Richards v Sharp

The hearing

1. Due to current COVID-19 restrictions, the hearing took place via telephone. Relying on the available evidence and submissions made during the hearing, I was able to make this decision without requiring a subsequent site view.

The applicant made reasonable effort

1. Mr Richards first raised the issue of overhanging branches with the Sharps in August 2020. Mr Richards has spoken with an arborist from Sutherland Shire Council ('Council'). He has found the process of reaching an outcome frustrating. Given the advice he has received, and the information available to him, I am satisfied he has made reasonable effort to reach some agreement with the Sharps.

The trees are not planted to form a hedge

1. Mr Richards' application includes three trees: a Port Jackson Fig (T1) growing between the Sharps' dwelling and the water of Port Hacking; a Tuckeroo (T2) growing partially between his dwelling and the Sharps' dwelling; and a Grevillea (T3) growing alongside the front part of his dwelling, nearer the road. The three trees grow close to the common boundary between the two properties.
2. The application of Part 2A of the Trees Act is limited at s 14A: 14A Application of Part (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 2.5 metres (above existing ground level). (2) …
3. In Johnson v Angus (2012) 190 LGERA 334; [2012] NSWLEC 192, Preston CJ shed further light on the phrase "…are planted so as to form a hedge…" at [11]-[44]. The Court must find firstly that the trees were planted, rather than being self-sown or of some other origin. Secondly, the Court must find that there was intention at the time of planting to create a hedge. Thirdly, the Court must also find that the trees form a hedge in the present.
4. The three trees in Mr Richards' application are not planted so as to form a hedge. During his submissions, Mr Richards himself stated that the trees probably grew here naturally, rather than being planted. There is certainly nothing about their formation that suggests they were planted to form a hedge or any kind of continuous screen. They are separated from each other physically, especially T3. They are three different species. They each have the form of a single landscape tree. They have not been pruned to create a screen, but have grown to their natural form. They do not appear as a hedge in the present.
5. As the trees are not planted to form a hedge, Pt 2A of the Trees Act does not apply to these trees. Regardless of any view obstruction any of these trees might cause, the Court cannot make orders under Pt 2A of the Trees Act. Therefore, in this matter, there is no need for the Court to evaluate any view obstruction, or to consider matters at s 14F of the Trees Act.

The applicant's predicament

1. Mr Richards included in his evidence a copy of an email he received from Council's arborist, the first two paragraphs of which I copy below, with the applicant's tree numbering added. "With reference to point 2, this tree is a Tuckeroo [T2], not a fig, and as it is within three metres of your house, permission will always be given to remove the tree. But that is subject to owner's consent, which seems to be the obstacle. I was supportive of the lateral branch of the Ficus [T1] being pruned as I believe the tree can handle the pruning and it would not affect the amenity of either resident. Once again, however, permission needs to be granted."
2. Mr Richards would like to prune overhanging branches of the Port Jackson Fig (T1). He says, and photos show, that the tree's branches extend over the rear garden of his property. He has met with Council's arborist, who has advised in writing that Council would permit removal of a low branch extending over his property, but this would require the tree owners' consent. The Sharps have refused Mr Richards' request for their consent. Therefore, Mr Richards finds he is prevented from carrying out works on his property, where those works would be permitted by Council but require neighbouring consent that is unforthcoming.
3. Mr Richards was also informed by Council's arborist that the Tuckeroo (T2), being less than 3 metres from a dwelling, is exempt from tree controls in Council's Development Control Plan 2015 ('the 2015 DCP'). Nevertheless, it is the Sharps' tree and its removal would be a matter for them. They do not wish to remove it. Mr Richards would like branches pruned away from his dwelling, but again has been unable to obtain the Sharps' consent to do this.
4. During the hearing, the Sharps stated that T3 is on the applicant's land, not theirs, so Mr Richards should be able to take any action he wishes with that tree. The tree is less than 3 metres from his dwelling.
5. Mr Richards' application highlights potential limitations for some residents. While under some development control plans, a tree owner can carry out some minor pruning works without requiring council consent, a person living next to a tree might only be able to carry out such exempt pruning works if they gain the tree owner's consent. It is the challenge of dealing with this problem that has led Mr Richards to make this application under Pt 2A of the Trees Act, but where I find no orders can be made.
6. Mr Richards stated his original intention of pruning trees back to the boundary, a common law right over which, importantly, the terms of the 2015 DCP prevail. Nevertheless, he finds he is prevented from carrying out some reasonable pruning works that would receive Council consent. He received advice that Council could take no further action, but that he might find some resolution via the Trees Act. Without further legal advice, Mr Richards searched through the options available to him, concluding that the trees' obstruction of his view might allow the Court to make orders. He does not claim that the trees have caused damage, so had no reason to make an application under Pt 2 of the Trees Act.
7. Here we have a tree (T1) that benefits both parties but, apparently, only one of those parties can carry out approved tree works on their side of the boundary while the other party cannot, unless their neighbour consents. This would remain the case even if most or all of the tree's canopy was over Mr Richards' property.
8. Mr Richards submitted that his neighbours are able to prune up to 10% of their tree annually without requiring Council permission. Council's website states: "You do NOT need approval to prune 10% or less of your tree's canopy (this can only be done once in a calendar year)." [1]
9. Providing information on neighbouring trees, Council's website states: "Trees on Neighbour's Property Overhanging branches First, talk to your neighbour to ask permission to prune the overhanging branch. If you are pruning less than 10% of the tree, you do not need council approval. Any costs associated with tree pruning or removal needs to be negotiated with your neighbour." [2]
10. Two versions of Chapter 39 'Natural Resource Management' of the 2015 DCP are available via Council's website. One of these includes, at section 4.4, the following exemptions: "4.4 Other Trees and Tree Work Exempt from this Section 1. Despite any other provisions in this plan works to trees or the removal of trees and bushland is exempt from this order in the following circumstances: a. … b. The work being carried out is confined to the removal of tree branches which directly overhang the roof of a residence or commercial building and the extent of the work is limited to the pruning of branches to the nearest branch junction or collar to clear the roofline, provided the owner of the tree is in agreement. Pruning must be consistent with the relevant Australian Standard for the Pruning of Amenity Trees (AS4373-2007). c. The work being carried out is minor pruning. For the purpose of this clause, minor pruning means work that does not reduce the canopy of a tree by more than 10% in any 12 month period. This work must be consistent with the Australian Standard for the Pruning of Amenity Trees (AS4374-2007). d. … e. … f. … g. …" [3]
11. Exemption 'b' for pruning branches over a roof requires the tree owner's consent. Exemption 'c' for minor pruning works does not include this requirement.
12. The other version of Ch 39 of the 2015 DCP available via Council's website does not include the exemption for minor pruning works at section 4.4. [4]

Orders

1. For the reasons set out above, the Court orders: 1. The application is refused.

Endnotes

1. Sutherland Shire Council, "Trees on Private Property" https://www.sutherlandshire.nsw.gov.au/Residents/Trees/Trees-On-Private-Property/Trees-on-Private-Property#tree accessed 22 July 2021.
2. Sutherland Shire Council, "Trees on Neighbour's Property" https://www.sutherlandshire.nsw.gov.au/Residents/Trees/Trees-on-Neighbour's-Property accessed 22 July 2021.
3. Sutherland Shire Council, "Natural Resource Management DCP 2015 Chapter 39" https://cms.ssc.nsw.gov.au/files/sharedassets/website/document-library/land-use-and-planning/research/39-natural-resource-management-am-6-incl-greenweb-map-to-publish-20210310.pdf accessed 22 July 2021.
4. Sutherland Shire Council, "DCP Chapter 39 Natural Resource Management" https://www.sutherlandshire.nsw.gov.au/files/sharedassets/website/document-library/land-use-and-planning/planning/39-natural-resource-management-as-at-28-feb-2018.pdf accessed 22 July 2021 accessed 22 July 2021. 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: 23 July 2021