Kumar & anor v Song & anor

Land and Environment Court (NSW)|2015-09-14

Judgment

COMMISSIONER: The applicants have applied under both s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for orders for intervention with a row of 26 Leyland Cypress (x Cupressocyparis leylandii) trees growing on an adjoining property in West Pennant Hills.
The applicants contend that the trees severely block sunlight to windows of their dwelling and severely obstruct views from their dwelling. In addition, the applicants claim that roots from the trees have blocked their sewer and will continue to do so. The applicants concerns are largely based on internet research they have undertaken on the characteristics of the Leyland Cypress.
The orders sought are:

The removal of the trees;
Reimbursement for money spent on unblocking the sewer; and
Rectification of the damaged section of sewer.

In the alternative, if the trees are not to be removed:

Pruning to a height of 2.5 m or a height that provides views of the sky; and
Installation of a root barrier.

The applicants propose that the respondents pay for all elements of the proposed orders.
The respondents value the trees for the privacy they afford their property and have no objection to the applicants pruning any branches overhanging the applicants' property. The respondents state that as their property is considerably lower in elevation that the applicants' land, without the trees, they would be easily over-looked. In regards to the sewer, the respondents contend that the cause of the problem is a faulty sewer joint identified by the applicants' plumber.

The Part 2A application

Section 14 of the Trees Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent a severe obstruction of sunlight to a window of a dwelling and or a severe obstruction of a view from a dwelling, if the obstruction occurs as a consequence of trees to which Part 2A applies, being situated on adjoining land.
Section 14A(1) states that Part 2A applies to groups of two or more trees that are planted so as to form a hedge and which rise to a height of at least 2.5m.
The trees in question are growing along the northern boundary of the respondents' property on the northern side of their tennis court and close to the dividing fence between the parties' properties. The tennis court is also bounded by hedges on the eastern and western side. The applicants' property is to the north of the trees in question.
With the horticultural and arboricultural expertise I bring to the Court, I am satisfied that given the species, close spacing, linear arrangement and evidence of past pruning, the trees in question are trees to which Part 2A applies. According to the applicants, the trees were planted in about 1985 by a former owner of the respondents' property. The respondents purchased their property in 2011.
Section 14E(2) 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.
In determining severity of the obstruction and the balancing of the parties' interests, the Court often has regard to the matters in s 14F of the Trees Act.

Sunlight

The applicants contend that the trees severely obstruct sunlight to seven nominated windows on the southern elevation of their dwelling. Window 1 (W1) is a clear ensuite bathroom window; W2 is a large, clear bathroom window; W3 is an opaque toilet window; W4 is a laundry window; W5 is the window of the study; W6 is a window of a secondary bedroom; and W 7 is a window of a former bedroom now used as a workroom/ exercise room.
In their application claim form, the applicants state that the trees have resulted in "50% loss of solar light and brightness" for all of the windows on this side of their dwelling.
On the evidence, I am not satisfied that the respondents' trees have caused the alleged severe obstruction of sunlight. In Drewett v Best [2010] NSWLEC 1305 at paragraph [17], the Court accepted that the word 'sunlight' is to be understood as 'direct sunlight' rather than just daylight. The windows in question face just slightly to the east of south; given this orientation any direct sunlight reaching the nominated windows would be restricted to very brief periods on summer mornings. The principal cause of loss of sunlight is due to the southerly orientation of these windows and therefore this element of the application is dismissed. I note that the principal living areas of the applicants' property are located on the northern side of their dwelling where there is likely to be ample sunlight.

Views

The applicants contend that the respondents' trees severely block views of the sky from five of the nominated windows (W2, W4, W5, W6 and W7), and an oblique view of another tennis court to the south west.
Even if I were to find that the respondents' trees are severely obstructing views of the sky from those nominated positions, I would not make any orders for any intervention with the trees on that basis for the following reasons.
I accept the respondents' position that the trees afford them privacy. It is possible to see through parts of the trees to the respondents' tennis court and across to their dwelling from all of the nominated viewing points. Removing the trees would compromise this privacy as the direct views from these windows are of the respondents' property. Pruning the trees to a height that would open the view of the sky from those windows, would in my opinion, remove an excessive amount of foliage which would compromise the health of the trees. I also accept the respondents' proposition that the trees contribute to the stability of the retained embankment in which they are growing. In regards to the oblique view to the south west from W7, the view would be of someone else's tennis court and the associated dwelling. It might be possible to see through to native trees in a nearby bushland reserve along a creek.
In regards to the qualitative nature of the desired view, the Court often considers the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The first step in the planning principle is to assess the nature of the views affected. Paragraph [26] states in part: ….Water views are valued more highly than land views. Iconic views (e.g. 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 views, e.g. a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.
The other steps consider the use of the rooms from which the views are seen and whether they are across rear, front or side boundaries. Views from living areas are valued more highly than views from bedrooms or utility areas. In [28] the Court stated that the extent of the impact should be considered for the whole of the property not just the view that is affected.
As stated above, the applicants' main living areas are located on the northern side of the dwelling; views of the sky and of other adjoining properties are available from these living areas.
On balance, no orders of the Court will be made for any interference with the trees on the basis of views and this element of the application is also dismissed. It was noted on site and in the parties' evidence that the Hills Shire Council permits the reduction by up to 10% of the overall canopy of a tree, including overhanging branches, without a permit from the council and without the permission of the tree owner - as long as the pruning is carried out in accordance with AS4373:2007 Pruning of Amenity Trees and by an AQF level 3 arborist. Therefore the applicants have the opportunity to provide some relief should they wish to do so.

The Part 2 application

The key jurisdictional test to be applied in applications pursuant to s 7 Part 2 of the Trees Act 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 could in the near future cause, damage to the applicant's property, or (b) is likely to cause injury to any person.
This is to be applied to all trees the subject of an application. In this matter the original application claim form does not press injury, however in the supplementary material provided by the applicants' in regards to their claim raises the risk of people falling over as a consequence of slippery moss that has grown beneath the trees instead of lawn.
Dealing firstly with the risk of injury, any damage or injury has to be a direct consequence of the tree and not some other incidental factor (see Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at paragraphs [176] to [189]). Therefore, while the applicants contend that the moss is a consequence of the shade cast by the trees, moss is not something to which the Trees Act applies. In any event, as the applicants have not sought leave to amend their application, the Court's focus must be on the issues raised in the initial application claim form.
While the applicants have similarly added a number of concerns about the damage the trees may cause, the focus must be on the matters raised in the application claim form which are: actual and potential future damage to the sewer pipes; potential structural damage to the dwelling; and impact on soil stability and the dwelling as a consequence of the trees drawing moisture from the soil leading to shrinkage.

The sewer

According to oral evidence given on site, the applicants' sewer traverses parts of their southern and western boundaries. The Sydney Water sewer main traverses the western boundary; there is an inspection pit on the north-western corner of the respondents' property close to the south-western corner of the applicants' property.
The applicants stated that in December 2014 there was a blockage of the sewer main near the point at which the applicants' southern sewer line joins the main. In January 2015 the applicants' sewer was blocked in the vicinity of a toilet located towards the centre of the southern façade [W3]. On 27 January 2015, a plumber attended the property and cleared roots from the external inspection point in the PVC pipe adjoining the toilet, used water blasting to clear the pipes and inspected the pipes with CCTV. The respondents were invited onto the applicants' property on 30 January 2015 in order to discuss the problem and view the results of the inspection. On 5 September 2015, a maintenance crew from Sydney Water attended the site and unblocked the main from the inspection pit on the respondents' property. The report (exhibit C) notes the cause of the blockage as 'roots'.
Photographs in the application claim form show a number of smallish secondary woody roots growing around the inspection point and in the vicinity of the applicants' sewer pipe. Another photograph shows a mass of fibrous roots partially pulled out of the inspection point; the roots are growing away from the toilet in a downstream direction. Another photograph shows fibrous roots elsewhere in the system.
In April 2015, the applicants obtained a quote from one plumber which states: QUOTE. Remove the toilet pan on the defective sewer line. If pan breaks when removed we will supply a new one no charge. Use jet blaster with root cutter to remove all tree roots inside PVC toilet junction. Insert junction reline into the defective junction using the removed toilet as access to inflate the arm. 25 years warranty. Refit existing pan siliconing to floor replacing pan collar if required. Backfill outside. $3850+GST.
The applicants obtained another quote from another plumber for the following: To dig down about 1m2 to remove soil from under house to replace sewer pipe under concrete. Replace about 2m of pipe with new pvc pipes under concrete to main line. Cut all roots in way. Backfill with approved metal. Backfill and compact. Test and commission. Clean up. $5800+ GST
During the on-site hearing, the roots shown in the photographs were observed as were other roots growing onto the applicants' property from the trees in question. I was informed that apart from the blockages of the Sydney Water main, the only part of the applicants' sewer to have been blocked is the toilet on the southern side of the dwelling. However, in relying on the material researched from the internet in regards to the species of tree, the applicants are concerned that future damage is inevitable.
I am satisfied on the evidence before me that roots from one or more of the respondents' trees have caused the damage to the applicants' sewer in the vicinity of the toilet. Therefore, as one of the tests in s 10(2) is met, the Court's powers under s 9 to consider what, if any, orders should be made, are engaged. However, in doing so, I must consider relevant matters in s 12 of the Act. In this case, s 12(h) is most relevant.
The respondents contend that the cause of the blockage is a defective junction in the PVC piping. In their view, if the junction wasn't defective, roots would not have been able to enter the pipe. They consider that the house and the pipes are at least 25 years old and may need replacing.
The applicants place considerable reliance on their research into the species including a matter heard by the Strata Schemes Board of NSW in 1999 - Owners SP10923 v Wylo Holdings Pty. Ltd [1999] NSWSSB 14 in which the applicants were ordered to obtain council consent to remove nine Leyland Cypress. The applicants in this case rely on the expert opinion expressed in the SSB matter by a number of horticulturalists and arborists in regards to the vigorous nature of the root systems of Leyland Cypress.
Apart from this judgment, the applicants in both their original claim form and supplementary material have provided a considerable number of Development Control Plans and policies from a number of local councils, printouts of newspaper articles and other material to support their view that the Leyland Cypress is an undesirable species in urban areas and has a "voracious" root system that may cause future damage to their property..
I do not propose to place any determinative weight on this material. None of the material is from peer reviewed journals or similar sources. One textbook extract provides general information about tree roots and includes a summary of some 1981 research and observations made in regards to the interactions between clays in south-east England and a range of tree species including Leyland Cypress. This citation in itself is insufficient to form the basis of Court orders. In reading the judgment in the NSWSSB matter, I note that this predates the introduction of the Trees Act and the judgment is unclear as to whether the experts provided any supporting evidence to substantiate their opinions.
With respect to the damaged section of pipe, while I accept the respondents' submission that the defective joint enabled the ingress of roots, the counter position is that absent the trees, no blockage may have occurred.
The applicants are concerned about future damage to their dwelling and pipes. In the guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. Apart from the downloaded material, no actual evidence was adduced as to the likely and imminent threat posed to the structural integrity of the applicants' dwelling as a consequence of the respondents' trees. While the applicants have exposed some smaller woody roots on their property, no further submissions were made as to the likely damage they may cause. Similarly no site specific evidence was provided as to the reactivity of the soil on site or any evidence of any detrimental impact on soil reactivity and the structure of the house as a consequence of the trees. As discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62] by Craig J "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…".

Conclusions and orders

Having considered the evidence before me, I am not satisfied on the evidence of a few roots growing on the applicants' land that either the removal of the trees or the installation of a root barrier is warranted. I am satisfied however, that the respondents should make a contribution to the clearing of the sewer and to the rectification of the defective joint. The evidence indicates that the defective joint enabled the ingress of the roots. However, as stated above, the roots are from the respondents' trees and absent these roots a blockage would be unlikely.
If the circumstances change and should they wish to, as discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh or future application can be made. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.
On the evidence before me, the Orders of the Court are: 1. The application under s 14B Part 2A is dismissed. 2. The application pursuant to s 7 Part 2 is upheld in part. 3. Within 30 days of the date of these orders, the respondents are to reimburse the applicants the sum of $206.25 being 50% of the invoice dated 02/02/2015 for clearing the sewer. 4. Within 40 days of the date of these orders the applicants are to obtain at least another quote for either the relining or the replacement of the defective joint beneath the toilet on the southern side of their property. Within this same period the respondents may obtain at least two quotes for the same work. 5. Within 45 days of the date of these orders the parties are to exchange quotes and agree on the nominated contractor. If no agreement is reached either the cheapest quote or that with the best terms (such as a lengthy warranty) is to be accepted. 6. The applicants are to provide all reasonable access on reasonable notice to the respondents' plumbers for the purpose of quoting. 7. The work in order (4) is to be completed within 90 days of the date of these orders otherwise order (8) lapses. 8. The respondents are to reimburse the applicants 50% of the agreed cost of the work in order (4) within 21 days of the receipt of a tax invoice for the completed work. 9. The exhibits, except exhibit A are returned.

Judy Fakes Commissioner of the Court 20432 of 2015 (78.8 KB, pdf)

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: 15 September 2015

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