Summers v Kumar

Part 2A

1. Mr Summers' Part 2A application also seeks removal of the ten cypress trees on the basis that they severely obstruct views from, and sunlight to, his dwelling. Failing that, he seeks orders for the trees to be pruned and maintained at a height of no more than 2.5 metres above ground level.

The hearing and expert evidence

1. The hearing took place onsite, allowing observations of the trees, damage, views, view obstruction and other relevant features.
2. Shaun King, arborist, prepared a report for the applicant but was not required at the hearing. Peter Fennell, engineer, prepared a report regarding the applicant's driveway damage and gave evidence at the hearing. His report was submitted later than the date required by the Court's earlier directions. This does not appear to have disadvantaged the respondents. I accepted the report so that I might be fully informed of the facts, on the basis that if any matters of contention arose the respondents might be given the opportunity to obtain further expert opinion.
3. Charmian Eckersley, arborist, prepared a report for the respondents. This report did not comply with Schedule 7 to the Uniform Civil Procedure Rules 2005, however Ian McKenzie, arborist, provided oral evidence for the respondents and was available for questioning.

Relevant jurisdictional tests for the Part 2 application

1. Relevant jurisdictional tests for the Part 2 application are set out at s 10 of the Trees Act: 10 MATTERS OF WHICH COURT MUST BE SATISFIED BEFORE MAKING AN ORDER (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (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.
2. The applicant has made reasonable effort to reach agreement with the respondents and has given the required notice. The remaining relevant issues, then, are whether the trees have damaged Mr Summers' driveway and whether they are likely to cause injury. The Court has found previously (for instance, in Difford v Davidson [2018] NSWLEC 1612 at [11]) that, before orders can be made for any one tree in the application, this test must apply to that tree. If I find that trees have caused damage to the applicant's property, I can make orders as described at s 9 of the Trees Act, but only after considering the matters listed at s 12.

Have the trees damaged the applicant's property?

1. Mr Summers' concrete driveway lies next to the common boundary shared with the Kumars, running from the street at the front to his garage behind his dwelling. The row of cypress trees is on the other side of the boundary, close to the driveway where it passes the dwelling. Mr Summers alleges that cracks in the driveway are caused by tree roots. Some sections are slightly raised so that there is a small difference in levels at some cracks. No investigations have been carried out to show there are roots beneath or in the vicinity of the cracks.
2. Some cracks run across the driveway, perpendicular to the boundary, but there is at least one crack that runs along the driveway.
3. A section of the driveway near Mr Summers' garage, well away from the cypress trees, also has some cracking. Mr Summers described one crack in this area as a construction defect that appeared soon after the driveway was constructed some 30 years ago. He accepted "a few hundred dollars" from the builder as compensation and has seen no need to repair it to date. Mr Fennell attributed another crack near the rear of the dwelling to shrinkage of the concrete.
4. Mr Fennell was unsure if the driveway is reinforced. Because more cracking was observed in the vicinity of the trees, he reasoned they have caused the damage. When asked if he could be certain the damage was not caused by usual wear-and-tear, he said he was unsure as this was not his area of expertise, and further investigation would be required.
5. Growing on the boundary fence are some climbing figs, a species with tree-like root systems. There was some debate about whether these plants grow from the applicant's or respondents' property. Mr Fennell conceded he had not considered these when forming his opinions regarding damage to the driveway.
6. The applicant's arboricultural report also omitted any mention of the climbing figs. He concluded that cypress roots will continue to cause damage in future, but did not explain his reasons for this opinion.
7. Mr Summers provided a photo showing tree roots found in his garden bed, saying the roots were from the cypress trees. The roots have not been professionally identified.
8. Mr Fennell described two options for repairing the driveway: permeable paving laid on grade; or a raised driveway supported by piles. He said a replacement driveway of a similar standard might remain stable but this could not be guaranteed.

Findings

1. Having read the applicant's reports and heard the evidence and submissions, I am not satisfied that roots of the neighbouring cypress trees have damaged Mr Summers' driveway.
2. Some of the pattern of driveway cracking may be consistent with damage caused by tree roots, but root damage does not explain other cracks in the same area, such as the crack running along the centre of the driveway parallel to the common boundary.
3. No investigation has been carried out to demonstrate roots have caused any cracking. Such investigation could be reasonably expected, especially where circumstances do not obviously suggest a nexus between trees and damage.
4. If roots have caused damage, it is at least possible that those roots belong to the climbing figs growing on the fence. The figs are not part of this application.
5. Cracks are present elsewhere in the driveway, away from the trees. Although these may have different causes, this does not indicate tree roots have caused any damage.
6. Nevertheless, even if I accept the applicant's submissions that tree roots have damaged his driveway, I would still not find it appropriate to make any orders for the respondents to pay for repairs to his property, nor to order removal of the trees on this basis.
7. Firstly, the Trees Act does not enable the Court to order the removal of a group of trees when perhaps only one or two of those trees have caused damage. The jurisdictional test at s 10(2) must be applied to each tree, and satisfied for each individual tree before orders can be made for that tree. Exceptions to a jurisdictional test have been made under Part 2A, perhaps, where a tree in a hedge doesn't meet the minimum height requirements of Part 2A, although the heights of other trees in the hedge satisfy that test; but I am not aware of such exceptions being made under Part 2 of the Trees Act. The wording at s 10(2) is singular: tree. (The wording in Part 2A, at s 14A(1) is plural: trees.) It follows that there is an expectation that the applicant demonstrates, and the Court is satisfied, precisely which trees have caused (or are likely to cause) damage. If, for example, it was shown that two of the neighbouring cypress trees have damaged Mr Summers' driveway, I could not make orders for the other eight trees unless they satisfy some other jurisdictional test.
8. Secondly, the severity of the cracking and lifting of the driveway is so minor that I would not make orders for its repair even if it was caused by the neighbouring cypress trees. While there may be several more cracks near the trees than elsewhere, they are not significantly larger than other cracks discussed above, in front of the garage and near the rear of the dwelling. Mr Summers has accepted living with those cracks for up to 30 years.
9. The above reasons explain why no orders will be made for that element of the application, based on damage caused by trees, seeking tree removal and compensation for damage. The applicant also seeks orders for tree removal and installation of a root barrier to avoid future damage caused by these trees. Due to my findings and orders in the Part 2A application, these matters do not require consideration here.

Are the trees likely to cause injury?

1. Mr Summers showed photos of the Kumars' property taken during replacement of a retaining wall near their trees. According to Mr Summers this shows structural roots were severed, with the trees growing in a shallow soil profile, so there is now a risk that the trees will fall over onto his property and injure somebody. I'm not satisfied on the limited evidence that significant structural roots were cut, and with the new retaining wall in place I could not see damaged roots.
2. Mr McKenzie expressed his opinion that there is no sign of instability or rootplate movement in the six months since those works, and there is little cause for concern. Pruning to reduce the trees' height would minimise any risk, but this does not appear necessary. I accept Mr McKenzie's view. There are no grounds to order tree removal on this element of the application.

Relevant jurisdictional tests for the Part 2A application

1. Part 2A of the Trees Act applies only to certain trees (s 14A(1)): 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) …
2. The ten cypress trees are clearly planted to form a hedge and are approximately 10 metres tall. This is not disputed.
3. For Part 2A, relevant jurisdictional tests are set out at s 14E(2) of the Trees Act (the test at s 14E(1) being similar [and similarly satisfied] to s 10(1)): 14E MATTERS OF WHICH COURT MUST BE SATISFIED BEFORE MAKING AN ORDER (1) … (2) The Court must not make an order under this Part unless it is satisfied that: (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.
4. If I find that the trees cause a severe obstruction of sunlight or views for the applicant, I must consider matters listed in s 14F. If the obstruction's severity outweighs any reasons for not interfering with the trees, I can make orders described at s 14D.

Do the trees cause a severe obstruction of views from the applicant's dwelling?

The hedge

1. The ten Leyland Cypress (Cupressus × leylandii) trees are planted closely at regular intervals, creating a solid green 10-metre high screen, approximately 12 metres along the boundary, less than three metres from the applicant's dwelling. For its effect on views and sunlight, it is like a solid wall.

Obstruction of views

1. The applicant took us to rooms on the lower level of his dwelling. From the lounge and dining rooms the outlook to the east and northeast is completely obstructed by the hedge, while some view to the north across the street remains. Were it not for the hedge, the applicant would have, from these rooms, views of the broad landscape across Newcastle to the northeast and possibly some views to the coast. These living rooms are likely to be used frequently in a manner which would allow enjoyment of the views if they were available. I find the view obstruction here is severe.
2. On the dwelling's upper level, above these rooms, is a large living room used for working and other purposes. Again, while a view to the north remain, views to the northeast and east are entirely obstructed by the cypress hedge. The house was designed to take advantage of these views before the hedge grew here. The large windows here would otherwise allow expansive views to the distant coast. The trees, a few metres from these windows, form a solid screen between the dwelling and these views. I find the view obstruction here is severe.

Benefits of the trees

1. For the respondents, the trees provide privacy to their dwelling, where large windows on the upper level, to a child's bedroom and a living room, face west to the applicant's dwelling. The respondents value their privacy and wish to maintain the hedge at a height that will continue its screening benefits. They propose to construct a swimming pool in the area between their dwelling and the common boundary, so they also desire privacy for this area.

Other matters to consider

1. Having considered the matters at s 14F of the Trees Act, I find several issues relevant to my decision here.
2. The trees grow close to and along the common boundary. The solid screen they provide, some ten metres tall, is less than three metres from the applicant's dwelling.
3. The trees were not there prior to construction of the dwelling, which was designed to take advantage of the views.
4. The hedge did not exist when the Summers purchased their property. The trees have grown to their current height during the period that the applicant has occupied the dwelling.
5. The trees are not heritage items and are not native species. A permit from Newcastle City Council would be required for their removal.
6. The trees have no specific cultural value and contribute little to the local ecosystem. They provide amenity to the respondents' property; and they contribute to the overall canopy cover of Newcastle's urban forest. It has not been shown that the trees contribute to soil stability or groundwater movement.
7. The trees prevent overlooking from the applicant's property into the respondents'. Some privacy could be achieved through other less obstructive means. For people living closely in urban environments, it is perhaps unreasonable to expect that neighbours will have no sightlines to their windows, gardens or swimming pools; as is preventing that overlooking with what is effectively a 10-metre solid wall along the boundary.
8. The trees screen views from the applicant's property. More distant landscape features obstruct only parts of a view, or form parts of the applicant's views.
9. The respondents have taken no action to prevent the view obstruction. The applicant has asked the respondent to address the issue before making this application to the Court.
10. Being an evergreen species, screening by the cypress trees persists throughout the year.
11. The applicant has lost the principal views from his dwelling, being broad landscape views to the northeast, across Newcastle to the coast. The views are lost from living areas likely to be used frequently, both day and night.
12. Considering the above, I find that the applicant's interests in removing the view obstruction from both levels of his dwelling outweigh the respondents' reasons to avoid interfering with the trees, as well as any benefits that the trees provide.

Impact of pruning to restore views

1. The Kumars say they are happy to prune the trees a little, but wish to prevent overlooking from both levels of the applicant's dwelling, which they submit could be achieved by pruning the trees to a height of 5.5 metres. Mr Summers says this would not improve their views; rather, a maximum height of 4 metres is required for either pruning these trees or maintaining any replacement trees.
2. Mr McKenzie was of the opinion that the trees have not yet reached their full size. He thought pruning in stages, rather than all at once, might minimise the adverse impact of pruning on the trees. He thought the trees would be affected by pruning at 5.5 metres, but they should recover and grow over time; however pruning the trees to 4 metres would result in more severe impacts and it might then be preferable to instead remove the trees and replace them with something else. He suggested a Syzygium species would be an appropriate replacement.
3. The applicant referred the Court to Ingham v Pettigrew [2016] NSWLEC 1002 (Ingham), where orders were made for removing cypress trees in a hedge because the impact of pruning to restore views would severely impact the trees.
4. I find that pruning the trees to a height of 5.5 metres, as suggested by the Kumars, would do little to restore views from Mr Summers' upper level. Reducing them to less than 4.5 metres in height would be required to restore upper level views, but would adversely affect the trees to the extent that they would not be worth retaining. Pruning to restore views to the dwelling's lower level would have an even greater impact.
5. As in Ingham, I consider tree removal here is preferable to pruning. In Price & anor v Harrison & anor [2013] NSWLEC 1149, Fakes C also found this to be the case when considering the option of reducing cypress trees 10-13 metres tall to 6 metres (at [17]): In my view, the trees are now too large to satisfactorily reduce and maintain them and therefore the proposed consent orders for tree removal are appropriate in the circumstances. Ergo, orders will be made for removing the ten trees. Had the Kumars pruned the trees when they were younger, the impacts of further height reduction now might be considerably less, allowing for their retention.

Sunlight obstruction

1. Trees in the hedge obstruct sunlight to the applicant's lower-level windows all morning, and to windows on the upper level for part of the morning. Certainly the former, and possibly the latter, would be considered a severe obstruction. Due to the above conclusions, however, I do not need to consider obstruction of sunlight further, nor balance this element of the application against the benefits of the trees.

Replacement planting and maintenance

1. The Kumars want some screening along the boundary. Mr McKenzie recommended planting a row of Syzygium species, suitable for pruning as a hedge. The applicant's submission that any future trees be maintained at a height of no more than four metres seems reasonable. Orders will be made for replanting trees as a hedge and for maintaining this hedge.

Orders

1. As a result of the foregoing, the orders of the Court are: 1. Within 30 days of the date of these orders the respondents are to engage and pay for an AQF level 3 arborist with all appropriate insurances, to remove the ten cypress trees along their western boundary. The stumps are to be ground to a depth of at least 300mm. 2. The work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 3. On reasonable notice the applicant is to allow any access to his property necessary for removing tree debris. 4. Within six months of the date of these orders, the respondents are to plant a row of Syzygium species, or other suitable hedging plants but not cypress or other conifers, along their western boundary, at least one metre from the boundary. 5. Once any tree planted in (4) reaches 4 metres above ground level, the respondents are to prune each tree in the hedge to a height of no more than 3.5 metres above ground level. 6. The respondents are then to annually maintain the trees planted in (4), during the month of June, beginning the year after the initial pruning event in (5), pruning each tree to a height of no more than 3.5 metres above ground level.

D Galwey Acting Commissioner of the Court

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: 07 February 2019