Van Hoorn v Sullivan & anor

The damage 9Photographs included in the application claim form show leaves and other debris in the pool, on the terrace and in the skimmer box. The photographs are not dated. 10Tax invoices included in the application claim form show that the pump system and sand filter were serviced in November 2010. This included the replacement of the sand in the sand filter and the unblocking of the impellor. A note on the description of the woks carried out on 16/11/2010 states: 'Skimmer socks may stop this from happening again.' While the invoices make no reference to what had caused the blockage, I accept that tree debris was most likely a cause. 11The applicant contends that the fine leaflets from the Leopard Tree 'disintegrate' in the pool and block the sand filter by forming a 'slimy cake' that is impossible to remove by backwashing. 12The applicant contends that pruning the tree away from his property would be insufficient due to the direction of the prevailing winds that would continue to blow leaves onto his property. Apart from leaves in the pool, the applicant states that he spends time most days cleaning leaves from the terrace and pool surrounds. 13The applicant included a number of press clippings/ information from the internet on Leopard Trees from Australia and elsewhere in the world to support his application to remove the tree. This includes an article from Gympie in Queensland regarding the council's decision to remove the trees because "they were messy, a safety hazard and damaged the footpath".

The Court's jurisdiction 14In applications under Part 2, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order under this Part unless it is 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.

Consideration 15In putting the applicant's case at its highest, I am prepared to accept that leaves and other debris from the Leopard Tree damaged his pool filtering system. Therefore as one element of s 10(2) is satisfied, the Court's jurisdiction to make orders under s 9 of the Act is engaged. 16Section 9 enables the Court to make any orders it thinks fit in the circumstances of the application; these are not necessarily the orders sought by either of the parties. This requires consideration of a number of discretionary matters in s 12 of the Act. The relevant matters are:

• The tree is wholly located on the respondents' land with some overhang above the applicant's land;
• No-one, including the parties' legal representatives, was able to inform me of any provisions under the Hastings-Port Macquarie Council's Tree Preservation Order (or equivalent) that either protected the tree or provided the applicant with a means of controlling overhanging vegetation;
• While not sought by the applicant, selective reduction pruning of some overhanging elements of the tree, if carried out in accordance with AS4373:2007 Pruning of Amenity Trees and with any council controls, would cause no significant harm to the tree;
• The tree is the central specimen tree in the respondents' back garden and a component of the landscape design. The respondents value the tree for its aesthetic features and for the privacy it affords their property, the respondents' property being down slope of the applicant's property. It contributes to the scenic value of the land on which it is growing but makes no significant contribution to public amenity; and
• The applicant states that he cleans the skimmer box weekly or more frequently depending on the wind and the extent of leaf drop. He says he cleans the pump filter every month or so.

Findings 17 While the leaves and other debris from the tree have been demonstrated to block the pool filtering system to a point where it required professional servicing, on the evidence before me, this level of servicing appears to have happened nine years after the pool was installed. I am not satisfied that anything more than the regular maintenance of the skimmer box and pool pump filter, as currently carried out by the applicant, is necessary. On the evidence before me I am not satisfied that the removal of the tree is justified. 18While the applicant included printed material regarding the alleged "nuisance" caused by this species of tree in other places and circumstances, this information is not relevant to the particular circumstances of this matter. 19In regards to the potential risk injury, on the evidence before me, I am not satisfied that this is likely and as the test in s 10(2) is not met, the Court has no jurisdiction to make an order. The fruits are quite large and easily seen and therefore avoided. The extent of branch overhang over the paved area is minor. However, if I am wrong in this, the Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. 20There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter. 21Therefore the Part 2 application is dismissed.

The Part 2A application 22The applicant contends that 12 trees growing along the rear of the respondents' property severely obstruct views form his dwelling and sunlight to one of the windows. He seeks orders for the trimming of the 12 trees to a height of about 2.5m. 23The respondents do not wish to prune the trees to this height as they value the privacy they afford their property.

Jurisdictional tests 24In applications under Part 2A, there are a number of sequential jurisdictional tests that must be satisfied before the Court can consider what orders it could make under s 14D of the Act. The sequence is described in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 as a pathway with a series of gates - the gates being the jurisdictional tests.

Does Part 2A apply to the 12 nominated trees? 25Section 14A(1)(a) states that Part 2A applies only to groups of two or more trees that are planted, whether in the ground or otherwise, so as to form a hedge. If they comply, then s 14A(1)(b) requires the trees to be at least 2.5m tall. 26The 12 trees in question are planted along the respondents' boundary fence to the south of the Leopard Tree. They comprise, from north to south, two unidentified shrubs, about nine camellias, and one Golden Penda (Xanthostemon sp). They are all in excess of 2.5m tall. 27In Johnson v Angus [2012] NSWLEC 192, Preston CJ provides a detailed analysis of the construction of s 14A(1)(a). In essence, the trees must be planted - deliberately set in the ground and not self-sown, with the intent of forming a hedge. In Wisdom v Payn [2011] NSWLEC 1012 at [45] the Commissioners consider that there must be a degree of regularity and linear arrangement of the trees such that the impression is that in the ordinary understanding of the word 'hedge', they would be perceived as a hedge. 28In this case, the trees were all planted over the one weekend 15 years ago. They are planted close together and the 2 unidentified shrubs and the camellias have been pruned in a rectilinear fashion that would readily be perceived as being a hedge. Therefore, I am satisfied that Part 2A applies to trees 1-11. 29The applicant submits that Tree12, the Golden Penda, should be included as it is similarly arranged and contiguous with the other trees. The respondents contend that the tree is part of a separate garden area. 30In putting the applicant's case it its highest, I am satisfied that trees 1-12 are trees to which Part 2A applies.

Section 14E(2) 31The next jurisdictional test is in s 14E(2) of the Act. This states: (2) The Court must not make an order under this Part unless it is satisfied: (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. 32Therefore, the Court must first determine whether there is a severe obstruction of sunlight to windows of a dwelling or of a view from a dwelling, and then if there is, consider the balancing of the parties' interests. Only if there is a severe obstruction, and only if the applicants' interests outweigh other considerations, can the Court consider what orders it should make under s 14D. This in turn requires consideration of a number of discretionary matters under s 14F. 33Relevant here is the use of the word 'are' in s 14E(2)(a) which requires that the trees concerned be severely obstructing the sunlight or the view at the time of the hearing. This is discussed in Granthum Holdings Pty Ltd v Miller [2011] NSWLEC 1122 at [43]-[42]. 34The use of the word 'severely' sets a high bar in terms of the extent of the obstruction caused by any of the trees to which Part 2A applies. The Macquarie Dictionary defines 'severe' as harsh, harshly extreme, grave, causing discomfort or distress by extreme character or conditions...hard to endure... Therefore, the obstruction must be considerable.

Obstruction of sunlight 35The only window in contention is the south-east facing window of a ground level billiard room. The applicant contends that one to two hours of early morning sunlight is obstructed by a number of the camellias. He would be satisfied if they were pruned to 2.5m.

Findings - sunlight 36I am satisfied that there is a severe obstruction of sunlight to this window of the applicant's dwelling as a consequence of some of the trees to which the Part applies. Therefore I must consider s 14E(2)(b) and in turn, relevant matters in s 14F. 37In this case the applicant's dwelling is approximately 2m from the boundary fence and therefore form the trees. The window is relatively small - about 1m x 0.8m with a south-easterly aspect. In the absence of the camellias, I agree that the window would most likely be capable of receiving one to two hours of very early morning sun, that is, soon after sunrise. However, this would only be to one corner of the room. The room houses a pool table. The main windows/ glass doors in this room face north-east and are below the extensive first floor deck and main living area of the dwelling and are not part of the application. 38Absent any arboricultural or horticultural evidence from an independent expert, with the expertise I bring to the court, I consider that pruning the trees to 2.5 m would have a detrimental impact on the health and appearance of the trees. It would also significantly reduce the value of the trees as a screen between the applicant's more elevated property and the respondents' dwelling. 39On balance, I find that the interests of the applicant in having the obstruction of sunlight remedied do not outweigh the undesirability of interfering with the trees particularly given the aspect of the window, the limited sunlight it is capable of transmitting to a small portion of the room and the use of the room as a secondary recreation area. 40Therefore this element of the application is dismissed.

Obstruction of views 41The applicant contends that views of a valley and bush reserve to the east and south are severely obstructed by the respondents' trees. The nominated viewing areas are V1 - through W1 in the billiard room and V2, the upstairs rear deck of the dwelling. 42Based on my observations made during the on-site hearing, the potential view from V1, absent the trees, would be principally of the respondents' dwelling and not district views of the reserve. The solar panels on the roof of the respondents' dwelling were clearly visible through the trees. 43While the view of the respondents' dwelling could be said to be severely obstructed by the camellias, for similar reasons stated above, I do not find s 14E(2)(b) satisfied and the Court has no jurisdiction to make any orders for any intervention with the trees on the basis of V1. 44In regards to V2, the applicant and his family frequently use this area. He contends that, especially from a seated position, that the views of the valley are severely obstructed by the respondents' trees, in particular the Golden Penda. 45The Court's interpretation of the words 'a view' is discussed at length in Haindl v Daisch [2011] NSWLEC 1145. At [26] the Commissioners in that matter state: 26 However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the dwelling location and does not permit some slicing up of that outlook - thus requiring separate assessment of the severity of the view from a particular viewing location on some incremental, slice by slice basis. 46My observation at the time of the hearing, from both sitting and standing positions is that only a very small portion of the potential views available from that deck are obstructed by any of the trees in question. 47The only portion that could be said to be severely obstructed by any of the trees is the view to the south around the edge of the dwelling. This view is obstructed by the Golden Penda and the view is likely to be dominated by residential dwellings. 48From a sitting position I was able to see clearly the district views of the reserve and ridgeline in the distance. The foreground view is of residential dwellings. In my opinion, the obstruction is minor. 49In maintaining the Court's consistent approach in assessing the view loss, in particular, considering the full extent of the view available from V2, in my opinion, one small portion of severe obstruction does not satisfy s 14E(2)(a)(ii). However, if I am wrong in this, I do not consider s 14E(2)(b) to be satsified in that I do not consider the applicant's interests in having that small element of the view restored outweighs the undesirability of pruning the Golden Penda to 2.5m. With the expertise I bring to the Court, I consider this would have a detrimental impact on the health, structure and appearance of the tree. 50Therefore, this element of the application is also dismissed.

Orders 51As a consequence of the foregoing, the Orders of the Court are: (1)The application is dismissed.

Judy Fakes 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: 28 June 2013