Sund v Bailey

The applicant's case

1. Under Part 2, Mr and Mrs Sund propose orders to: 1. Restrain or prevent damage or, if damage has already occurred, further damage, to property with respect to both the damaged front dividing boundary wall, and attached front retaining wall, and to the branches of the dead tree overhanging their residence. They cited s 9(2b) with respect.to this order. 2. Require the taking of specified action to prevent injury to any person, based on the tree being dead and having dropped many medium sized branches into their front yard, where two small children live (s 9(2c)). 3. Require the payment of compensation for damage to property, specifically the damaged dividing boundary wall, and attached front retaining wall.
2. Under Part 2A, Mr and Mrs Sund propose orders to: 1. Take specified action to remedy the obstruction of a view, specifically Port Hacking River and the Royal National Park to the south (s 14D(2a)). 2. Take specified action to remedy the obstruction of sunlight or a view, caused by a tree growing adjacent to a high western wall boundary (s 14D(2b)). 3. Take specified action to maintain a tree or trees at a certain height, width or shape, to achieve (1) and (2) above (s 14D(2c)).

The respondent's case

1. The Baileys resist the proposed order for removal of the tree, or intervention with the hedge.

The hearing

1. The hearing commenced in the respondents' front yard, near the alleged damage to the retaining wall, and the area of perceived risk with respect to falling branches. In attendance were Mr and Mrs Sund, who were self-represented, and Mr and Mrs Bailey, represented by Ms Nurpuri of Counsel, and Ms Whale of WMD Law. Ms Nurpuri sought leave to table a report, and provide verbal evidence from Mr Suarez, Structural Engineer, of Jones Nicholson Consulting Engineers. Notwithstanding that this late application did not satisfy the Court timetable, this leave was granted, in the interests of justice and transparency. The Part 2 application was assessed first.

Jurisdictional requirements - Part 2

1. With respect to s 7, 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.
2. In Robson v Leischke [2008] NSWLEC 152 (Robson), at [147], Preston, CJ said: "The concept of a "tree" is wide enough to include a tree that has been reduced to a bare trunk or a stump that is still connected to the soil of the land. The concept of a tree also includes a tree that has died."
3. As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated, notwithstanding that negotiations have been difficult. In his application, Mr Sund provided evidence showing unsuccessful attempts to organise mediation with Mr and Mrs Bailey, via a Community Justice Centre.
4. The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant's property or is likely to cause injury to any person.
5. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb in relation to damage, the 'near future' is deemed to be a period of 12 months from the date of the determination.

Pruning

1. The tree has now been heavily pruned. Only the trunk, which is approximately 800mm at breast height, and the main branch scaffold remain. These branches are still large and heavy, but the risk of damage and injury from branches overhanging the Sund's roof and front yard has been reduced to an acceptable level. The applicants' claim in para 7.2 is thus resolved, as is that in para 7.1 relating to damage from branches overhanging their roof.

Cracked wall

1. The tree is positioned within 600 mm of the low brick wall separating the two properties. The wall is exhibiting significant cracking and uplift, at the point where it is in closest proximity to the base of the tree. The Sunds' photographs showing the large excavated hole commencing about 1.2 metres from the tree, clearly display major structural roots which emerge with an orientation perpendicular to the wall and are directly in line with the cracks in the wall, and with the middle of the tree base. Though the excavation has since been filled in, the respondent's engineer, Mr Suarez, submitted that the roots of the tree were almost certainly responsible for this damage to the boundary retaining wall, and this was accepted by the respondents. Ideally, it would have been useful for the excavation exposing these roots to have continued closer to the tree base, to unequivocally confirm the nexus between the tree's structural roots and the wall damage. Notwithstanding this, the evidence is strong and compelling. In the absence of other trees nearby, on balance of probability, I accept that the tree roots are a cause of the boundary retaining wall damage, and therefore the jurisdiction of the Act is enlivened.
2. The Court next considered large cracks and associated wall separation at the corner of the boundary wall, about 3 metres from the base of the tree. The cracks mainly follow along mortar joins, though some bricks were also split vertically into two pieces. Mr Suarez argued that this cracking was not related to the uplifted cracking closer to the tree, but is instead related to poor construction of this wall, and of the attached retaining wall which runs perpendicular along the front boundary.
3. The street and nature strip slope sharply from east to west. The front retaining wall is approximately 8 metre long. It is leaning forward and is cracked. The lean is most pronounced at the western end where it meets the boundary wall. Mr Suarez argued that this cracking and leaning was the result of inadequate construction methods and/or materials, in combination with the considerable lateral forces exerted against the walls by the large volume of soil that they retained. Considering also that the retaining wall was likely more than fifty years old, Mr Suarez's evidence was accepted and thus no recourse is available under the Act in relation to the corner cracking and the damage to the front retaining wall.
4. Though the jurisdiction of the Act is engaged with respect to the wall cracking close to the tree base, Mr Sund noted that he was not seeking compensation for any wall damage and therefore the claim in para 6.3 is also resolved.
5. Mr Sund advised that replacement of the front retaining wall is a condition of his D.A. approval, and with it the connected boundary wall. In order to build complying foundations, all the large structural roots encountered along the boundary will need to be severed and removed, with some of them located within 800mm of the tree. Mr Sund expressed apprehension that responsibility for tree safety, after the roots were cut, may transfer to him.
6. The natural lean of the tree is towards the north-west, towards both the Bailey's property and the nature strip beyond, while the structural roots to be severed grow in the opposite direction, mainly towards the south-east, and the east. These roots are very important for stability as they anchor the tree in tension against the lean. Though the impact of this root pruning is hard to measure, it is likely to compromise the stability of the remaining tree.
7. In Robson, at [175], Preston, CJ said, "the applicant's concern about likely injury can be but does not necessarily have to be injury to a person who would be on the applicants land. Hence, an application can be made when an applicant is concerned that a tree on adjoining land is likely to cause injury to persons on public land in the vicinity." Ashworth v Joyce [2007] NSWLEC 357 concerns dead trees adjacent to a public reserve. Thus the nature strip is covered by the jurisdiction of the Act. Additionally, orders have been made for the removal or pruning of trees on the basis they may cause injury to persons on the respondent's land, as in Reuben v Lace [2010] NSWLEC 1024.
8. Using the guidance decision published in Yang v Scerri [2007] NSWLEC 592 with respect to injury, the Court considers the risk posed by a tree based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing. Given that major structural roots will be severed, and that the tree has a marked lean and considerable mass, it will be quite likely to uproot and topple over. Though there is little pedestrian traffic, the unpredictability of the tree, combined with the considerable consequences of both injury, and damage, results in the jurisdiction of the Act again being engaged in relation to risk of injury, and the removal of the tree is required.
9. Older trees are generally far less tolerant of changes around their root zone than younger trees, and this species is quite sensitive to root disturbance. Though I cannot ascertain the extent of root pruning that was completed by Mr Rennie prior to building construction, based on the arboricultural expertise I bring to the court, I therefore have misgivings about the advice of Mr Smith and Mr Rennie, with respect to the root excavation for the extension. Similarly, it appears that the Baileys may have changed the soil level around part of the tree root zone, and this would also have been detrimental to tree health. Regardless of these possible contributions to tree decline, there is no evidence to show that either party acted maliciously, and any contribution to this decline was made either under expert advice, and or without awareness of likely negative consequences.

Discretionary matters - s 12

1. In making an order, the Court considers relevant matters in s 12 of the Act.

• (a) The tree is located entirely in the respondent's property.
• (b) The tree is subject to Council's Tree Management controls and permission has been granted for its removal.
• (b3) The tree contributes somewhat to protection from the sun, to landscaping and to the amenity of the respondents' property. Mrs Bailey is sentimental about the loss of the tree and would prefer to retain it as a frame for vines.
• (f) The tree is visible from neighbouring houses and may have intrinsic value to public amenity.

1. Having taken these factors into account, their significance is outweighed by the risk of injury, and thus I order removal of the tree.

Jurisdictional requirements - Part 2A

1. There are a number of key jurisdictional tests that must be satisfied before the Court can make an order under part 2A for any interference with a tree.
2. Section 14A(1) provides: (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)

Hedge in rear yard

1. There are 12 trees noted as a hedge in the application, which were planted by the respondents, along their eastern boundary, in early 2016. These trees were planted either side of a small, established Camellia sasanqua, which shall be deemed part of this hedge. Thus, there are 13, rather than 12 trees, to be considered by the Court, in relation to obstruction of views. Some of these trees have grown above the brushwood fence, to an extent that they obscure the applicants' view of Port Hacking River and the Royal National Park. The brushwood fence had been increased in height by the applicants by 600mm.
2. Trees 1-3 are Blueberry Ash, trees 4-7 are Lilly Pilly's, 8 is the established Camellia, 9-10 are Lilly Pilly's, and trees 11-13 are cultivars of Duranta erecta. Lilly Pilly tree 6 is especially vigorous. I am satisfied that these 13 trees are arranged and spaced in a manner that would be considered to be a hedge in any ordinary understanding of the word. They link to a hedge of established Camellias to the north.
3. While the heights of the trees were not measured at the hearing, it was noted that a number of the Lily Pilly's had been pruned and were shorter than 2.5m. However, the three Blueberry Ash to the north, the majority of the Lily Pilly's in the central section, and the Duranta to the south were clearly in excess of 2.5m. That is, two or more trees in the group have exceeded the requisite height, and thus the jurisdiction is engaged for trees 1-12. This concept has been discussed by Moore SC and Hewett AC in Wisdom v Payn [2011] NSWLEC 1012 at [66] - [67]. With respect to the more mature Camellias, they appear to have been planted about ten or more years before the other plants. They are about two metres apart. The Act sets no requirements that the plants subject to the application must be of the same species or planted at the same time, and therefore s 14A(1) applies to these trees.
4. If any or all of the trees meet the test in s 14A(1), the Court must then consider the tests in s 14E(2)(a)(ii), which states: (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned (ii) are severely obstructing a view from a dwelling situated on the applicant's land,
5. In assessing the severity of an obstruction of a view, the Court has often referred to a planning principle on view sharing published in Tenacity Consulting v Warringah [2004] NSWLEC 140 (Tenacity), and this case was submitted by the applicant's Counsel.
6. As addressed in Tenacity, water views are given emphasis. From the locations noted as V1, V2 and V3 in the application, there are views of Port Hacking River and the Royal National Park. While it is in the middle distance, and represents only a slice of the total view to the south through to the south-east, it is an impressive outlook. Mr Sund submitted that the view regularly captures visitor's attention, that it was highly valued by his family, and would be by most land owners.
7. The first three steps of the four step process in Tenacity are considered relevant to Part 2A. In summary, the first step considers the nature of the views affected: water views are valued more highly than land views, whole views are valued more highly than partial views, and the interface between land and water is valued. The second step considers the part of the property from where the views are obtained - views across side boundaries being more difficult to protect than views from front and rear boundaries, sitting views are more difficult to protect than standing views, and the expectation to retain side views and sitting views is often unrealistic. The third step considers the extent of the impact for the whole of the property and not just the view that is affected - the impact on views from living areas is more significant than from bedrooms, and it is useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.
8. In applying those principles to this matter, the view in contention is a view of water and the interface with the land in the middle distance, across a side boundary, but only by about 20 degrees towards the west from their south facing rear view. Though there are structures, as well as other trees in the distance beyond the boundary, from V1 - V3, when standing, at least half of the available water view is obscured by the respondent's boundary hedge. Due to the variability in the height of the hedge trees, it is clear that the removal of the obstruction will make a major impact to this view. The rooms from which the view is lost are the main open plan living area, and kitchen.
9. While the Court sets a high bar when considering the definition of 'severe', the nature of the view is important. In Haindl v Daisch [2011] NSWLEC 1145, Moore SC and Hewett AC, note at [64]: "It is clear to us, as in other aspects of assessment undertaken by the Court in its merit jurisdictions, that the assessment of severity involves both qualitative and quantitative elements. To give an extreme example, applying the proposition we have earlier described that the view from a viewing location comprises the totality of the outlook from that location, if that view comprises predominantly an unrelieved outlook toward unattractive and blank-walled built form and there is only a limited viewing corridor or limited viewing corridors past that built form to some attractive more distant elements, whether natural or built and whether iconic or not, a significant reduction of the attractive elements by trees on an adjoining property may well constitute a severe contextual obstruction of the view from that viewing point."
10. In this context, therefore, I am satisfied that the restriction of this view should be considered a severe obstruction.
11. If the impact obstructing a view from a dwelling is severe, the Court must then consider s 14E(2)(b), which states: (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.
12. In order to determine the balance inherent in this subsection, consideration of the matters in s 14F is required. This allows for a degree of discretion in the making of orders under s 14D, but only if the jurisdictional tests in s 14A(1) and s 14E(2)(a)(ii) are satisfied.
13. Trees 1-5 do not fall under the Court's jurisdiction as they do not severely restrict the applicants' view. They do, however, make a positive contribution to both the applicants' and respondents' privacy. Trees 12 and 13 also fail to severely restrict the applicants view, as there are trees behind them, which, in the absence of trees 12 and 13, would impede the applicants' view.
14. Similarly, with respect to trees 6-11, the water view below a height of about 400 mm above the top of the brushwood boundary fence is already restricted by the roofs of houses and the canopies of distant trees, when viewed from V1-V3 in the applicants' kitchen and family room. Again, this foliage coverage between the top of the brushwood fence, up to 400mm above it, provides a useful contribution to both parties' rear yard privacy.
15. With respect to s 14F(c), at least two of trees 6-11 grew to a height of 2.5 metres or more during the period that the applicant has owned their land, and interference with the trees would not be subject to consent under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 (s 14F(d). Additionally, pruning the height of these trees, as ordered, is unlikely to have a marked impact on their growth or health, given that the species selected are commonly used for hedges that are regularly pruned (s 14F(k)).
16. As per s 14F(l), the trees contribute to privacy, landscaping and to a minor extent to protection from sun and wind, but I am not satisfied that pruning, as ordered, will have a marked impact on the respondents, with respect to these considerations.
17. With respect to s 14F(n), there was ample opportunity for the respondents to plant trees further to the west of their boundary rather than along the hedge, thus providing the privacy they sought for their rear deck, without obstructing the applicants' water views. In support of this, Mr Sund submitted that the respondents boundary planting had breached the conditions of their 2013 D.A approval (7B on page 5), which required tree planting to be "not within 3 m of a building or proposed building."
18. Overall, therefore, I am not satisfied that the sum of these considerations outweigh the applicants' interests in having this obstruction removed, and orders are therefore appropriate for both pruning and maintenance of the impacted section of the hedge.
19. The applicants also seek orders under s14D(2b) which requires the taking of specified action to restrain or prevent the obstruction of sunlight or of a view, caused by a tree growing adjacent to a window high up in their western family room wall. This relates to the tallest of the established Camellias at the northern edge of the hedge. Currently this tree is barely visible through the high west facing window, and could not be considered to be having even a moderate impact on views or access to sunlight. This claim is thus dismissed.
20. On Monday 1st April, 2019, I reopened the hearing with parties' consent, under Rule 36.15(2) of the Uniform Civil Procedures Rules 2005. I vacated my earlier orders delivered on site, and now make new orders to add clarity, particularly to the pruning aspect. The parties had the opportunity to respond to these new orders.
21. The orders of the Court are: 1. The respondents are to remove the dead Eucalyptus racemosa (Narrow leaved scribbly gum) in their front yard to near ground level and grind its stump to at least 20cm below ground level. The tree is to be removed into the respondent's property and/or the nature strip below, and the required works are to be conducted during reasonable working hours. Should these works also require access onto the applicant's land, this access is subject to 48 hours written notice being provided. This tree removal shall be undertaken by AQF level 3 qualified arborists with appropriate Public Liability insurance. The tree removal shall comply with SafeWork Australia 'Guide to managing risks of tree trimming and removal work', 2016, and the Workcover NSW 'Code of Practice for the Amenity Tree Industry', 1998. This work shall be completed within 60 days of the date of these orders, and at the respondent's expense. 2. The respondents are to maintain the trees 6 - 11 of the hedge, which is growing adjacent and close to the rear yard side boundary that they share in common with the applicant, for the life of the hedge, at an even height of approximately 400mm above the top of the brushwood boundary fence. 3. The respondents, at their expense, are to prune the height of the hedge within one week of the 15th of May, the 15th of September, the 1st of December, and the 15th of February each year. The initial pruning is to be completed within 10 days of the date of these orders. 4. If the hedge protrudes beyond the boundary line, into the applicant's land, the applicant may prune it back to the boundary, at the applicant's expense. Any foliage resulting from such boundary line pruning, and any foliage that falls onto the applicant's land in the process of pruning for height, may be bundled up and dropped into the respondent's property. The applicant shall ensure that the hedge is not damaged in this process. 5. The work is to be completed in accordance with the Workcover NSW Code of Practice for the Amenity Tree Industry (1998).

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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: 16 April 2019