Stefanis v Mettas

Judgment 1COMMISSIONER: The applicant has applied to the Court under Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders against a row of Cypress trees growing along the rear boundary of her neighbours' property. 2The orders sought are the removal of the trees and their replacement with another species and the ongoing maintenance of the replacement trees to maintain them at a height that does not obstruct sunlight to windows of her dwelling. These orders would also prevent future damage to her property. 3The applicant contends that at the time she made the application, the trees were severely obstructing sunlight to windows of her dwelling. With respect to the application made under Part 2 - damage and injury, she contends that overhanging branches could cause future damage to her dwelling and that roots may cause damage to plumbing and landscaping. She is also concerned that rats use the trees to access her property and that these may cause disease problems; similarly, that debris from the tree could be a fire hazard. 4The hearing commenced on site with an inspection of the trees from the respondents' property. Mr Peter Alland, Tree Management Officer from Rockdale Council attended the hearing. 5The trees are a row of nine Cupressus macrocarpa (Cypress pine) growing along the rear of north-eastern boundary of the respondents' property. It was very obvious that the trees had been quite recently and very heavily pruned. Mr Alland stated that council had approved the pruning but it seems that the extent of pruning was somewhat beyond that which was approved [a matter between the council and the respondents]. The trees have been topped to a height of about 5-6m and all of the branches on the north-western side of the tree, that is those closest to the applicant's property, have been removed back to the trunk. 6Dealing first with the application made under s 14B Part 2A, given that the trees have been pruned, the applicant seeks orders for their maintenance to prevent future problems. She also stated that the tree to the north still blocks late afternoon sun. 7In applications made under Part 2, there are a number of important jurisdictional tests. The first test is whether the trees are a 'hedge' for the purpose of the Act. Section 14A(1) requires there to be two more trees, planted so as to form a hedge, and which rise to a height of at least 2.5m. In this matter, I am satsified the trees meet the criteria. 8The next test is whether there is a severe obstruction of sunlight to windows of the applicant's dwelling. Section 14E(2)(a)(i) states that the Court must not make an order under this Part unless it is satisfied that the trees the subject of the application are severely obstructing sunlight to windows of a dwelling situated on the applicant's land. The use of the word 'are' means that the sunlight must be severely obstructed by the trees at the time of the hearing. This has been examined in a number of judgments on views including Tooth v McCombie [2011] NSWLEC 1004 at [14]-[15] with further lengthy discussion in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [43]-[52]. The principle is the same for sunlight. 9In this matter I am not satsified that sunlight is severely obstructed, or indeed could be. The applicant contends that prior to the pruning, the living room windows received about three hours of sunlight per day in summer and about ½ to one hour in winter. I note that the windows in question, on the ground level and first floor, face southeast and that they could normally only receive late afternoon sun at a very oblique angle. I also observed a two storey dwelling to the north that would obstruct some of the late afternoon sun in winter. While we did not visit the upper level, the trees at their current height would not obstruct sunlight to them. Therefore, I find that s 14E(2)(a)(i) is not satsified. 10The applicant seeks orders for their ongoing maintenance. While s 14B enables an owner of land to apply to the Court for orders to remedy, restrain or prevent a severe obstruction of sunlight to windows of a dwelling, the Court can only make orders under s 14D for prevention or maintenance if s 14E(2)(a)(i) and s 14E(2)(b) are satisfied. In this case, as s 14E2(a)(i) is not satisfied, the Court cannot consider s 14E(2)(b) or proceed to make orders. Therefore, the application with respect to sunlight is dismissed. 11Turning to the application under s 7 Part 2, the applicant is concerned about future damage to property by foliage and roots. Some of the applicant's concerns are based on an arborist's report obtained by the strata managers for the complex in which the applicant resides. The report from Mr David Cromack was prepared prior to the pruning of the trees. He makes assumptions about the impacts of the trees on sunlight and other things including "macro & micro organism proliferation (i.e. mould and mildew) & a negative impact on state of mind". He also makes assumptions about rats moving from the trees to the dwelling. He states that "allelopathic influences exerted by the trees are clearly evident....manifesting as die back of lawns & ornamental garden plantings". (Hence the applicant's concern's about damage to the landscaping.) Essentially his report states that as the trees continue to grow they will cause damage to the fence and root damage to services and footings etc. 12The report is based on observations and no excavations were carried out. The report does not cite relevant published and peer reviewed literature to substantiate the opinions. Some of the opinions are beyond the expertise of an arborist. In short, the report is of no assistance to the Court. 13The applicant is also concerned about the possible fire risk and therefore threats to property and persons created by the fallout of dead foliage into the garage roof guttering. 14In applications under Part 2, the key jurisdictional tests are found in s 10(2). This states that the Court must not make an order unless it is satisfied that any of the trees subject to the application have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are likely to cause injury to any person. 15At the hearing the applicant confirmed that no damage has occurred to date but the concerns are about future damage. The guidance decision published in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. This is a time period that I consider reasonable in the circumstances. In Robson v Leischke, at [58] and [200] Preston CJ states that there must be "a real, appreciable probability" of irreparable damage. In this matter, there is no evidence, or credible opinion, that this is likley to happen. The branches have been cleared well beyond the boundary fence and there are no signs that roots will be a problem. 16In regards to rats, in Robson v Leischke at [189], His Honour also noted that the cause must be the tree itself and that the mere fact that the tree might provide habitat to animals or insects which cause damage/ injury does not mean such damage/injury is "as a consequence of" the tree. Similar findings are found in Clune v Falconer [2008] NSWLEC 1458 with respect to mosquitoes and termites, in Immarrata v Mourikis [2007] NSWLEC 601 for bees, in Moase v McMahon [2010] NSWLEC 1123 at paras 17-19 with respect to bats and in Ratay v Allen [2010] NSWLEC 1086 concerning cockatoos. 17In regards to the risk of fire and subsequent damage and injury, I consider the risk of fire is so remote and highly unlikely to be realised. In Freeman v Dillon [2012] NSWLEC 1057 in regards to bushfire risk posed by trees I found at [86]: Despite this concern and the evidence, I am not satisfied that general bushfire risk posed by trees is within the jurisdiction of the Court under the Trees Act. A tree in itself does not start a fire...a person lights a fire, lightning strike, sparks from machinery etc may start a fire. However, if a bushfire damaged the trees and caused part or all of the tree to fail and cause damage to an applicant's property or injury to any person, then this may engage a consideration of s 12(h)(i) and s12 (i)(i), that is "anything, other than the tree, that has contributed, or is contributing, to any such damage/ injury or likelihood of damage/ injury". As discussed by Preston CJ in Robson at [210] this: " would also allow consideration of extraordinary natural events, acts of God, and their contribution to the damage or the likelihood of damage to property or the likelihood of injury to any person". As no injury or damage has occurred as a result of a bushfire affected tree, this element of the application is dismissed. 18In conclusion, while I accept that the trees were much larger and wider when the application was made, they have been substantially reduced and do not satisfy the relevant jurisdictional tests required to engage the court's powers to make orders. Therefore, the Orders of the Court are: (1)The application is dismissed.