Nolen & anor v Balodis & anor [2016] NSWLEC 1119 | Case summary

Nolen & anor v Balodis & anor [2016] NSWLEC 1119 | Case summary | Zoe

Part 2 Application

Section 7, Part 2 of the Act enables an owner (or occupier) of land to apply to the Court for an order to remedy restrain or prevent damage to property on an applicant's land or to prevent injury to any person, as a consequence of a tree to which the Act applies that is situated on adjoining land.
The trees are three mature Bookleaf Cypress; I note that the application claim form and accompanying letters state that there are seven or eight trees. The three trees were present when the respondents purchased their property in 2010. They are growing along the south-western boundary of their property close to the dividing fence between the parties' properties. The parties' semi-detached dwellings are part of a row of similar cottages. The applicants purchased their property in April 2013. According to the respondents' evidence (Exhibit 1), following a request from the applicants to prune the trees, in January/ February 2015 the respondents crown-lifted the trees by removing a number of lower and overhanging branches. It appears that this did not satisfy the applicants who then requested the trees be removed.
In their application claim form the applicants contend that debris falling from the overhanging branches constantly falls onto their property including onto the roof of the shed which houses the hot water service, the roof of the garden shed, and onto the concrete courtyard. They state that the hot water system has been damaged and, as a consequence of leaves blocking the drain in the courtyard, the rear of their dwelling was subject to flooding and damage. They also claim that the trees prevent sunlight to the courtyard which results in the growth of mould/moss which is slippery. Apart from the potential slipping hazard, Ms Ross, the second applicant claims that she injured her finger when she pruned an overhanging branch with scissors; it is also claimed that the leaves are sharp and needle like.
During the on-site hearing the applicants also stated that the branches were close to the roof of their dwelling and therefore could cause damage; they also indicated cracks in the concrete courtyard which they said could have been caused by the roots of the trees. As this issue was not raised in their application, thus preventing the respondents an opportunity to consider it, the issue was not pursued.
Fundamentally, the applicants object to any part of the trees overhanging their property. They also object to constantly cleaning up fallen debris, something they say they cannot rely on their tenants to do.
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.
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…".
In a 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. 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, any history of previous failures and the circumstances of the site apparent at the time of the hearing.
Neither party engaged an arborist to provide a written report or to attend the hearing however I note the respondents' uncontested statement that they consulted two arborists to inspect the trees and confirm their identification. In their evidence the respondents state that the arborists confirmed the trees are structurally sound with no evidence of root damage or risk of tree collapse. With the horticultural and arboricultural expertise I bring to the Court I observed the trees to be healthy specimens with no significant structural defects that would lead me to conclude that they posed an imminent risk to any person or any property, particularly property on the applicants' land.
During the on-site hearing I repeatedly asked the applicants to show me what actual damage had been caused by the trees. I was not shown any evidence of actual damage, including the contended damage to the hot water system and the alleged flood damage. There is no photographic evidence of any damage or any invoices for any works required to rectify the alleged damage in the claim form. The Court's standard direction #6 makes it clear that an applicant has the opportunity to file and serve any additional material, such as further statements, reports and so on, upon which they intend to rely at the hearing. The applicants did not avail themselves of this opportunity.
The application claim form does include photographs of accumulated leaf litter on the roof of the small shed which houses the hot water system, the roof of the garden shed and the courtyard. There is no indication of when these were taken but they may have been taken when a previous tenant occupied the property.
In regards to the flooding, the uncontested oral evidence of the respondents is that it occurred during and after an exceptionally heavy thunderstorm which also brought hail and which resulted in other localised flooding. As the applicants' tenants were not at home they were unable to take any action which may have prevented the ingress of water.
In regards to future damage as a consequence of the encroachment of branches onto the applicants' roof, the nearest tree is at least 400mm away. This is a slow growing species, a fact confirmed in writing by the Identification Botanist, National Herbarium of NSW, Royal Botanic Gardens, Sydney who identified the trees. While in its natural habitat in north-western China, in exceptional circumstances and in very old age, it may reach 30m it is highly unlikely to achieve anywhere near that dimension in a constrained courtyard in Summer Hill. In any event, I am not satisfied that the branches are likely, in the near future, to cause any damage to property on the applicants' land.
While I am not satisfied that any damage has occurred as a consequence of the leaves, or is likely in the near future to occur as a consequence of any other part of the trees, as a matter of discretion I would not make any order for any intervention with the trees on the basis of leaf litter.
In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 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.
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.
In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [11]-[14], the principle was extended to include the cleaning of mould and slime. 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.
With respect to the alleged injury, there is no evidence of it and it appears to have been self-inflicted and not directly caused by the tree.
Having heard the parties' submissions and viewed the trees and the applicants' property, I am not satisfied to the extent required by s 10(2) that any of the elements of it are met and therefore the application under s 7 Part 2 is dismissed.

[3]

Part 2A application

The applicants contend that the trees severely obstruct sunlight to, and views from, the laundry and bathroom windows on the south-eastern/ rear façade of their dwelling. They claim that the trees block sunlight to the laundry window for 5 hours and the bathroom for 8 hours per day. They also stress the all year shading of most of the usable backyard. The shading of the courtyard was pressed constantly during the hearing.
In applications made under s 14B Part 2A of the Trees Act, there are a number of jurisdictional tests which must be satisfied sequentially. The first of these is found in s 14A(1) which requires that this Part only applies to groups of two or more trees which are planted so as to form a hedge and which rise to a height of at least 2.5m. I am satisfied on the basis of spacing and species that these are trees to which Part 2A applies.
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.
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.
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.
Dealing first with the issue of sunlight, the wording of all relevant sections of Part 2A make it clear that the Act does not apply to the shading of anything other than windows of a dwelling; this includes gardens (see Clancy v Bell [2010] NSWLEC 1351 at [7] and [14]). Despite drawing the applicants' attention to this jurisdictional requirement, Ms Ross remained unconvinced and demanded nothing less than the removal of the trees.
In considering the obstruction of sunlight, the applicants did not provide any evidence such as shadow diagrams or photographs stamped with the time and date to demonstrate any overshadowing of the nominated windows by the trees.
I accept the trees are likely to obstruct some direct sunlight [I note that in Drewett v Best [2010] NSWLEC 1305 at [17] the Court accepted the word 'sunlight' to be 'direct sunlight' rather than simply daylight]. However, I cannot be satisfied on the evidence that the trees severely obstruct sunlight to these windows, however, if I am wrong in my finding in respect of s 14E(2)(a)(i), as a matter of discretion in considering the balancing of interests in s 14E(2)(b) I would not make any orders for any intervention with the trees on the basis of obstruction of sunlight. I note that the windows are on the south-eastern façade and would only receive limited early morning sun, plus they are both relatively small highlight windows with frosted glass. The windows are in rooms in which people spend little time as opposed to windows of living rooms.
I also note that the applicants contend that when they purchased their property in 2013, the trees were only 1.8m high [fence height] and have grown to what they say is 10m in that time. In their evidence, the respondents have included real estate photographs downloaded from the internet, one of which shows the rear courtyard as it appeared prior to the applicants' purchase. The photograph clearly shows the trees were at least 4m high (and probably close to their current height of probably 5-6m, however the top of the trees is not shown) when they purchased their property. Apart from showing the existing cracks in the concrete, the photograph shows that the foliage extended just below the top of the paling fence. Therefore the trees currently cannot obstruct more sunlight now than they did when the applicants purchased their property. If anything, the crown lifting carried out by the respondents has probably allowed some filtered sunlight and opened up more views than were available at the time of the applicants' purchase.
As discussed in McDougall v Philip [2011] NSWLEC 1280 at [20] - [25], the incorporation of Part 2A into the Trees Act did not create a right to light or views. That decision includes a discussion of the 2009 Review of the Act - see below [emphasis added]: 20 The applicant seeks orders that would substantially increase the view from her dwelling, and in effect, create a view that was not available to the applicant when she moved in. This, in my opinion, is not why the Act was amended in August 2010. The amendment gave the Land & Environment Court a strictly limited new jurisdiction to hear disputes about high hedges that severely block sunlight to a window of a dwelling or views from a dwelling. 21 Pursuant to s 34(2) of the Interpretation Act 1987, the Court is entitled to have regard to a limited range of extrinsic material that may assist in the determination of the meaning of a provision of an Act. In this matter I refer to the second reading speech on the introduction into parliament of the Trees (Disputes Between Neighbours) Amendment Bill 2010 as recorded in Hansard on 18 May 2010 [page 22821]. The relevant passages refer to the review of the Act in accordance with s 23 of the Act. The review received over 230 submissions from residents, community groups, professional associations, councils and Government agencies. The review found that the policy objectives of the Act remained valid. However, recommendations were made to improve the operation of the Act. The Government accepted all of the recommendations of the review. The aim of this bill is to implement recommendations arising out of the review. 22 Relevantly, the "Review of the Trees (Disputes Between Neighbours) Act 2006" undertaken by the NSW Department of Justice and Attorney General and published in November 2009, makes the following recommendation (Recommendation 9) in relation to high hedges that block sunlight or views. [This report has been on the Court's web site since the amended Act came into force…] a) That the Trees (Disputes Between Neighbours) Act 2006 be amended to allow the Land and Environment Court to hear and resolve disputes between neighbours about high, dense hedges which are causing a severe impact on views from, or solar access to, a dwelling. b) That this jurisdiction be strictly limited, with applications restricted to hedges which: are both high and give the effect of a solid barrier, and are causing severe impact for a dwelling, and have caused the impact to the applicant (not to the previous occupant), and are located between neighbours on adjoining land. c) That in determining the dispute, the Court balance the respective rights of neighbours to use and enjoy their land, having regard to privacy and other considerations, and the broader benefits of urban vegetation. d) That the new procedure be drafted so as not to create a right to light or views. e) That orders not be enforceable by the applicant's successors in title, and that they are only enforceable against the respondent's first successor in title. f) That hedges on land zoned 'rural-residential' be excluded from this jurisdiction. 23 The discussion relating to Recommendation 9 [page 35] states in part that: The Court would only have the power to hear matters regarding: ….cases where the applicant themselves has lost the light or view. It would not be appropriate, for example, for a person to purchase a property knowing there is a high hedge next door, and then be able to seek orders against their neighbours so as to gain additional solar access [or in this case a view] which had not existed at the time of the purchase. 24 The amended Act incorporates all of the recommendations made in the review.
Therefore, as I am not satisfied that s 14E(2) is established in the applicants' favour, this element of the Part 2A application is dismissed.
Turning to the contended obstruction of views from those windows, the Court usually has regard to the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140. The first three steps of this Principle are quite applicable to applications made under Part 2A. The first step considers the nature of the view, the second the location from which the view is seen, including views available from the whole of the property, and the third considers the use of the rooms from which the views may be affected. The Planning Principle includes a qualitative scale of impact ranging from negligible, to minor, moderate, severe to devastating.
In this case the view is of not of an iconic structure or water but of nearby suburban development including dwellings, residential flat buildings and associated vegetation. Similar views of other nearby development are available in other directions from the nominated windows. Given the height of the windows, the views would be from standing positions across a side boundary. The rooms are not living rooms or kitchens where people spend much of their time but are from a laundry and bathroom - and unless the window is open, through frosted glass.
Apart from the fact that the applicants did not have any clear view through those trees when they purchased their property, applying the process outlined in Tenacity leads to the conclusion that no orders should be made for any intervention with any of the trees on the basis of obstruction of views and certainly not the removal of the trees which were clearly present when the applicants purchased their property.

Nolen & anor v Balodis & anor

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