eliminate the flowers. Mr Greenaway spoke of having removed many raised roots from his yard and showed me one main residual root on the north-west edge of the yard, which appeared to be from the Jacaranda. Should it be deemed necessary, the protruding section could easily be removed. As a consequence, I am not satisfied that the trees represent a genuine risk of injury, in either the applicant's or the respondents' properties.

Conclusions

1. In the absence of other trees in close proximity, I am satisfied that trees' roots entered the applicant's sewer pipe, requiring clearance. Insufficient conclusive evidence has been provided, however, to satisfy me that the trees were responsible for the historical wall damage. Nonetheless, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 ('Granger') indicates that even relatively minor damage engages the Court's jurisdiction. Therefore, s 10(2)(a) of the Trees Act is engaged.
2. Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2), but it can be relevant in determining what orders, if any, should be made. Contemplation of orders following satisfaction of s 10(2) also requires the Court to consider matters under s 12 before determining an application made under this Part.
3. Given the applicant's 'failure to give notice to the tree owner when the damage was noticed' and 'failure to give the tree owner an adequate opportunity to respond to the damage', both relevant to s 12(i) of the Trees Act, I consider it unreasonable for the respondents to be financially liable for historical damage to the wall or pipe blockage. The absence of receipts or other material evidence reinforces this conclusion.
4. The Jacaranda shall be removed as a consequence of the application under Pt 2A, and its absence should allay Mr Greenaway's main concerns. Maintaining the remaining trees below a future height of 4.5m should also remove the applicant's view obstruction, while allowing the trees' contribution to the respondents' privacy, landscaping, and protection from the sun and wind, considered in s 12 (b3), to be retained.

Orders

1. The orders of the Court are: 1. Within 45 days of the date of these orders, the respondents, at their expense, shall remove the Jacaranda tree to near ground level, poison stump, and remove refuse. 2. Within 45 days of the date of these orders, the respondents, at their expense, shall prune the height of the hedge comprising two Lilly Pilly trees and one Black Bean tree which are growing loosely parallel to the common boundary, to a height level with a point four (4) metres higher than the base of the northern end of the common boundary fence. 3. The respondents, at their expense, shall maintain this hedge, so that at no time in the future, after completion of the pruning in Order 2, does the height of the hedge exceed a height level with a point 4.5 metres higher than the base of the northern end of the common boundary fence. 4. The pruning works shall be completed by AQF level 3 arborists, with all appropriate insurances, and in accordance with the Australian pruning standard (AS4373:2007 Pruning of amenity trees). 5. The tree works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 6. Should access be required into the applicant's property to undertake these works or to remove refuse, the applicant shall provide such access to the respondents, or arborists they employ to complete the work, who hold all appropriate insurances, upon receipt of at least 48 hours written notice from the respondents. 7. The works are to be completed during reasonable working hours …………………………. J Douglas 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: 09 September 2022