Vethanayagam v Nelson

Land and Environment Court (NSW)|2023-09-28

The applicant adduced evidence from another neighbour, Sam Andrews, who has a right-of-way over the respondents' driveway for access to his property. Mr Andrews' eyesight capabilities are less than 100%. He stated that he almost hit another car while driving along the driveway, his vision, or his ability to manoeuvre, restricted by the trees. Dr Vethanayagam submitted that such an incident is likely to recur, being further justification for removing the trees. He submitted that Mr Andrews has a right to remove the trees should he wish.
The driveway is the usual width of a driveway, with enough room either side for cars to pass each other in opposite directions. Even if an accident should occur here, and injury result, I do not accept that the trees would be its cause.

Dr Vethanayagam submitted that the trees are so close to the wall that he could not fit a wheelbarrow between the trees and the wall. The need for this was not clear, but he further submitted that the trees prevented him inspecting or maintaining the wall. This would not be a reason for orders under Pt 2 of the Trees Act, where the jurisdictional tests are limited to damage or injury caused by trees. As the applicant's other issues do not relate to damage, he is not prevented by s 5 of the Trees Act from bringing an action in nuisance elsewhere.

I am not satisfied that the trees have caused, or are likely in the near future to cause damage to the boundary wall, nor that they are likely to cause injury. Therefore, the Court cannot make orders in these proceedings and there is no need for me to consider the matters at s 12 of the Trees Act.

(1) The application is refused.

(2) The exhibits are returned, other than Exhibit A.

(Disputes Between Neighbours) Act 2006

Findings

I find the trees are not likely to cause damage to the wall in the near future. In Yang v Scerri [2007] NSWLEC 592, at [14], the Court established a principle that 'the near future' (at s 10(2)(a) of the Trees Act) might best be considered in tree disputes as a period of 12 months. The Court has consistently relied upon this principle. Despite Dr Vethanayagam's argument that a longer period should apply in this matter, I find there are no exceptional circumstances here that would justify that.
Regarding the likelihood of future damage, evidence relied upon by the applicant is theoretical only - there is nothing to satisfy the Court that damage is likely in the near future. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Craig J discussed at [38] the need for a causal nexus to exist between the tree and the damage to, on the balance of probabilities, satisfy the test at s 10(2)(a) of the Trees Act. Such a nexus has not been demonstrated here. The tradition of engineers, when assessing the likelihood of future damage, relying on documents such as AS2870 and the CSIRO document referred to earlier, was discussed in Fang v Li & anor [2017] NSWLEC 1503 (Fang) at [48]-[57]. The principle at [59] of Fang sets out the type of investigations and evidence that might assist a party to demonstrate a causal nexus, where one exists.
I accept Mr Mackney's evidence that the trees are unlikely to cause damage if maintained at their current size.
On the evidence before me, and relying on my own expertise and experience, I am not satisfied that the trees are likely to cause damage in the near future.

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Judgment (4 paragraphs)

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