Stroud and Anor v CMZZJ Investments Pty Ltd

Background

1. The salient background facts are uncontentious. The applicants own a property in Orange Grove Road, Blackwall. At the time the applicants became registered proprietors, the Tree was situated on an adjacent property owned by CMZZJ. As a result of concerns in relation to the Tree, in May 2021, the applicants obtained a civil and structural engineering report detailing "damage" allegedly caused (or being caused) by the Tree to structures on their land. The report was provided to CMZZJ in late May 2021, and in April 2022, the Tree was removed.
2. Discussions took place and correspondence was exchanged between the parties and their respective solicitors, and the current proceedings were commenced by the applicants on 26 April 2024 by the filing of a Tree Dispute Application ('Class 2 application') seeking relief comprising the removal of the Tree, payment of damages in the sum of $103,105.88, interest and costs.
3. As noted above, by notice of motion filed 6 June 2024, CMZZJ seeks orders pursuant to r 13.4 or r 14.28 of the UCPR that the proceedings be struck out.

Evidence

1. The applicants read the affidavit of John Stroud affirmed 20 June 2024 who deposes to the background of the matter including reference to the expert civil and structural engineering report obtained by the applicants and annexing correspondence passing between the parties and their solicitors detailing their respective opinions in relation to the competency of these proceedings.
2. CMZZJ reads the affidavit of Craig Andrews, the sole director of CMZZJ, affirmed 6 June 2024, who also deposes to background correspondence between the parties and records that the Tree was "removed from" CMZZJ's land in April 2022. Mr Andrews annexes correspondence from CMZZJ's solicitors stating their opinion that the proceedings are incompetent because the Trees Act does not apply to any tree that was removed from the land before an application under Pt 2 of the Trees Act was made.

Statutory background

1. The relevant sections of the Trees Act provide: 4 Act applies to trees on certain land (1) This Act applies only to trees situated on the following land: (a) any land within a zone designated "residential", "rural-residential", "village", "township", "industrial" or "business" under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979) or, having regard to the purpose of the zone, having the substantial character of a zone so designated, ... (2) This Act does not apply to trees situated on: (a) any land that is vested in, or managed by, a council, or (b) any land of a kind prescribed by the regulations. (3) For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land. (4) Without limiting subsection (3), a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on land for the purposes of the application if the tree was situated wholly or principally on the land immediately before the damage or injury occurred. 5 Action in nuisance No action may be brought in nuisance as a result of damage caused by a tree to which Part 2 applies or as a result of an obstruction of sunlight to the window of a dwelling, or of a view from a dwelling, caused by trees to which Part 2A applies. … Part 2 Court orders - trees that cause or are likely to cause damage or injury 7 Application to Court by affected land owner An owner of land may 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 this Act applies that is situated on adjoining land. 8 Notice of application for order to be given to owners of affected land (1) An applicant for an order under this Part must give at least 21 days notice of the lodging of the application and the terms of any order sought to: (a) the owner of the land on which the tree is situated, and (b) any relevant authority that would, in accordance with section 13, be entitled to appear in proceedings in relation to the tree, and (c) any other person the applicant has reason to believe will be affected by the order. (2) The Court may direct that notice of an application be given to a person or that notice be given in a specified manner or within a specified period. (3) The Court may waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances. 9 Jurisdiction to make orders (1) The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned. (2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may: (a) require the taking of specified action to remedy damage to property, or (b) require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or (c) require the taking of specified action to prevent injury to any person, or (d) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), or (e) authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or (f) authorise the applicant concerned to take specified action to prevent injury to any person, or (g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), or (h) require the payment of costs associated with carrying out an order under this section, or (i) require the payment of compensation for damage to property, or (j) require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth. … 12 Matters to be considered by Court Before determining an application made under this Part, the Court is to consider the following matters: (a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises, (b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained, (b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act, (b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree, (b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated, (c) whether the tree has any historical, cultural, social or scientific value, (d) any contribution of the tree to the local ecosystem and biodiversity, (e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned, (f) the intrinsic value of the tree to public amenity, (g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned, (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage, (i) if the applicant alleges that the tree concerned is likely to cause injury to any person: (i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury, (j) such other matters as the Court considers relevant in the circumstances of the case. …
2. The Trees Act was amended by the Trees (Disputes Between Neighbours) Amendment Act 2010 (NSW) ('2010 Amendment'). Prior to this amendment, s 4 did not include subs (4).
3. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 ('Robson'), Preston CJ of LEC carried out a comprehensive structural and textual overview of the operation of the Trees Act. This overview was undertaken prior to the enactment of the 2010 Amendment which added subs (4) to the then s 4.

CMZZJ's position

1. CMZZJ submits that the Trees Act does not apply to the Tree the subject of the application as it was removed from its land two years before the Class 2 application was filed.
2. CMZZJ contends that the Class 2 application is incompetent as it is outside the requirements of s 7 of the Trees Act as there is no longer "a tree" on its land and, as such, the applicants do not have a reasonable cause of action. CMZZJ submits that the Court has the power to dismiss the Class 2 application through r 14.28(1)(a) or r 13.4(1)(b) of the UCPR (which allow for the whole of a pleading to be struck out or the proceedings to be dismissed, respectively, where there is no reasonable cause of action).
3. CMZZJ identifies a number of operative provisions of the Trees Act and submits that ss 9 and 14D(1) confirm that the jurisdiction of the Court is to make orders where an adverse effect arises "as a consequence of the tree the subject of the application concerned", and, that ss 7 and 14B create a link between an application that is made to the Court and the Trees Act applying to a tree (or trees).
4. CMZZJ points to the fact that there are some trees which cause adverse impacts, which cannot be adjudicated for under the Trees Act, and that s 5 sets out when common law actions in nuisance remain available where damage or injury is caused by a tree when Pt 2 or Pt 2A of the Trees Act does not apply.
5. CMZZJ submits that s 4 of the Trees Act should be interpreted as requiring that a tree must presently exist which is situated or located on a particular land the owner of which land shall be responsible for damage caused by that tree. And, by reference to the analysis of Preston CJ of LEC in Robson at [144]-[147], submits that the language of s 4(1)-(3) indicates that a tree must exist in "the present" and must not have been "wholly removed" on the basis that s 7 of the Trees Act uses the present tense when describing the location of the tree.
6. CMZZJ raises four matters when reading the Trees Act in its "widest sense". First, it is clear that the 2010 Amendment did not alter the general structure of the operational provisions of the Trees Act such that it is still drafted in the present tense. Further, the 2010 Amendment also introduced new provisions which were drafted in the present tense (see s 14E(2) of Pt 2A).
7. Second, although the Court when dealing with Class 2 proceedings does not solely perform functions under the private law of tort or nuisance, the Trees Act expressly contemplates (under ss 13, 14, 14G or 14H) that parties other than the relevant landowners may need to be heard.
8. Third, the 2010 Amendment inserted a new Pt 2A (relating to high hedges that obstruct sunlight or views) which also operates in the present tense and thus, the analysis of Preston CJ of LEC in Robson must still be applicable.
9. Fourth, the second reading speech for the 2010 Amendment indicates a clear intention of Parliament for some matters to be heard "under the common law in other courts".
10. In relation to s 4(4) of the Trees Act, CMZZJ submits that this subsection is to be taken in the "widest sense" and the words "that gave rise to an application" require the Tree to be situated on CMZZJ's land at the time when the application was made. As no application had been made at the time of the removal of the Tree, s 4(4) simply cannot apply and, accordingly, the Class 2 application should be dismissed as it is not one properly made under s 7 and the Court does not have statutory authority to entertain these proceedings.
11. CMZZJ further submits that a broader "structural reason" supports its position being that, because the matters that are properly the subject of the Trees Act effectively involve the administration of public law, such that "when and while the tree is present and hence contribut[es] to the local environment or amenity then the private interests of the persons involved are sublimated into the wider public law". And, that this remains true even if the relevant tree is removed after an application is made because "the recent presence of that tree will still likely be a feature in the landscape such that the Court will still be able to take account of it in its consideration of the matters under s 12". However, CMZZJ considers that once the tree is removed, there are no remaining "public law questions", and the only legal questions remaining would be issues of damage to property, causation and remedy, all of which are matters that are more appropriately considered under the private or common law in "other courts" where the formal rules of evidence apply.

Applicants' position

1. The applicants submit that the Class 2 application was validly brought under s 7 of the Trees Act and the plain text of s 4(4) of the Trees Act, permits an application for damage to property despite the tree having been removed.
2. The applicants point to the Explanatory Note to the 2010 Amendment which states: "Schedule 1 [4] makes it clear that the removal of a tree following damage or injury caused by the tree that gives rise to an application under Part 2 of the principal Act does not prevent a person from making such an application."
3. The applicants contend that the second reading speech for the 2010 Amendment (Mr Collier) demonstrates that the clear objective of the amendment was to override the decision in Robson and provide the ability for a party who has had their property damaged by a tree to apply to the Court to seek compensation for the damage.
4. The applicants note that there is no commentary in relation to the construction of the Trees Act suggesting that the tree must be on the landowner's property at the time the application is brought. And, if that was the case, it would have been addressed at the time of the second reading speech as the reason for the amendment given the decision and reasons in Robson.
5. The applicants submit that the second reading speech which states: "[t]he review found that it is preferable for all cases of damage caused by trees in eligible zonings to be dealt with by the Land and Environment Court under the Trees Act, rather than have those cases heard under the common law in other courts simply because the tree in question has been wholly removed" clearly demonstrates that the preference and intent of the legislation is to have one body, being this Court, deal with all applications involving damage caused by trees on a neighbour's property.
6. The applicants further note that since the 2010 Amendment, the Court has heard Class 2 applications in similar circumstances to the present application - where a tree was present when damage occurred but was since removed: Hinidza v Land and Housing Corporation [2016] NSWLEC 1055; Daley v Murray [2015] NSWLEC 1489; Gennusa v Dangerfield [2015] NSWLEC 1194.

Legal principles

1. As the dispute as to statutory interpretation between the parties is discrete, and leaving aside my view regarding the primacy of text, I shall briefly summarise the legal principles I am to apply.
2. In the modern approach to statutory interpretation, the importance of context has routinely been emphasised: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2; SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] ('SZTAL').
3. Kiefel CJ, Nettle and Gordon JJ in SZTAL at [14], observed that: "The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected." (Citations omitted.)
4. And, as Bell P (as the Chief Justice then was) noted in Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 ('Sydney Seaplanes') at [31]: "Words, whether used in a statute or more generally, always exist in and take their meaning from the particular context in which they are used. That context may expose any mischief which a statute is directed towards redressing and may reveal the purpose underpinning the enactment. That purpose, in turn, guides the preferred meaning to be given to the words being construed. The process of statutory interpretation may thus be seen as a holistic one or, as Campbell JA has identified both judicially and extra-judicially, as one involving something akin to hermeneutic reasoning…" (Citations omitted.)
5. Under s 34(2)(f) of the Interpretation Act 1987 (NSW), extrinsic aids, such as a second reading speech (now the "Agreement in Principle Speech"), may be used to discover the underlying purpose or object of the Act: D C Pearce & R S Geddes, Statutory Interpretation in Australia, (10th ed, 2024) at [3.9], [3.27].
6. The principles that I am to apply in relation to summary dismissal of proceedings pursuant to r 13.4 and r 14.28 of the UCPR are well-known and may also be shortly noted.
7. The power to dismiss claims or strike out pleadings at an interlocutory stage of the proceedings is only appropriately exercised where it is plain and obvious that there is no issue to be tried such that it would be inappropriate to allow the proceedings to continue: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; [1964] HCA 69; Shaw v State of New South Wales [2012] NSWCA 102; (2012) 219 IR 87 at [32]. By bringing an application for summary dismissal, the applicant for relief undertakes the burden of establishing that there is no triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11; [1992] NSWCA 272.
8. In applying these principles, I remain mindful that r 13.4 and r 14.28 of the UCPR must be interpreted and applied in the light of the overarching purpose set out in s 56(1) of the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in the proceedings: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [29].
9. I approach this matter mindful that the question of statutory construction cannot always be resolved merely by resorting to the literal meaning of statutory language and that the modern approach to statutory interpretation permits recourse to extrinsic materials in the absence of ambiguity. I am also conscious in considering the weight to be given to the 2010 Amendment of the principle that remedial legislation whilst given a beneficial construction does not trump other principles of statutory construction and is, at best, a manifestation of the general principle that all legislation is to be construed purposively.

Determination

1. I am of the view that the construction proffered on behalf of the applicants is to be preferred for the following reasons.
2. First, I find that s 4(4) of the Trees Act read both literally and with the other sections of the Trees Act to which I will return, clearly provides that an application brought in this Court pursuant to s 7 may be commenced if the tree about which concern has been raised has been removed.
3. Second, apart from a literal reading of the subsection, I have taken into account the purpose of the Trees Act and whilst it is not always easy to identify or discern the purpose of a given Act, some guidance can be obtained from the "Long title" of the Trees Act which states: "An Act to provide for proceedings in the Land and Environment Court for the resolution of disputes between neighbours concerning trees; and for other purposes."
4. As such, to interpret s 4(4) in the way contended by CMZZJ, would thwart the intention and purpose of the Trees Act.
5. Furthermore, it is clear in my view that the purpose and object of the 2010 Amendment creating s 4(4) was to address the decision in Robson and was, effectively, a "prophylactic statutory response" to that decision: Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [32]; Sydney Seaplanes at [38]. This is clearly identified in, first, the Explanatory Note to the 2010 Amendment, which provides: "… Schedule 1 [4] makes it clear that the removal of a tree following damage or injury caused by the tree that gives rise to an application under Part 2 of the principal Act does not prevent a person from making such an application. …" and, second, the Agreement in Principle Speech read in relation to the 2010 Amendment, which contained the following: "… The bill also makes it clear that an application to the Land and Environment Court can still be made after the removal of a tree that has caused the damage or injury giving rise to the application under part 2 of the Act. In Robson v Leischke [2008] NSWLEC 152 the Land and Environment Court found on 1 May 2008 that it has no jurisdiction to make orders to remedy damage to property, or require payment for compensation for damage caused by a tree, if that tree has been wholly removed. That is because section 7 of the Trees Act uses the present tense when describing the location of the tree on adjoining land. It refers to 'a tree ... that is situated on adjoining land'. A number of submissions to the review suggested that the Act should be amended to allow the Court jurisdiction where the tree has been wholly removed. The review found that it is preferable for all cases of damage caused by trees in eligible zonings to be dealt with by the Land and Environment Court under the Trees Act, rather than have those cases heard under the common law in other courts simply because the tree in question has been wholly removed. The bill therefore amends the Trees Act to apply to situations where the tree has been wholly removed following the damage or injury giving rise to the application. …"
6. I do not accept CMZZJ's submission that, despite the Agreement in Principle Speech, the relevant amendment did not effect what was otherwise the intention. While I accept that care must be taken because political and policy compromises sometimes obscure legislative purpose, I consider that the literal interpretation carries the day.
7. Even if I were wrong in relation to my textual reading, I consider that the context including the statutory background would militate against CMZZJ's position. In relation to context, I have also given consideration to the overall statutory background to the Trees Act including the common law regime prior to the Trees Act as elucidated in Robson, which included consideration of the report by the NSW Law Reform Commission, Report 88 - Neighbour and Neighbour Relations, (Sydney, November 1998) which led to the Trees (Disputes Between Neighbours) Amendment Bill 2010 (NSW), which was then introduced and read a second time in October 2006. I also consider that the Trees Act itself effectively established a separate statutory scheme generally adopting the recommendations of the NSW Law Reform Commission.
8. It follows from my findings above that I do not accept CMZZJ's reliance on the provisions of Pt 2A (introduced in the 2010 Amendment) to support its case. Part 2A discretely relates to "high hedges that obstruct sunlight or views". The very nature of the mischief (again dealt with in the Agreement in Principle Speech) requires that the plantings the subject of the relief under Pt 2A, are planted and rise to a particular height and thereby affect sunlight to a window or any view from a dwelling (as per ss 14A and 14B of the Trees Act). Further, the jurisdiction to make orders in relation to Pt 2A does not provide for compensation, in contradistinction to orders under Pt 2. It follows that I do not accept that consideration of Pt 2A (particularly in relation to its presentation in the present tense) is of assistance to CMZZJ's case.
9. Further, I do not accept CMZZJ's submission that the matters that are properly subject to the Trees Act involve the "administration of public law", and that this flows from the nature of the matters to be considered in s 12. While it is the fact that s 12 requires certain matters to be considered by the Court in determining an application including location, need for approval, any historical, cultural, social or scientific value, any contribution to biodiversity, and the intrinsic value of a tree to public amenity, these do not assist in relation to the construction point the subject of this motion.
10. For the reasons above, I consider that an application to the Court by an affected landowner brought pursuant to s 7 of the Trees Act can be brought in circumstances where the relief sought is as a consequence of a tree that was situated on adjoining land and has been removed.
11. In addition to the above, I have taken into account other sections of the Trees Act and note that while I accept CMZZJ's submission that, if it was successful in this motion, the applicants may still have had an action in nuisance as s 5 of the Trees Act prevents actions in nuisance (as a result of damage caused by a tree) only in circumstances where such damage is caused by a tree "to which Pt 2 applies", I do not consider this assists CMZZJ's primary contention that the Tree must be in place as I find that the meaning in s 5 is clear on its own terms and does not affect the matter presently under consideration.

Costs

1. The applicants seek their costs. Under r 3.7(2) of the Land and Environment Court Rules 2007 (NSW), the Court is not to make an order for costs in proceedings in Class 2 unless the Court considers that the making of an order as to the whole or part of the costs is fair and reasonable in the circumstances. Rule 3.7(3) provides some of these circumstances.
2. I have not received submissions in relation to costs. If the parties cannot agree as to costs, I direct that both parties file written submissions limited to two pages within 14 days of this judgment, and any question of costs will be decided on the papers.

Conclusion

1. For the reasons above, the notice of motion filed 6 June 2024 should be dismissed. I reserve the question of costs.

Orders

1. The orders of the Court are: 1. The notice of motion filed 6 June 2024 is dismissed. 2. Costs are reserved.

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