Kingsley-Smith v O'Brian & ors

The Part 2 application

1. The applicant contends that T1 has damaged the dividing fence by growing against it causing two posts to crack and two panels to lean. She maintains that unless completely removed, the bamboo will continue to cause damage. It is also alleged that before it was cleared, culms from T1 hit the applicant's gutter. It is also claimed that T2 overhangs the applicant's property and in a storm could potentially cause damage to the dwelling or injury to anyone should the entire clump blow over. It is also contended that foliage and debris from all three clumps of bamboo falls into the pool and in the past has blocked the pool filter and guttering of the applicant's dwelling.
2. The applicant is seeking compensation for cleaning of gutters, cleaning up of the yard, repair of the timber fence, pool cleaning and replacement of a pool pump and pool cell. The estimated amount is $3,800.00. During the on-site hearing Mr Sproule also suggested that there should be compensation for damage to the guttering however the only itemised cost of any repair to any element of the guttering is a sum of $50 for repair of a burst downpipe. The principal element of claim is the replacement of the dividing fence. While the application seeks only general orders to "remedy" the alleged problems with the bamboo, it appears that the applicant's preference is the removal of all bamboo from the respondents' property.
3. In applications under Part 2, the key jurisdictional test is found in s 10(2). This 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.
4. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…".
5. In Robson v Leischke [2008] NSWLEC 152 (2008) LGERA 280 at [176]-[189], Preston CJ considers that the tree which is the subject of the application need not be the sole cause of the damage in order to engage the Court's jurisdiction.
6. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.
7. During the on-site hearing I was shown the sections of fence alleged to have been damaged by T1. The panel of the original fence and posts adjoining the western end of the row of T1 was found to be upright and the post solid. [A newer fence has been erected up slope of the remaining section of original fence and beside the remains of T1.] The panels and posts in contention are downslope of the end of the row of bamboo. The posts are cracked and the panels, while easily moved are functional and apparently stable enough.
8. The respondents contend that the original fence is 13 years old and has partially failed because of its age, materials and wood rot. An extract of a building inspection report provided to them from the building inspector who prepared the report on behalf of the third and fourth respondents states: Fence deterioration. Sections of the fencing indicate wood rot and damage due to prolonged exposure to weather conditions. A lean was also found in sections of the fencing which generally indicates wood rot to the bases. Further damage is likely is left unattended. Replacement of several fence posts will help preserve and extend the life of the fence…
9. The extract from the report includes several photographs of the sections of fence in contention. There is no mention of bamboo.
10. The respondents submit that there is no evidence that the bamboo has caused the down slope damage to the fence. In citing Yang v Scerri they also contend that there is no evidence to prove that any of the bamboo will cause any damage in the near future. They also state that until recently the displaced panels of fence have been supported by star pickets installed by Mr Sproule. Mr Sproule acknowledged this had been the case.
11. Mr Sproule remained adamant that the bamboo is the sole cause of the damage to the fence and if not fully removed, the damage will continue. He presses the replacement of the fence at the respondents' cost.

Findings - part 2 application

1. While a tree need only be a cause of damage in order to satisfy the jurisdictional test in s 10(2), I am not satisfied to the extent required by that subsection that the bamboo has caused the damage to the sections of fence identified by the applicant. As stated above those panels are down slope from the bamboo and the adjoining panel is quite firm. I was not shown any evidence of culms displacing or otherwise damaging the fence or any evidence that this is likely to happen in the near future. I agree with the building inspector that the state of the fence is due to its age and material construction. No orders will be made for any payment by the respondents for the replacement of the fence.
2. In regards to injury, the applicant has not provided any evidence of likely failure, partial or complete, of the clump of bamboo identified as T2. There has been no injury caused by any of the bamboo to anyone to date.
3. I was not shown the section of downpipe allegedly burst by a blockage of leaves. While I am not satisfied that any damage has occurred to the guttering or the pool as a consequence of the leaves, or is likely in the near future to occur, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter.
4. In Preston CJ at paragraphs [168] to [173] discusses 'damage' in general. In this discussion, his Honour specifically noted (at [171]) that: 171 However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7.
5. Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that: 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.
6. There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter.
7. In regards to the compensation claim, owning a pool in the vicinity of any tree requires on-going and routine maintenance. I note the invoices for the majority of costs relating to the pool, including the filter, pre-date the applicant's ownership. As T1 has been cut to ground level, there is no risk in the near future of any damage being caused by it to the applicant's property.
8. I find there is insufficient evidence to satisfy any element of s 10(2) and therefore the Court has no jurisdiction to make any orders for any further intervention with T1 or any intervention with the other nominated trees.
9. Therefore, the application under Part 2 is dismissed.

The Part 2A application

1. In applications under Part 2A, there are a series of jurisdictional tests which must be sequentially satisfied before the Court's powers to make orders are engaged.
2. The first test, in s 14A(1)(a) is whether the trees are trees to which Part 2A applies; that is, are there two or more trees planted so as to form a hedge?
3. I agree that the rows of bamboo identified as T1 and T3 were planted so as to form a hedge. However, T1 has been cut to ground level and is less than 2.5m and therefore the plants in T1 are not plants to which the Part applies. Further, given the effective removal of T1, there can be no obstruction of sunlight or views arising from it. Therefore all elements of the application that involve the impact of T1 on sunlight or views are dismissed.
4. As stated above, the uncontested evidence of the first respondent is that he planted T2 from a single pot comprising two or three stems. While the clump has clearly expanded and now comprises many stems, I am not satisfied that it meets the criteria in s 14A(1)(a) which states that Part 2A only applies to groups of two or more trees planted so as to form a hedge. However, for completeness I have nonetheless considered the impact of T2 on sunlight and views.
5. The key test in applications made under Part 2A is found in s 14E(2) which 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, 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.
6. While s 14B of the Act enables an owner of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of a view from a dwelling or of sunlight to windows of a dwelling on the applicant's land, the obstruction must first be found to be a severe obstruction as a consequence of the trees to which the Part applies.
7. The use of the word 'are' in s 14E(2)(a)(i) requires the trees to be severely obstructing the view at the time of the hearing. This is discussed in some length in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at paragraphs [43]-[52]. In regards to sunlight, while the time of the hearing may not coincide with the time the sunlight is severely obstructed, the applicant must provide sufficient evidence to prove the trees, at their height at the time of the hearing, are severely obstructing sunlight to the nominated windows.
8. The starting point for any assessment of impact on views or sunlight must date from the time the applicant purchased the dwelling (see an extensive discussion in McDougall v Philip [2011] NSWLEC 1280).

Sunlight

1. The major obstruction to sunlight described in the application claim form was to north-facing windows and a glass sliding door of the verandah at its north-western end. The removal of T1 has resulted in no severe obstruction of the north-facing windows. There is no evidence in the application form, such as shadow diagrams, demonstrating the impact of the remaining trees on sunlight to windows of the applicant's dwelling. A number of photographs show the impact of T1. Others are taken in the morning, a time when the west-facing windows, being the majority of the windows along the verandah, could not receive sun. The remaining trees in question are to the north-west of the dwelling. The photographs also indicate the shading provided by the verandah roof.
2. Therefore there is no evidence to demonstrate that any of the remaining trees, including T2, severely obstruct sunlight to any of the applicant's windows and this element is therefore dismissed.

Views

1. The removal of T1 has removed any alleged obstruction of views to the north.
2. If I were to put the applicant's case at its highest and consider T2 to be a tree to which the part applies (which I do not), I am not satisfied that T2 severely obstructs views from the applicant's property. While it does obstruct a portion of the expansive views available from the nominated viewing points, the portion it obstructs is of the Coles car park and part of the district views beyond. The car park can be seen from various locations along the verandah.
3. The Court has considered the meaning of 'a view' in Haindl v Daisch [2011] NSWLEC 1145 where the Commissioners at [26] state: 26 However, we are of the opinion that the words a view relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis.
4. In a number of decisions, the Court has considered the dictionary meaning of 'severe'. Perhaps the most apposite to 'hedge' cases are the words 'extreme' or 'harsh'. Thus the legislature has set a high bar in using the word 'severely' in Part 2A of the Trees Act.
5. In my opinion, the obstruction is minor and well short of the threshold of 'severe' required by the legislation in order to engage the Court's jurisdiction. However, having determined that T2 is not a tree to which the Part applies, the matter of whether it severely obstructs views or sunlight is academic.
6. There is no evidence to demonstrate that T3 severely obstructs any views, other than of the roofs of downslope dwellings, from the applicant's dwelling.
7. As a consequence the application under Part 2A is dismissed.

Orders

1. Having found that none of the key jurisdictional tests in either Part 2 or Part 2A are sufficiently satisfied, the Orders of the Court are: 1. The application in its entirety is dismissed.

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Judy Fakes Acting Commissioner of the Court

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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: 16 December 2016