O'Connor v Kerr

O'Connor v Kerr - [2015] NSWLEC 1285 - NSWLEC 2015 case summary — Zoe

The Part 2 application

Section 7 of the Trees 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 the 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 applicant seeks orders for the removal of all trees, including the stump grinding of T3 and T9.
Before the Court's powers under s 9 to make any orders it thinks fit are engaged, a number of jurisdictional tests must be satisfied.
The key jurisdictional test in applications under Part 2 is found in s 10(2) of the Trees Act. 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.
Injury is not pressed.
In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Craig J at [62] states in part that the level of satisfaction required by s 10(2) requires …"something other than a theoretical possibility is required in order to engage the power under [the Trees Act]…".
The applicant contends that the respondent's trees (T1-T9) may cause the following damage: damage to the respondent's storm water pipes and thus potential drainage problems arising on the applicant's land as a consequence of water leaking from those pipes; root damage to the applicant's pool; root damage to a retaining wall beneath the fence near T3; and, damage to the dividing fence.
The applicant states that the trees have not as yet caused any damage to any property on his land.
During the hearing, the applicant pointed out a small portion of the metal dividing fence on the respondent's side where some paint had been removed. The applicant contends this has been caused by the movement in the wind of T3 and that should this continue it may require replacement of the fence.
As this 'damage' is on the respondent's side of the fence it can be argued that the Court has no jurisdiction to make any orders for any intervention with Tree 3. However, if I am wrong in this, the 'damage' is cosmetic in nature and is so minor as to not warrant an order of the Court. Similarly, as the stormwater pipes are on the respondent's land, this is beyond the scope of the Trees Act.
In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, the Court has applied a "rule of thumb" that the appropriate timeframe for "in the near future" is 12 months. In Robson v Leischke [2008] NSWLEC 152 at [200] Preston CJ states in part that "…injunction should not issue unless the impending damage (which is required to be substantial or almost irreparable) is imminent or likely to occur in the near future or, put another way, there is "a real, appreciable probability" of irreparable damage.."
The parties each engaged an arborist to prepare a report and to be present during the hearing. When asked the question whether the roots from the Pears were likely to cause any damage to the applicant's pool in the near future or next 12 months, both arborists answered 'no'. With the arboricultural expertise I bring to the Court, I concur with their opinion. The trees are newly-planted, juvenile specimens of between 2.0-2.6m tall. They are planted about 700mm or more away from the dividing fence. Given their age and stature, the trees are highly unlikely in the near future to cause any damage to either the dividing fence or anything, including the pool, on the applicant's property.
In regards to the retaining wall beneath T3, the wall is a brick wall in less than prime condition, and according to the respondent, the tree has been there for some time. The applicant was unable to provide any evidence of the imminence of any damage likely to be caused by the tree to the wall.
Tree 9 is one of several Murraya growing in a raised planter box along on the respondent's property along part of the common boundary. During the hearing, the applicant stated he was more concerned about obstruction of sunlight to his clothesline than any damage that may be caused by these trees. No damage to any property on the applicant's land, as a consequence of this tree, was observed or pressed.
As none of the tests under s 10(2) have been met for any of the trees, the Court's jurisdiction to make orders has not been engaged and the Part 2 application must be dismissed.

[4]

Part 2A application

Section 14B Part 2A enables an owner 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 situated on the applicant's land, or severe obstruction of a view from a dwelling situated on the applicant's land, if the obstruction occurs as a consequence of trees to which this Part applies. This application is confined to obstruction of sunlight.
The applicant seeks orders for the annual inspection and pruning of the Ornamental Pear trees to a height not exceeding 2.5m and a distance not less than 1m from the common boundary fence along the common boundary.
The applicant is concerned that the Ornamental Pears will attain a mature height of up to 15m which will eventually cast shadows on north and east facing windows on the ground and first floors of his dwelling.
In regards to T3, initially identified as a Camphor Laurel, he indicates in the claim form it may reach 30m. With respect to T9, the applicant states it is an existing hedge which throws a shadow directly on the washing line. Part 2A only applies to a severe obstruction of windows of a dwelling and not to gardens or clotheslines. Therefore the Murraya cannot be considered.
Before the Court's powers to consider if these or any other orders should be made, there are a number of jurisdictional tests that must be sequentially satisfied.
The first is whether the trees are trees to which Part 2A applies. Section 14A(1) states: (1) This Part applies only to groups of 2 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 2.5m (above existing ground level).
I am satisfied on the basis of the linear arrangement, spacing and species choice that trees 4-8 are planted so as to form a hedge. Thus s 14A(1)(a) is satisfied for these trees. Tree 3 is an individual tree, possibly self-sown, and much older than the surrounding pears and Part 2A does not apply to this tree (see Johnson v Angus [2012] NSWLEC 192 for a detailed analysis of s 14A(1)(a)).
Trees 4-8 were measured. Only trees 5 and 6 were at least 2.5m tall. Therefore, in this row, technically, only trees 5 and 6 are trees to which Part 2A applies. However, in Wisdom v Payn [2011] NSWLEC 1012 at [66]-[67] the Court determined that as long as two or more trees in the 'hedge' have reached the pre-requisite height of 2.5m, the entire 'hedge' is deemed to have satisfied the test in s 14A(1)(b). Trees 1 and 2 were not measured so the applicant is given the benefit of the doubt.
The next relevant test is found in s 14E(2) this 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. 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.
In the application claim form the applicant states that "at present no sunlight is lost as this hedge is not mature enough - this application is to prevent the obstruction of sunlight". This statement was confirmed on site.
Therefore as the trees to which the Part applies are not severely obstructing sunlight to any windows of the applicant's dwelling, the Part 2A application must be dismissed.
The applicant remained concerned about the future impacts of the trees on his property. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. 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. This has been considered in Part 2A applications - see Deville & anor v Frith & anor [2014] NSWLEC 1002.
As a consequence, the Orders of the Court are: 1. The application in its entirety is dismissed.

Judy Fakes Commissioner of the Court

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