Holden v Smith & anor

Mr Holden (Applicant in person) File Number(s): 20903 of 2010

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1This is an application pursuant to s 7 Part 2 and s14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Drummoyne against the owners of trees growing on an adjoining property. 2The trees are a row of 5 Blueberry Ash ( Elaeocarpus reticulatus ) planted along the south-eastern rear boundary of the respondents' property. Tree 1 is the tallest of the 5 trees at about 9m high and is located roughly towards the centre of the row. 3With respect to the part of the application made under s 7 Part 2 of the Act, the applicant is seeking the removal of Tree 1 on the basis that it could cause damage to a glass balustrade and aluminium louvred privacy screen he plans to install on the upper balcony of his dwelling. The privacy screen will extend the full height of the dwelling. These structures are required by Canada Bay Council as a condition of development consent for the applicant's new dwelling. 4The applicant also contends that in strong winds, swaying branches or possibly failed branches from Tree 1 could injure anyone on the top floor balcony or that falling debris from damaged louvres or glass balustrade could injure anyone in the vicinity. 5The respondents oppose the removal of the tree on the basis that it provides considerable amenity to their property. 6Mr Pickles for the respondents submits that correspondence between the parties, tendered in evidence, shows that his clients have been prepared to allow the applicant to prune the tree subject to the applicant applying to the council and owners' consent based on the advice of an arborist. 7Mr Pickles further submits that had a reasonable effort been made by the applicant in regards to the pruning option the matter may not have come before the Court. In reply, the applicant contends that he requested the tree be lopped but council rejected this action and given his inexperience in horticulture he considered his only option was to seek removal of the tree. 8Dealing first with the issue of "making a reasonable effort", this is required in sections 10(1)(a) and 14E(1). Both sections state: (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,... 9In Robson v Leischke [2008] NSWLEC 152 Preston CJ at [191]-[197] discusses what constitutes a 'reasonable effort'. The Court has held that up until a judgment is delivered, the parties have the opportunity to resolve the matter. 10On the evidence before me I see no indication that a 'reasonable effort' has not been made by the applicant despite there being a difference in opinion between the parties as to the method of resolving the issue. 11I also note that if an application passes the relevant jurisdictional tests, sections 9 and 14D give the Court a degree of discretion in the making of orders. The Court is not confined to the position of one party or the other. 12Returning to the part of the application made under s 7 Part 2 of the Act, s 7 states: 7 Application to Court by affected land owner 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. 13The relevant part of this section is 'property on the land'. At the time of the hearing, the glass balustrade and aluminium privacy screens had not been installed. Therefore that property is not 'on the land'. 14The applicant contends that he is taking a proactive approach in order to prevent damage to structures that he is required by council to install. Notwithstanding this council requirement, the fact remains that the elements of his dwelling he seeks to protect do not exist and therefore it would seem that this aspect of the application must fail on this basis. 15If I am wrong in this and I put the applicant's case at its highest, as Mr Pickles put to me in his submissions, that is to assume the structures are installed, would I be satisfied that the jurisdictional tests in s 10(2) are satisfied? 16Under s 10(2) of the Act, the Court must not make an order unless it is 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. 17Mr Pickles refers to Robson & Leischke at [200] where Preston CJ writes: 200 The requirement that the Court be satisfied that the tree has caused or is causing damage to the applicant's property, accords with the requirement at common law that actual damage is required to complete a cause of action in nuisance. The requirement that, if damage has not yet occurred, the Court must be satisfied that "it is likely to occur in the near future" also accords with the requirement that a quia timet injunction should not issue unless the impending damage (which is required to be substantial or almost irreparable) is imminent or is likely to occur in the near future, or put another way, there is "a real, appreciable probability" of irreparable damage:... 18Mr Pickles submits that even if the screens and balustrades were installed, damage is unlikely due to the small size of the branches and, if it did occur, there would not be a 'real or appreciable probability of irreparable damage'. 19In reply, the applicant contends the damage would be damage to the coating of the screens leading to corrosion or perhaps dislodgment of the louvres creating a risk of injury. He reiterated his position that he seeks to prevent damage that he considers foreseeable when the screens and balustrade are installed. 20In considering the evidence and taking a determinative approach to interpreting and applying the Act, I cannot elevate the applicant's case to that higher level and I find that the Act cannot apply to property not on the land. 21The only structure capable of being damaged is the concrete slab of the top storey balcony. By the applicant's own admission, this has not been damaged by the tree nor is it likely to be damaged. 22As the screen and balustrade are not installed, no injury could arise as a result of falling debris should they be damaged by the swaying tree. I also consider it unlikely that anyone is at risk of injury from the tree swaying in strong winds. In the current situation this is unlikely due to the incomplete nature of the construction works; and in any event, it is unlikely that anyone would choose to stand there in strong winds. 23I saw no signs of any defects in Tree 1 that would predispose it to branch failure. 24Therefore I am not satisfied that any of the aspects of the application made under Part 2, to which s 10(2) might apply, satisfy any of the tests under that section and, as a result, the Court has no jurisdiction to make an order under Part 2. Therefore this part of the application is dismissed. However, should circumstances change, a new application can be made. 25Turning to the application made under s 14B Part 2A, the applicant seeks the removal of Tree 1 and the pruning of trees 2-5 to a maximum height of 2.5-3m. 26These orders are sought on the basis that the trees subject to the application obstruct sunlight to the applicant's backyard which is his only area of private open space. 27The trees in question meet the jurisdictional tests in s 14A in that they comprise 2 or more trees that have been planted so as to form a hedge, rise to a height of at least 2.5m and are on appropriately zoned land. 28However, cutting to the chase, another key test in Part 2A relevant to this matter is s 14E(2)(a)(i) and (b). This section states: (2) The Court must not make an order under this Part unless it is satisfied: (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, [not relevant in this matter] and (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 . 29In this regard the application has been made in respect to obstruction of sunlight to a garden. There is no application made with respect to a severe obstruction of sunlight to a window of the applicant's dwelling. 30At the respondents' request, the applicant produced a shadow diagram for 22 June showing the shadows cast from the trees at 3m and 4m in height. This diagram is of no assistance to the applicant as it does not take into account the shadows cast by the applicant's 2-3 storey dwelling (with or without the privacy screens). 31Returning to the jurisdictional tests, Part 2A does not apply to obstruction of sunlight to a garden and therefore as the matter does not meet the test in s 14E(2)(a)(i) there is no requirement to consider s 14E(2)(b) and the balancing of the parties' and tree's interests. The consequence of this is that this element of the application is dismissed. 32Therefore as a result of the foregoing, the Orders of the Court are: (1) The application in its entirety is dismissed. J Fakes Commissioner of the Court