Kolaroski v Vavayis

Land and Environment Court (NSW)|2021-01-22

Background to the application

Eighteen Leyland Cypress trees (Cupressus × leylandii) are planted in the Bardwell Park property belonging to Vicky and Tony Vavayis ('the respondents'). The trees are planted next to the Vavayises' northern side boundary, being the common boundary shared with Mirjana and Robert Kolaroski ('the applicants'). The trees are in two linear groups, separated by a short gap: trees 1-5 to the east, away from dwellings; and trees 6-18 to the west, and directly south of the Kolaroskis' dwelling.
The Kolaroskis have applied to the Court pursuant to both s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), relating to damage caused by trees, and s 14B (Pt 2A), relating to hedges obstructing views.
In their Pt 2 application, the Kolaroskis seek removal of trees 6-18 on the basis that those trees have damaged their concrete path and the fence on the common boundary. They also seek orders for repairing the fence and replacing their concrete path. In their Pt 2A application, they seek orders for trees 4-18 to be pruned and maintained at a height of no more than 2.5 metres, or removed and replaced with trees to be maintained below a height of 2.5 metres.

The applicants made reasonable effort to reach agreement

The Court may only make orders under either part of the application if satisfied that the applicants have made a reasonable effort to reach agreement with the owners of the land on which the trees are situated (ss 10(1)(a) and 14E(1)(a) of the Trees Act). The Kolaroskis purchased their property in late 2015. In September 2017 they discussed with the Vavayises the damage to their path and the fence. They wrote to the Vavayises in March 2018, before having further discussions in August 2020. They then applied to the Court. I am satisfied that they made reasonable effort to resolve the situation.

Framework of Pt 2

The Court may only make orders under Pt 2 of the Trees Act if satisfied, relevantly here, that the subject trees have caused, are causing, or are likely in the near future to cause, damage to the applicants' property. Then, before making orders, the Court must consider the matters at s 12 of the Trees Act.

Relevant issues

The applicants say trees 6-18 have damaged their concrete path, which runs adjacent to the boundary fence. The trees are planted nearby on the other side of the fence. They further say that trees have damaged the boundary fence, pushing it out of its former alignment.
The damaged path is concrete, some 100 mm thick, with no sign of reinforcing steel. Next to the boundary fence, some patches of newer concrete, approximately 65 mm thick, indicate earlier repairs were carried out. These were done before November 2015. The path is extensively cracked and lifted along the section near the trees, with sections of the path further from the trees being in better condition.
Trees 6-18 were present when the applicants purchased their property. They are alongside the damaged sections of pathway on the applicants' property. They grow in shallow soil atop a rock shelf, limiting the depth of roots. Photographs show that a trench was dug into the rock for planting the trees, limiting soil the soil volume available for root growth. According to the applicants, this has forced roots to grow onto their property.
Melanie Howden, the arboriculturalist engaged by the Vavayises, inspected the site and prepared a report (Exhibit 1). On page 6 of her report, Ms Howden acknowledged "…that some of the trees were planted in a trench excavated in the rock which would greatly have restricted the radial development of the root systems. This could potentially exacerbate the movement of the trees during strong wind events." Ms Howden conceded that, although no evidence of causation has been provided, it is possible that roots have damaged the path.
The Kolaroskis engaged engineer Andrew Konstantinoff to assess the damage. He attended the site in October 2020 and prepared a report (Exhibit B). He concluded that the path was damaged by movement of tree roots during winds. Trees nearer the applicants' dwelling were sheltered from some wind and have not caused damage.
Mr Loether, solicitor for the respondents, pointed out that Mr Konstantinoff conducted no excavation or other investigation to locate tree roots. Ms Renner, solicitor for the applicants, argued that Mr Konstantinoff had found no other likely cause for the damage, so root damage was most likely.
Ms Renner submitted that pruning the trees would not prevent further root damage, and that a root barrier could not be installed this close to the trees without cutting roots and destabilising them.
Ms Howden also concluded that a root barrier would be likely to damage the trees. She thought that, if it is demonstrated that tree roots have caused damage, further damage is likely as the root systems continue to develop.
Mr Loether argued that the Court must be satisfied that trees have caused damage - it must be more than a mere possibility. He said Mr Konstantinoff's report provided no real evidence showing causation, referring to the Court's principle in Fang v Li [2017] NSWLEC 1503. Mr Konstantinoff undertook no relevant investigations. The nature of the concrete path, and whether it is fit for purpose, is unknown, argued Mr Loether. He submitted that there was no basis on which the Court could make orders, but if I found otherwise, he stressed that the Court should consider the age of the path, its general deterioration, and that it might be reasonable for the parties to share the costs of path repair equally. He thought the applicants' quote for repairs was excessive, and that consideration might be given to alternatives such as a gravel path. He saw no need to remove the trees, citing their contribution to the respondents' privacy and amenity.
The respondents conceded that their trees had affected the alignment of the boundary fence, and offered to repair the fence.

Findings

In making the following findings, I have considered the relevant matters at s 12 of the Trees Act.
While Mr Konstantinoff's findings are not, in my mind at least, conclusive, I am satisfied that, on the balance of probabilities, roots from the respondents' trees have damaged the concrete path. However, I find that the age and construction of the path are also likely to be contributing factors. More importantly, I think it is possible that the path was damaged, at least to some extent, in 2015 when the applicants purchased their property. When asked, they asserted this was not the case, but there is no photographic evidence to demonstrate this. There are, however, photographs that show the trees' height in November 2015 - they were already tall, perhaps 8 metres, with vigorous healthy crowns. Extensive root growth must already have occurred by then. It is not contested that sections of concrete alongside the fence had already been replaced before November 2015, suggesting to me that root damage was already progressed to some extent. It is therefore possible that the applicants have suffered no significant loss themselves.
While it is likely that trees have contributed to some further damage to the path since 2015, it appears that, even at that time, the path might have required repair or replacement in the foreseeable future. I am not satisfied that the applicants have suffered a significant loss. They submitted that the path requires replacement. If that is the case, its replacement will be a matter for them.
If the trees have contributed to damage, as is likely, it is not known which specific trees have damaged the path. It could be assumed that all trees alongside the damaged sections of path have roots beneath it, but this is not known. A non-specific finding that some trees have damaged the path might be sufficient if orders were being made for works to the path, but the Court must be satisfied for any one tree that it is causing damage before orders can be made to interfere with that tree (see [24] in Summers v Kumar [2019] NSWLEC 1041). Perhaps trees 6-18 are likely to cause further damage to the path in the near future. But if the applicants replace their path, as they say is required, a new path constructed to suit the conditions should not be affected by tree roots.
It was apparent from inspection during the onsite hearing that the boundary fence has been pushed by the trees, displacing it from its vertical alignment. It will fall to the respondents to repair the fence.

Framework

Part 2A of the Trees Act only applies to groups of two or more trees planted to form a hedge that rises to at least 2.5 metres in height (s 14A(1)). It is not contested that the trees are planted so as to form a hedge. They were recently pruned, in October 2020 after the application was made, so that they are now approximately 3 metres tall. They have been significantly taller in the past.
Under Pt 2A, the Court may only make orders if it is satisfied that the trees are, relevantly for this application, severely obstructing a view from the applicants' dwelling (s 14E(2)(a)(ii)). The Court must also be satisfied that the severity and nature of the obstruction outweighs any reasons to avoid interfering with the trees (s 14E(2)(b)).
The Court has consistently found that any obstruction must have developed while the applicants have owned the property. The Trees Act was not intended to provide a right to sunlight or views, nor to remedy a severe obstruction that is already present when somebody purchases a property (see [47]-[50] in Fryday v The Owners - Strata Plan No 15039 [2019] NSWLEC 1150).

Relevant issues

The trees were planted at different times, with trees 1-5 and 13-18 planted well after trees 6-12. Photographs show that in November 2015 all 18 trees were present on the respondents' land: trees 1-5 were recently planted and relatively short, perhaps no taller than the fence; trees 6-12 were taller, perhaps 8 metres tall; trees 13-18 were also relatively short, perhaps fence height or a little taller. This becomes relevant further below.
Despite the staggered planting times, all trees are planted to form a hedge; or in this case, given the gap between trees 5 and 6, they are planted to from two hedges, trees 1-5 forming one hedge and trees 6-18 forming another. At one stage, trees 6-12 grew to a height of 8 metres or more. When the Kolaroskis applied to the Court, the trees were up to 4.5 metres tall. All trees were pruned again in October 2020 so that at the time of the hearing they were approximately 3 metres tall.
Trees 1-3 are not part of the Kolaroskis' application.
The affected views, according to the Kolaroskis, are from their study at the rear of their house, their rear deck, their laundry, their kitchen, and a bedroom. The rooms are on the south side of their house, potentially with views to the south across the golf course and valley of Bardwell Park, including the treed landscape and the sky.

Study

The view from the study is principally to the east, although it is possible to look out to the southeast, where trees 1-9 (or thereabouts) can be seen. As stated above, trees 1-3 are not part of the application. Trees 4 and 5 are more distant and obstruct only a small part of the overall view from this window. Trees 6-9 are closer to the dwelling, and reach more than a metre above the boundary fence. Before they were pruned in October, they reached more than 2 metres above the fence, as shown in a photograph in the report (Exhibit 2) by Jeff Mead, a planner engaged by the respondents. It is apparent from that photo that, even at that time, the trees obstructed only a small portion of the lower landscape view to the southeast. The tops of more distant trees, and the sky above, could still be seen. Considering that this is not the principal viewing angle out of this window, it does not reach the jurisdictional threshold of a severe obstruction.

Rear deck

Mr Loether submitted that the applicants' deck, which attaches to the dwelling and is uncovered, is not part of their dwelling. However, the Court has often considered views from decks in applications made under Pt 2A of the Trees Act. Notably, in Haindl v Daisch [2011] NSWLEC 1145 at [124]-[131] the Court considered views from an uncovered pool deck. In McNally v Serbos [2019] NSWLEC 1354, orders were made to prune a hedge after trees were found to severely obstruct a view from a deck. The respondents' planner, Mr Mead, thought the deck was not part of the dwelling. He referred to the Court's finding in Burns & anor v St Clair & anor [2015] NSWLEC 1185, where views from pool surrounds and a garden terrace were found not to be views from a dwelling, ignoring that in those very proceedings Fakes C considered views from a deck (V2 at [10]).
The view to the south from the Kolaroskis' deck is best depicted in the following photo from page 12 of Mr Mead's report. Trees 1-5 can be seen above the fence at the left of the photo, with trees 6-9 (or thereabouts) reaching further above the fence in the right half of the photo. While trees 6-9 could be said to obstruct views of the more distant trees, the extent of the overall view obstruction from here is not 'severe', the threshold required at s 14E(2)(a)(ii) of the Trees Act before the Court can make orders.
I appreciate that trees 6-12 have been much taller in the past, perhaps 8 metres or so, at which time the obstruction might have been considered severe. However, photographs show that they were that height in 2015 when the Kolaroskis bought their property. The view obstruction caused by trees 6-12 in 2015 was then as severe as it could become. The applicants' views have not been diminished by those trees. They have not lost a view from the deck - in fact, they now have greater access to the southern view than when they purchased.

Laundry

The view over the fence from the south-facing laundry window is obstructed by the section of hedge containing trees 6-12. It might be considered a severe obstruction, but no orders should be made on this basis for two reasons: firstly, the obstruction was even more severe when the Kolaroskis purchased this property, and secondly, the laundry is a utility room used relatively infrequently.

Kitchen

As with the laundry, the view over the boundary fence from the south-facing kitchen is obstructed. From a standing position, the lower half of the view is obstructed by the cypress hedge, with more distant trees and sky visible above that. It appears that approximately half of the view (the 'left' half when looking out) was obstructed by the taller trees (tree 12 and perhaps tree 11) when the Kolaroskis purchased their property. The available view has changed a little, but its severity has not increased during the applicants' ownership, so orders will not be made on this element of the application.

Bedroom

Trees seen through the bedroom window are within the hedge section containing trees 13-18. They are now perhaps a bit taller than when the Kolaroskis purchased their property, but they provide a screen only in the lower part of the outlook, where the applicants might otherwise see into the rear part of the respondents' dwelling. A view of distant trees remains above the cypress hedge. I do not consider the view obstruction severe, but even if it were, the benefits of privacy, which must be considered under s 14F of the Trees Act, outweigh any reason to interfere with the trees.

Findings

Views from the applicants' study, the rear deck, and the bedroom are not severely obstructed. Views from their laundry and kitchen might now be severely obstructed, but no more than they were when the Kolaroskis purchased their property. They have not lost access to views that were available to them previously.
Having considered the relevant matters above, no orders should be made to interfere with the trees under the Pt 2A application.
The trees are now approximately 3 metres tall. The Vavayises submitted that they intend to maintain the trees by pruning them annually at a height of 2.8 metres, or approximately one metre above the boundary fence. Based on observations during the onsite hearing, and considering the balance of view access for the applicants versus privacy for the respondents, this seems a reasonable approach. The applicants expressed that they would be satisfied with this approach. Because of the findings above, the Court has no jurisdiction to order such pruning, so it is simply noted here for future reference.

Orders

Based on the foregoing reasons, the Court orders that: 1. The Pt 2A application is refused. 2. Within 60 days of the date of these orders the respondents are to engage a suitably experienced contractor to repair the boundary fence on the common boundary shared with the applicants so that the fence is returned to its vertical alignment alongside trees 4-18 in their cypress hedges. 3. The respondents are to give the applicants at least 7 days' notice of these works. 4. The applicants are to allow any access necessary for the works to be completed. 5. The Pt 2 application is otherwise refused. 6. The exhibits are returned, except for Exhibits A and C.

Amendments 11 June 2021 - Corrected typographical error at paragraph [36]. 01 September 2021 - Amended jurisdiction to Class 2. 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: 01 September 2021

At a glance

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Judgment (15 paragraphs)

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Cases Cited (6)