Moore v Tebbutt

Category: Principal judgment

Parties: Michael Moore (First Applicant)
Jane Moore (Second Applicant)
Richard Tebbutt (First Respondent)
Johanean Tebbutt (Second Respondent)

Representation: Counsel:
M Moore (Self-represented) (First Applicant)
J Moore (Self-represented) (Second Applicant)
Richard Tebbutt (Self-represented and Agent) (First and Second Respondents)

File Number(s): 2024/430024

Publication restriction: Nil

Judgment

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

Background

1. COMMISSIONER**:** Johanean and Richard Tebbutt have lilly pilly hedges growing on their Collaroy Plateau property next to the common boundary they share with their neighbours, Jane and Michael Moore. These neighbours share also a driveway, for access to their respective garages, and an acrimonious relationship. The Moores have block walls on their land along sections of the common boundary and say the trees are damaging the walls. The Moores have applied to the Court seeking orders for the Tebbutts to remove all branches of the lilly pillies that grow beyond the boundary and overhang their property, to implement a regular maintenance schedule, and to take responsibility for the trees’ ongoing management. The Tebbutts maintain their side and the tops of the lilly pilly hedges, and argue that the Moores are able to prune their side as they wish.

2. The final hearing took place onsite, allowing the Court to inspect the trees and the Moores’ property. The Moores were self-represented; Mr Tebbutt represented both himself and Ms Tebbutt. I rely on my own arboricultural expertise and experience in making this decision.

Framework for this decision

3. The Moores have applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The orders they seek are orders the Court can make at s 9 of the Trees Act if relevant jurisdictional requirements are met, including those at s 10(2).

4. Relevant issues to be determined in these proceedings are:

5. Have the Moores made a reasonable effort to reach agreement with the Tebbutts and given the required notice of the application: s 10(1)(a) of the Trees Act?

6. Can the Court be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the Moores’ property, or are likely to cause injury to any person: s 10(2)?

7. If so, how should consideration of the relevant matters at s 12 of the Trees Act influence any orders to be made?

Reasonable effort to reach agreement

5. The Moores and Tebbutts have attended mediation at the Community Justice Centres to resolve issues including their shared use of a driveway and maintenance of trees. The parties each have strong views on the issues in contention, and the nature of their relationship does not allow for reasonable negotiation, so any further discussion between the parties would be unlikely to result in the outcome that the Moores want. I am satisfied that the Moores have made a reasonable effort to reach agreement with the Tebbutts and that the timeframe set down by the Court has allowed for the required notice of the application.

The trees

6. The lilly pillies along the common boundary are in three sections. Trees in the upper, or western, section are approximately 3 metres tall. They were present when the Moores built the wall next to the boundary. The trees grow above the wall, with branches extending across the boundary and above the Moores’ property including a set of stairs leading up to their higher front garden, and towards the southern wall of their dwelling. These trees are now mature and appear healthy.

7. Further to the east a more recent planting of lilly pillies is around 1.5 metres tall with only very small branches growing across the common boundary. And further east again is another hedge approximately 1.5 metres tall. Along eastern part of the boundary the Moores have a solid, clear pool fence.

Damage or injury

The applicants’ position

8. The Moores’ complaints about the lilly pillies can be grouped into three issues: nuisance, damage and injury.

9. The Moores explained that they see no reason why they should have to maintain their side of the Tebbutts’ hedges. The Tebbutts maintain their side and the tops of the hedges, but branches grow across the boundary. The Moores feel it is unfair for them to bear the burden of maintaining their side of their neighbours’ trees. They pointed out that branches of trees in the western section of hedge would not grow across the boundary if the trees were maintained at the height of their wall, rather than a metre or so taller. They see no reason for the trees to be taller than the wall.

10. The Moores claim that trees in the western section of the hedge damage their property by causing discoloration of their wall. The top and northern face of the wall are rendered and painted white or cream. The trees’ branches and foliage extend over the wall, close to, and contacting, its top. The top of the wall is a mottled dark grey. The Moores say the discoloration leeches down the wall’s northern face. They are able to clean their side of the wall, but they say the top of the wall does not come clean even if they use a pressure washer. They have had the wall repainted once due to the discoloration. The Moores are also concerned that the small branches extending toward the white wall of their house will eventually scratch that wall. These same branches also shade the steps between the wall and the Moores’ dwelling, causing mould to grow, especially in winter when no direct sunlight falls there. Although trees in the lower two sections of the hedge have not yet caused damage, the Moores are concerned that they will cause similar issues including scratching or discoloration of their pool fence.

11. The Moores say that pruning the trees on their side requires them to stand atop their boundary wall. This is dangerous and likely to result in injury. They say that the mould that develops on their stairs as a result of the trees makes the stairs slippery and dangerous, creating a further risk of injury.

The respondents’ position

12. The Tebbutts say that the Moores have a right to prune any branches growing across the common boundary, and that this task is not too onerous. If the task is dangerous, contractors could be engaged to prune the trees. The Tebbutts want trees in the western section to be taller than the Moores’ wall for privacy reasons. They say that discoloration of the upper surface of the Moores’ boundary wall could hardly be considered as ‘damage’, or at least does not amount to damage of any significance. Mr Tebbutt referred to the mediation session that the parties attended some years ago, where they tried to negotiate issues including use of the driveway and maintenance of trees. Mr Tebbutt agreed at the mediation to cut trees in the western section down to fence height, but not to maintain them at that height. He later offered instead to regularly maintain the trees by pruning them back to the boundary, but the Moores did not take up this offer.

Findings

13. A hedge planted by a landowner near their boundary might also be enjoyed by their neighbour, or it might not. Unless the hedge owner leaves sufficient room between the hedge and the boundary to prune it entirely from within their property, or reaches some agreement for accessing their neighbour’s property, the burden of pruning the face of the hedge along the boundary (the part of the hedge that its owner does not see) falls to the neighbour. And this can be an onerous task. No law requires the hedge owner to prevent the hedge’s branches growing across the boundary. Generally, a neighbour can exercise their common law right of abatement to prune branches back to the boundary, subject to the consent required by any Act including the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977.

14. In some proceedings under the Trees Act, where the Court has made orders for landowners to prune hedges, for example to remedy or prevent a view obstruction, the Court has extended those orders to include a requirement that the hedge’s owner also maintains the face of the hedge along the boundary: see Davidson v Bower [2024] NSWLEC 1463 and Lock v Sidoti [2024] NSWLEC 1345. In those cases, the Court found that the circumstances met the tests that allow the Court to make orders, and saw reasons to order maintenance of a hedge’s face along a boundary. The Trees Act does not empower the Court to make orders only on the basis of nuisance caused by overhanging branches or the burden of maintaining them.

15. Trees in the western section of the Tebbutts’ hedge have caused discoloration to the top surface of the Moores’ boundary wall. Taking their case at its highest, the Court accepts that this might be considered as ‘damage’ to their property, as the paint on that surface is no longer the colour it once was. The discoloration appears to result from some sooty mould falling from the trees’ foliage and the growth of mould on top of the wall where it is shaded and dampness lingers. The damage is minor – it does not affect the wall itself and can only be seen from limited locations, for instance when standing next to the wall. Maintenance could prevent the mould, and in these or similar circumstance such property maintenance is a reasonable expectation: see Hendry v Olsson [2010] NSWLEC 1302 at [12]–[14]. Cleaning the top of the wall might require the removal of some of the foliage immediately above the wall. That foliage is on the Moores’ side of the boundary and they can prune it as needed. For these reasons, the minor damage caused by the trees does not warrant Court orders. The growth of mould on the Moores’ outdoor steps can also be prevented by maintenance and does not require orders from the Court.

16. Trees in the other sections of hedges to the east have not caused damage, nor are they likely to do so in the near future, being the next 12 months as per the principle in Yang v Scerri [2007] NSWLEC 592 at [14]. Therefore the Court cannot, at this point, make orders to prune those trees: s 10(2)(a) of the Trees Act.

17. The Court does not consider that injury caused to a person by falling while pruning trees equates to injury caused by those trees. Such an injury is caused by the person’s own actions, not by the trees. No orders can be made on this element of the application.

18. It follows that no part of the application gives the Court reason to make orders.

Orders

19. The Court orders:

20. The application is refused.

21. The exhibits are retained.

D Galwey

Acting Commissioner of the Court

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