McMahon v Slack-Smith

Land and Environment Court (NSW)|2022-08-18

Judgment

COMMISSIONER: Mr McMahon, the applicant, who occupied his Banora Point property in 2014, submitted an application, pursuant to s 7 of Pt 2, and s 14B of Pt 2A of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act).
The applicant shares a common rear property boundary with the respondents', Mr and Mrs Slack-Smith. The applicant's property is located at a higher elevation than the respondents' land.
When the respondents occupied their property in 2017, long established trees were growing within a garden bed at the rear of their back yard, close to the base of the applicant's retaining wall, which runs along the rear of his land, just inside the common boundary. The boundary runs north - south and is delineated by a timber paling fence above the retaining wall.
The application under Pt 2 of the Trees Act relates to alleged damage to the retaining wall and fence resulting from roots of some of the respondents' trees. Mr McMahon seeks orders to: 1. Repair damage to the retaining wall and fence. 2. Remove T1 and T2, or alternatively roots to be removed and root barrier to be installed. 3. T3 root barrier to be installed.
Banora Point is close to Tweed Heads on the far north coast and the applicant's property overlooks the respondents' house and rear yard to his east.
Under Pt 2A of the Trees Act, Mr McMahon claims that six of the respondents' trees form a hedge which severely obstructs views across the east facing arc, which includes ocean, river, and landscape. The applicant seeks orders for: 1. The high hedges to be pruned to the height of the (respondents') second storey eaves annually.

Jurisdictional requirements - Part 2

With respect to s 7 of the Trees Act, 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 the Trees Act applies that is situated on adjoining land.
The Court is obliged to consider a number of matters pursuant to s 10 of the Trees Act.
Mr McMahon provided evidence of correspondence between the parties since 2019, and with the applicant's solicitor, thus satisfying s 10(1) of the Trees Act, as this constitutes a reasonable effort by the applicant to reach agreement with the owner of the land on which the tree is situated.
The next major test that is posed, by s 10(2) of the Trees Act, is that the Court must be 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.
Should s 10(2) of the Trees Act be satisfied, the Court is required to consider the discretionary matters in s 12 of the Trees Act, so as to provide balancing of the trees' attributes and benefits, against the imperatives informing intervention.
The applicant claims that upon his occupation in 2014, his back fence was "in line", but over the next few years tree roots damaged his retaining wall. Mr McMahon advised the Slack-Smith's of said damage at a 2017 property inspection, but prior to settlement, the then owner of the respondents' property (previous owner) repaired the retaining wall, and this was noted in the respondents' contract of sale.
The respondents submit that the retaining wall "is still in very good order" while the applicant says additional damage has occurred and he seeks remedy for this alleged damage.
It was unclear if the retaining wall was based on a concrete foundation. Rather, its base appeared to be constructed from concrete blocks laid onto the ground surface. Near T1, two or three blocks on the base layer are protruding forward into the respondents' property, with surface roots from T1 adjacent. The respondents claim this damage is the result of erosion of soil from behind the wall in conjunction with excess water flowing off the applicant's land, while the applicant blames the roots.
Roots growing from the base of T2 are exerting pressure on the base of the retaining wall, but this appears to be the main area of root removal and retaining wall repair from 2017, which was clearly evident, and is still intact. One slightly wobbly fence post near these roots appears related to the use of insufficient concrete with the 2017 repairs rather than additional root damage, as evidenced by all mortar joints nearby remaining intact.
Some roots near the base of T3 appear to be pressing hard up against bricks, but I detected no sign of cracking or misalignment. Along the remainder of the wall, I found no further damage, other than that appropriately repaired by the previous owner.
Considering the cause of damage near T1, I am satisfied that both roots from T1 and soil erosion from runoff are causing retaining wall damage to at least two concrete blocks. Roots from an adjacent Schefflera actinophylla (Umbrella tree) may also be a cause. I am also satisfied that roots from T2, though not currently causing damage, are likely to cause wall damage in the near future. In Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year.
Though this damage appears minor, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 (Granger) indicates that even relatively minor damage engages the Court's jurisdiction. Therefore, as a consequence, s 10(2)(a) of the Trees Act is engaged.
Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2), but it can be relevant in determining what orders, if any, should be made.
The applicant also provided a photo with a string line showing the fence raised near the middle of the block by about 40mm, and he submitted that the fence was level upon his occupation. The respondents claimed that the applicant's land is not level which causes fence height variability, and that the fence only required repair of a loose top plate.

Discretionary matters - s 12

In making an order, the Court considers relevant matters in s 12 of the Trees Act.

The trees are located in the respondents' property close to the boundary (s 12(a)).
In considering s 12(b), T1 and T2 may be protected under Tweed Shire Council Development Control Plan 2008 (DCP) if their trunk diameter at breast height (DBH) exceed 800mm.
With respect to pruning in s 12(b2), both T1 and T2 have been lopped very poorly in the past. Photographs (photos) from 2015 show where branches of T1 encroaching on the applicant's newly installed pool were pruned quite appropriately. At this time, T1 appeared to be a healthy, large tree with a natural form. In 2019, T1 was lopped down to its main trunks and branches at a height of about 6 metres (m) during works where the scope is contested by the parties. The applicant claims that removal was organised, while the respondents claim to have agreed to pruning, not removal. Regardless, the tree is now considerably altered from its former 'normal' form, with its canopy dominated by epicormic sucker growth.
T2 was also excessively pruned in 2019, and its 'normal' horizontal layered canopy form has also been extensively altered, with epicormic growth making the foliage cover much denser. One particularly large limb growing over the applicant's yard was removed, apparently based on the applicant's belief that he has the right to remove branches overhanging his property. Under the Trees Act, no such right exists. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson) at [56], discussing the issue of nuisance, Preston CJ states that "mere encroachment is insufficient to complete a cause of action."

Similarly, leaves, small sticks, flowers or fruit dropping onto neighbouring land, but not causing damage, will not lead to orders under the Trees Act. At [171] of Robson, his Honour notes that: 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.
In Barker v Kyriakides [2007] NSWLEC 292 (Barker), at [20], Moore C, Hussey C and Fakes AC, introduced a tree dispute principle to address the questions that commonly arise, particularly with respect to swimming pools, around reasonable ordinary maintenance and the interaction between residents and trees in an urban environment. This principle states: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required 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.
Where a tree long predates a swimming pool that is installed adjacent, this ordinary maintenance extends to include pool maintenance related to the tree.

The importance of the trees in providing privacy is stressed by the respondents, and conversely, the discomfort of exposure following the pruning of T1. The respondents also note the trees' role providing protection from the sun, and from noise, smoke and smells, and the trees' contribution to garden design, the local ecosystem and biodiversity (s 12(b3)(d)).
Given the slope of the land, the marked difference between the soil levels of the adjoining properties, and the extensive buttress roots on T3, I accept the respondents' submission that the trees are likely to be stabilising and strengthening the soil behind the retaining wall and assisting absorption of water runoff. As I am satisfied that runoff from the applicant's property is also a cause of wall damage near T1, roots in this area may also reduce localised erosion and slow runoff (s 12(g)).
Section 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant.
The age of T1 and T2 is not known but they are both established and mature and 50 years is not an unreasonable age estimate. They predate the applicant's pool and possibly also the retaining wall. In Black v Johnson (No 2) [2007] NSWLEC 513 (Black), the Court has published a tree dispute principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make.
The age and nature of the retaining wall, inadequacies in its construction, and allowance for reasonable wear and tear are also considered under s 12(i), and, like 'the tree was there first', may be a basis for apportioning the cost of carrying out orders between the parties.

Findings

The retaining wall appears fundamentally sound following brickwork repairs in 2017. The repairs completed by the previous owner appear to have been effective, and appropriate considering the nature and age of the retaining wall. Had the applicant been dissatisfied with this work following the property sale, the Trees Act allows for a previous owner to be joined in proceedings against a respondent.
As a consequence, the respondents shall only be liable for any marginal damage since their occupation after the 2017 repairs, with scope for repairs to be completed to a similar standard and appearance of the 2017 repairs.
Roots have caused wall damage near T1 and are likely in the near future to cause wall damage near T2. Roots from T3 growing hard against bricks also require investigation. Root pruning is required for rectification. While this is damaging for the trees, I anticipate a minor-moderate impact only, considering that the root pruning required is minor relative to the size and spread of the trees' root systems, and the trees apparent vigour. Root pruning is thus a viable and proportionate remedy to this minor damage, whereas tree removal would be a disproportionate response.
Similarly, root barriers as sought by the applicant would result in extensive root damage to the trees, leading to decline in their health and possible destabilisation. This would be a disproportionate response to remedy localised areas of minor damage.
Orders shall thus be made for the respondents to sever and remove roots from T1 and from the adjacent Umbrella tree around the area of the displaced concrete blocks. The concrete blocks shall be reinstated into the wall onto a concrete base, and tightly mortared so they provide strong support for the intact row of concrete blocks above.
The respondents may choose to fill the blocks with concrete prior to re-insertion into the wall to mitigate the flow of runoff, but this may incidentally lead to hydraulic pressure on the back of the wall.
Orders shall be made for the respondents to sever and remove roots from T2, where they contact and exert pressure on wall bricks. Minimal pruning is recommended to maintain tree health, but gaps between roots and bricks are needed to allow for future growth. Where larger roots need severing, it may be possible to cleanly chisel away the area of root contacting the wall, while retaining the majority of the root.
Similar root pruning may be needed around the base of T3 where roots contact the wall, and it is likely that regular wall inspections, and ongoing root pruning will be needed in future.
I am not satisfied that the fence has raised appreciably since the 2017 wall repairs, as all mortar joints in the masonry wall base remain intact, and the applicant submitted no substantive evidence to show it was level in 2017. Even if an area of the land is raised, at [166] of Robson, his Honour says, "…damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes Between Neighbours) Act 2006." Considering the age and condition of the fence, and allowing for normal wear and tear, I am not satisfied that the fence has suffered consequential damage. It remains entirely fit for purpose.
Lopping, as completed on both T1 and T2 in 2019, is specifically discouraged in the Australian Standard for Pruning of amenity trees (AS4373:2007). Particularly when such a large proportion of trees' foliage is removed, provided they have sufficient stored energy, trees normally respond with dense vertical epicormic growth as they try and re-establish functional equilibrium. Ironically, this has resulted in thicker than normal foliage cover. Over time, trees will re-establish a 'normal' growth habit, and this may be aided by judicious pruning by an AQF level 3 qualified arborist to thin out epicormic growth.

Jurisdictional requirements - Part 2A

Like Pt 2, the Court's jurisdiction under Pt 2A of the Trees Act is limited. The Court must consider a number of jurisdictional tests before any orders can be contemplated. The process is set out in Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [17] - [22].
From his rear veranda, where submissions were heard, Mr McMahon enjoys sweeping local and district views spanning a broad arc of about 150 degrees from north, north- east, through east, and around to the south, south-east. The view includes ocean, various river elements, undulating landforms, and extensive native and urban vegetation.
The applicant has nominated 6 trees which he claims form a hedge that is severely obstructing his view. These are the 3 trees from the Pt 2 application plus a Giant cane (T4), a Dypsis lutescens (Golden cane palm) (T5), and a second Dracaena marginata (T6).

Do the trees form a hedge?

The first test is s 14A(1) of the Trees Act, that is, are the trees a hedge for the purpose of the Act?
Section 14A(1) states: (1) This Part applies only to groups of two 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).
In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192 (Johnson), Preston CJ provides commentary in an unsuccessful 'hedge' appeal under the Trees Act, applicable to this situation. At [36]-[38], his honour, discussing the language of s 14A(1)(a) says; [36] The Johnsons submit that the Commissioner erred in concluding that a hedge cannot include a separate or distinctively individual tree within a group of trees. They submit that 'the appropriate question to be determined as to whether any group of trees is planted so as to form a hedge under s 14A is not age, size, form, appearance or the uniformity of remaining elements', as determined by the Commissioner 'but simply whether the two or more trees are sufficiently close and tall enough' (para 47 of the appellants' outline of submissions). They submit that, in this case, the Turpentine and palms were sufficiently close and tall enough to be a hedge. [37] I reject the Johnsons' submission as to the meaning of the adverb clause of purpose, 'so as to form a hedge', for three reasons. First, the Johnsons' submission fails to inquire as to the purpose of the planting of the trees at the time of planting. The earlier grammatical analysis establishes that s 14A(1)(a) requires that the trees that are the subject of the application under s 14B of the Trees Act be 'trees that are planted ... so as to form a hedge'. As I have explained earlier, this requires that the trees, at the time of planting, be planted so as to form a hedge and, having been so planted, the trees continue that state of affairs of being planted so as form a hedge. The requirement of being planted so as to form a hedge is to be understood as requiring that the trees be planted in order to form, or with the result or purpose of forming, a hedge. [38] "If trees are not planted at all, but rather are self-sown, or are not planted for the purpose of forming a hedge, but rather for some other purpose, then Part 2A will not apply to the trees. In either of these circumstances, it will not matter whether the trees, as events have happened, have in fact grown so as to form a hedge. Part 2A will not apply to the trees.
This is the situation here. The Liquidambar (T1) and the Poinciana (T2) were planted many decades ago. Addressing the Pt 2 application, I estimated their age as about 50 years. A photo on page four of the 'Respondents' Evidence', dated 2 August 2022, advertising the sale of the applicant's property in 2004, shows both trees protruding with mature canopy form.
The other four nominated trees were planted decades later. In his application, Mr McMahon submitted that both Dracaena's (T3 and T6) and the Golden Cane Palms (T5) were about 2.5m tall when he occupied his property in 2014. As they are now two to three times that size, it is reasonable to infer that they were planted within the decade prior to 2014, and this is consistent with their appearance.
The applicant's photo 6 from 2016 shows a vacant gap of about 5m between the trunk of T1 and T3, and this is where T4 was planted in mid-2019.
Therefore, T1 and T2 were planted in the respondents' back yard about 50 years ago, spaced well apart, probably to provide room for their canopy development. There is nothing about the trees or this scenario that makes it likely that this planting was "so as to form a hedge". Hedges normally include groups of similar trees planted relatively close together.
To the contrary, this situation has all the characteristics of the planting of two separate amenity trees, as evidenced by their distinct dissimilarity in foliage and form, and the considerable distance between them.
At [43] of Johnson, his Honour says: [43] Thirdly, the Johnsons' submission fails to address the fundamental factual finding of the Commissioner, which prevented the Turpentine from being able to be described as being planted so as to form a hedge. The Commissioner found that the Turpentine was perhaps 60 or even 70 years old, while the palms were perhaps 15 or 20 years old. As a consequence, the Turpentine, even if it were to have been planted, was planted some 45 to 55 years before the palms were planted and hence could not have been planted so as to form a hedge with the palms (paras 28 and 30). If the Turpentine cannot be said to be planted so as to form a hedge, it does not satisfy the requirement in s 14A(1)(a) of the Trees Act. It cannot later acquire the status of being planted so as to form a hedge by the palms being planted to form a hedge in proximity to the Turpentine.
Though T3-T6 have been planted in the respondents' back garden in recent decades and have melded into a screen amongst the larger T1 and T2, this alone does not satisfy the requirements of s 14A(1)(a). Adapting the final sentence in [43] of Johnson to relate to these trees, T1 and T2 "cannot later acquire the status of being planted so as to form a hedge by the palms (T3-T6) being planted to form a hedge in proximity" to T1 and T2. As a result, T1 and T2 cannot be a hedge with T3-T6, and T3-T6 do not, of themselves, form a hedge.
As a consequence, I am not satisfied that the trees were planted so as to form a hedge. Therefore, s 14A(1)(a) of the Trees Act is not satisfied, thus I have no jurisdiction to make orders, and, as a consequence, the application is refused.
Even if s 14A(1) of the Trees Act had been satisfied, a subsequent requirement of the jurisdiction is to assess the severity of the obstruction of all or any of the views from the applicants' dwelling as a consequence of any or all of the trees in the hedges.
Section 14E(2)(a)(ii) states: (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned … (ii) are severely obstructing a view from a dwelling situated on the applicant's land.
The applicant's residence is upslope of that of the respondents. The applicant's nominated viewing points are the east-facing windows (V1 - V3) and an adjacent rear veranda (V4 - V6), and in contention are the water and landscape views across an arc of about 150% from the north, north-east, through east, to south, south-east. During the hearing the applicant also noted various viewing points in the back yard from which the view was obstructed, but there is no jurisdiction under the Trees Act covering obstruction of views from yards, only from a dwelling.
A veranda adjoining a living area is considered part of a dwelling for the purposes of the Trees Act, and this was the main location for view analysis.
Mr McMahon submitted that the foliage of T1 and T2 was very dense and encroached into his property. He claimed that T5 and T6 have grown significantly since his occupation and now obstruct a bridge that he previously saw in his south-east view, and that from inside his kitchen and informal living area, views to the north-east and east are obstructed by T4, which was planted in 2019.
The respondents submitted that all trees except T4 were already in situ when they occupied in 2017, and that the applicant's view has improved rather than worsened since that time. They claim that the 2019 pruning of T1 and T2 drastically improved the applicant's view and oversight of their property, and they responded by planting T4. They also submitted that T3, T5 and T6 have not grown as much as the applicant claims, since 2014.
The respondents also note that the main visual obstruction for the applicant's views is their roof, and that regardless of heavy pruning, this would remain the primary obstruction. They stress that the applicant retains excellent views to the north-east and to the south-east. Further, the Slack-Smith's highlight the benefits of the trees; privacy foremost, plus the Poinciana providing shade in summer and light in winter, and the presence of birds.
It is clear from photos that T1 was a tall Liquidambar, said to be 30m, with a typical dense canopy that was reduced to about 6m tall in 2019. It has regrown to about 11m. This has provided vastly improved north-east views for the applicant.
Mr McMahon claims that T2 in now about 10m tall and was 4-5m when he occupied his property in 2014, but that is contradicted by photographic evidence from the prior sale of the applicant's property in 2004, where the distinctive, typical layered mature form of the large Poinciana (T2) is evident between dwellings. The respondents provided a photo of T2 upon their occupation in 2017 with its untouched natural form, clearly much taller than claimed by the applicant. Had T2 been pruned heavily before 2014 such that it was only about 4-5m tall upon the applicant's occupation, it would have still looked disfigured, as it does now, upon the respondents' occupation.
It is clear that the stress induced epicormic growth on T1 and T2 has resulted in much more dense foliage facing the applicant, but that was as a result of poor and excessive pruning. Regardless, the range of nominated viewing spots spanning the main living areas and adjacent deck provided for extensive water landscape and urban views, other than in front, where the respondents' roof formed the primary obstruction.
The additional views that could be provided by pruning the trees are thus quite marginal; just a bit more of what the applicant already has, and at significant cost to the respondents. The examples of specific views lost that the applicant submitted were relatively small features such as the distant bridge.
The Court's interpretation of the words 'a view' is discussed at length in Haindl v Daisch [2011] NSWLEC 1145 (Haindl). At par [26], Moore SC and Hewett AC state: "However, we are of the opinion that the words a view used in s 14 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."
At [28] of Haindl, the Commissioner's say; For the purposes of Part 2A of the Trees Act, this is a single view with various elements contained within it, including the trees themselves, not multiple views requiring separate analysis. To proceed on some contrary basis, in our opinion, it would be to be undertaking an analysis otherwise than in accord with the statute that founds our jurisdiction.
As in Haindl, the views in contention in this case form only a small part of overall views available to the applicant, and those that may have been obstructed are not dissimilar to those that he retains. Therefore, I was not satisfied that the obstruction of the view from the applicant's nominated locations was severe, rather it is minor to moderate. As a result, s 14E(2)(a)(ii) of the Trees Act would also not be engaged.
Finally, the applicant claimed that T1 and T2 are likely to increasingly block his views in the future, but the word 'rise' (in 14A(1)(b)) is in the present tense and does not envisage a future height. This is discussed at length in Wisdom v Payn [2011] NSWLEC 1012 at pars [53] to [59].

Orders

As a consequence of the foregoing, the application in relation to Pt 2 under s 7 of the Trees Act is granted, in part. The application in relation to Pt 2A under s 14B of the Trees Act is refused.
The orders of the Court are: 1. The respondents, at their expense, shall carefully remove the two or three displaced retaining wall concrete blocks near T1, and cleanly sever and remove roots from T1 and from the adjacent Umbrella tree from the area now absent of concrete blocks, and in close proximity. 2. The respondents, at their expense, shall carefully reinstate the concrete blocks into the wall onto a concrete base, and tightly mortar them into position. 3. The respondents, at their expense, shall cleanly sever and remove roots from T2 and T3, where they contact and exert pressure on wall bricks. This shall be completed with a sharp hand saw, and a sharp chisel and mallet where appropriate. A gap between roots and bricks of at least one centimetre shall be provided to allow for root growth between inspections. 4. The respondents, at their expense, shall inspect the retaining wall twice each year, and prune roots that may be near the retaining wall according to the procedures of Order 3.

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: 17 November 2022

(2012) 190 LGERA 334

At a glance

Court

Decision date

Source

Judgment (9 paragraphs)

Parties

Cases Cited (11)