Kameron v Pi

Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether trees have caused damage — whether trees are likely to cause damage or injury — Pt 2A application — neighbouring trees — whether trees are planted so as to form a hedge — obstruction of views — whether the obstruction is severe

Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW), ss 7, 8, 9, 10, 12, 14A, 14B, 14C, 14D, 14E, 14F

Cases Cited: Yang v Scerri [2007] NSWLEC 592

Texts Cited: Safe Work Australia, Guide to managing risks of tree trimming and removal work (July 2016)

Category: Principal judgment

Parties: Attila Kameron (First Applicant)
Prudence Kameron (Second Applicant)
Kien-Hai Pi (First Respondent)
Ming-Hwa Pi (Second Respondent)

Representation: Counsel:
A Kameron (Self-represented) (First Applicant)
P Kameron (Self-represented) (Second Applicant)
K Pi (Self-represented) (First Respondent)
M Pi (Self-represented) (Second Respondent)

File Number(s): 2025/470296

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER: This tree dispute between neighbours in Longueville involves six trees situated on land owned by Kien-Hai Pi and Ming-Hwa Pi (the Pis), who appreciate the trees’ contribution to their landscape and to privacy. Their neighbours, Prudence and Attila Kameron (the Kamerons), have various issues with the trees. The Kamerons have applied to the Court pursuant to both s 7 and s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders for the Pis to remove some trees, prune others, and relocate one tree.

2. Some of the Kamerons’ issues with the trees relate to damage that the trees have or are likely to cause, or injury they are likely to cause. They seek orders under Pt 2 of the Trees Act to prevent trees causing damage. The Kamerons also seek orders under Pt 2A of the Trees Act to remedy and prevent a view obstruction caused by some of the trees. Their issues are generally set out in their Claim Details forms for each part: Forms G and H in Exhibit A. Their application form (Form C in Exhibit A), which they completed without any legal advice, did not include all orders that they seek under each of Pt 2 and Pt 2A, but the Pis were aware of the Kamerons’ issues and the orders they seek. The following table sets out the orders the Kamerons seek for each tree under Pt 2 and Pt 2A of the Trees Act.

| Tree no. | Species | Pt 2 orders | Pt 2A orders | | 1–3 | Camphor laurel | Removal | Removal | | 4 | She-oak | Removal | Removal | | 5 | Bougainvillea | Relocate/prune | Relocate/prune | | 6 | Privet | Removal | |

3. The trees all grown in a garden bed along the Pis’ back boundary, which is the common boundary they share with the Kamerons. At the onsite hearing, the Court inspected the trees and relevant parts of both properties. The parties were self-represented. The application form identified Kien-Hai Pi as the only respondent, but both he and his wife own their property, so Ming-Hwa Pi is joined as the Second Respondent.

4. The issues were distilled into the two separate parts of the Trees Act and are dealt with accordingly below.

The Part 2 application – damage or injury

Application to the Court

5. The Kamerons applied for orders pursuant to s 7 of the Trees Act to prevent trees causing damage to their property or injury to a person. As required by s 7, the trees are situated on adjoining land.

Notice of the application

6. The Kamerons gave notice of their Pt 2 application as required by s 8 of the Trees Act.

Jurisdiction to make orders

7. The Pt 2 orders that the Kamerons seek are orders the Court could make at s 9 of the Trees Act if all jurisdictional tests are met, although the Court may make different orders as it sees fit in the circumstances.

Reasonable effort to reach agreement

8. The Kamerons have discussed the trees with the Pis and have corresponded with them via email, but have been unable to persuade the Pis to agree to their requested outcomes. I am satisfied that the Kamerons made a reasonable effort to reach agreement with the Pis: s 10(1)(a) of the Trees Act.

Whether the trees have caused, are causing, or are likely to cause damage

9. The Court may only make Pt 2 orders if the hurdle at s 10(2) of the Trees Act is passed.

10 Matters of which Court must be satisfied before making an order

(1) …

(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.

10. For each tree in the application, the test at s 10(2) must be applied to the tree and satisfied before orders can be made for that tree.

Three camphor laurels

11. Three camphor laurels (Cinnamomum camphora) (trees #1–3) growing near the Pis’ rear boundary are 4–6 metres tall. The Kamerons allege that roots of these three trees are likely to damage their property, and that leaves, twigs and other debris fall from the trees onto their property and into their pool. They want the trees removed to prevent damage.

12. The three camphor laurels are young trees with the potential to become large trees at maturity. They are close to the dividing fence on the common boundary, and a short distance from the Kamerons’ pool. These trees have not caused any property damage, nor are they currently causing damage. In the long term, they have potential to damage the Kamerons’ property. But to pass the hurdle at s 10(2)(a) of the Trees Act, the Court must be satisfied that these trees are likely to cause damage to the Kamerons’ property in the near future. Since Yang v Scerri [2007] NSWLEC 592, the Court has consistently regarded a period of 12 months as a reasonable representation of ‘the near future’. The Kamerons presented no evidence to suggest that damage is likely in the near future. I observed the trees and saw no surface roots near the fence. No branches are against the fence, and only small branches touch the lattice that sits atop the fence, but they are unlikely to cause damage in the near future. Debris from the trees might be a nuisance to the Kamerons, but nuisance that does not result in damage does not pass the hurdle at s 10(2)(a) of the Trees Act.

13. The three camphor laurels have not caused damage nor are they likely to cause damage in the near future. No orders can be made on this element of the application.

The she-oak

14. A large stump of a she-oak (Casuarina sp.) (tree #4) remains on the Pis’ property near the common boundary. Before being reduced to a stump, on several occasions, large parts of the she-oak broke and fell onto the Kamerons’ property and another neighbouring property. The tree damaged the dividing fence on the common boundary. The Pis do not dispute that the tree caused damage. The Kamerons do not claim any compensation for damage. Since being reduced to a stump, the she-oak has resprouted from the stump: approximately 4 shoots attached to the stump’s outer edge have reached around 4 metres in height. The Kamerons rightly point out that these shoots are relatively weakly attached to the stump and, when these shoots grow larger, they will be likely to break in winds and fall onto the Kamerons’ property causing more damage. I accept this. The tree is unlikely to cause damage in the near future, but because it has already caused damage the Court can make orders pursuant to s 9 of the Trees Act to prevent damage.

15. The Pis appreciate the tree’s contribution to their garden. They hoped it would develop into a large tree again to provide shade and privacy. The Pis were unaware of the potential risk that will develop as the tree regrows.

16. I have considered the matters at s 12 of the Trees Act. The tree has little value. In the circumstance, it seems appropriate that the Court makes an order for the Pis to remove the tree’s shoots and prevent further regrowth, thereby avoiding the risk of property damage that would otherwise develop.

The bougainvillea

17. A bougainvillea (Bougainvillea sp.) (tree #5) near the common boundary has grown to reach about 6 metres tall and partly overhangs the Kamerons’ back garden. The Kamerons submitted that its roots might damage the fence. They submitted they would require a permit every time they wish to prune its branches. The branches are thorny and dangerous to handle.

18. I observed the bougainvillea and saw no surface roots near the fence. No branches are against the fence, and only small branches touch the lattice atop the fence, but they are unlikely to cause damage in the near future. Because the tree has not caused damage, nor is it likely to cause damage in the near future, no orders can be made on this element of the application.

The privet

19. A privet (Ligustrum lucidum) (tree #6) growing near the common boundary is around 4 metres tall. The Kamerons submitted that it possibly won’t cause any damage, but it is a weed that should be removed.

20. Being a weed species is not one of the criteria at s 10(2) of the Trees Act that would permit the Court to make orders. The privet has not caused damage nor is it likely to cause damage in the near future. No orders can be made on this element of the application.

The Part 2A application – obstruction of a view

Application to the Court

21. The Kamerons applied for orders pursuant to s 14B of the Trees Act to prevent a severe obstruction of a view caused by trees that are situated on adjoining land. They explained that the three camphor laurels, the she-oak and the bougainvillea all obstruct, or will obstruct, a view from their dwelling.

Notice of the application

22. The Kamerons gave notice of their Pt 2A application as required by s 14C of the Trees Act.

Jurisdiction to make orders

23. The Pt 2A orders that the Kamerons seek are orders the Court could make at s 14D of the Trees Act if all jurisdictional tests are met, although the Court may make different orders as it sees fit in the circumstances.

Reasonable effort to reach agreement

24. I am satisfied that the Kamerons made a reasonable effort to reach agreement with the Pis: s 14E(1)(a) of the Trees Act.

Whether Pt 2A applies to the trees

25. The jurisdiction of Pt 2A of the Trees Act is limited at s 14A:

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).

(2) Despite section 4, this Part does not apply to trees situated on Crown land.

Three camphor laurels

26. The three camphor laurels (trees #1–3) grow in a straight line, parallel with the dividing fence on the common boundary. The central tree is midway between the two others. The trees’ branches and foliage overlap and intermingle.

27. Mr Pi submitted that he did not plant the three camphor laurels. He likes the privacy that the trees provide, screening his dwelling from the Kamerons, who are upslope from the Pis.

28. Camphor laurels tend to self-seed easily, making them a weed species in parts of NSW. Nevertheless, in my mind, it would be too much of a coincidence for three camphor laurels to self-seed in a straight line, at regular spacings, with no others appearing nearby. I find it more likely that the trees are planted for the purpose of privacy screening. Their branches and foliage already overlap and intermingle so that they form a continuous screen along this section of the common boundary. That is, they are planted so as to form a hedge. They are 4–6 metres tall. They are trees to which Pt 2A of the Trees Act applies.

The she-oak

29. The she-oak (tree #4) is a single tree that predates the other trees. It was not planted with any intention to from a hedge and it does not now form a hedge. It is not a tree to which Pt 2A of the Trees Act applies.

The bougainvillea

30. The bougainvillea (tree #5) is a single tree with two stems. It was not planted with any intention to from a hedge and it does not now form a hedge. It is not a tree to which Pt 2A of the Trees Act applies.

Whether the Court can make orders for the camphor laurels

31. The Court may only make orders in the Kamerons’ Pt 2A application if the hurdles at ss 14E(2)(a)(ii) and 14E(2)(b) of the Trees Act are passed.

14E Matters of which Court must be satisfied before making an order

(1) …

(2) The Court must not make an order under this Part unless it is satisfied that—

(a) the trees concerned—

(i)…

(ii) are severely obstructing a view from a dwelling situated on the applicant’s land, 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.

32. After purchasing their property in 1998, the Kamerons enjoyed the valley view from their kitchen and rear deck across the properties downslope to the west, including the Pis’ property. The three camphor laurels have grown to obstruct that view. Although they are relatively young, the obstruction is already severe. It will quickly become more severe as the species is relatively fast-growing.

33. I have considered the matters at s 14F of the Trees Act. The Pis appreciate the camphor laurels for their amenity, their contribution to their landscape and to privacy. The trees provide some shading. The trees do not benefit the local ecosystem, nor do they have any other social or environmental value.

34. I have considered the growth potential of the three camphor laurels and the potentially far greater impacts they would have on the Kamerons’ view when they reach their mature size. The view is a pleasant district view that would no longer be available if the trees are left to grow. Orders for regular pruning of the trees to prevent this would be unreasonably onerous on the Pis. In the circumstances, it seems appropriate to order the removal of these three trees, with some replacement planting to compensate for the loss of canopy.

Other matters

35. Other matters were raised during submissions: incidents of trespass; denials of applying for a tree permit despite Lane Cove Council issuing a permit addressed to Mr Kameron; the parties’ motivation for taking action or avoiding action; failure to honour agreements, and so. Other than where such issues are relevant to this decision, I have not addressed them within this judgment.

Orders

36. The Court orders that:

37. Ming-Hwa Pi is joined as the Second Respondent in these proceedings.

38. The application is granted to the extent of the following orders.

39. Within 30 days of the date of these orders, the respondents, or a suitably experienced contractor they engage and pay for, are to remove the shoots that have regrown from the she-oak’s stump and take all appropriate steps (e.g. stump-grinding, poisoning, or other actions as they see fit) to prevent further regrowth from the stump.

40. The respondents are to engage and pay for a suitably qualified (minimum AQF level 3) arborist to remove the three camphor laurels within 30 days of the date of these orders. These works must be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

41. The respondents are to take all appropriate steps (e.g. stump-grinding, poisoning, or other actions as they see fit) to prevent the camphor laurels regrowing.

42. The respondents are to plant two replacement trees on their property within 60 days of the date of these orders. The trees must be planted at least one metre from any boundary.

43. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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