28 Carnegie Circuit Pty Ltd v Mulcahy

[2024] NSWLEC 1353

Land and Environment Court

New South Wales

Medium Neutral Citation:

28 Carnegie Circuit Pty Ltd v Mulcahy [2024] NSWLEC 1353

Hearing dates:

25 March 2024

Date of orders:

28 March 2024

Decision date:

28 March 2024

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders are:

(1) Within 90 days of the date of these orders, the Respondent, at her own cost, is to engage a licenced builder with all appropriate and up to date insurances, and complete the following works to the front fence along the south-west frontage of 28 Carnegie Circuit, Chifley (the Site):

(a) Remove the aluminium slatted metal work between the pier in the south-west corner, and the pier adjoining the metal gate;

(b) Demolish the pier in the south-west corner;

(c) Rebuild the pier, to the same dimensions, 200mm to the east of its existing location;

(d) Redo the acrylic render;

(e) Install new aluminium slatted metalwork between the pier in its new location and the pier adjoining the metal gate; and

(f) Make good the site.

(2) The works referred to in order (1) are to be compliant with all relevant Australian Standards.

(3) The Respondent is to ensure the finish of the works referred to in order (1) above are consistent with the remainder of the front fence. In the event the same finish is unable to be achieved, the Applicant is to provide its consent to any alternative finish.

(4) The Applicant is to ensure the Site is made accessible for the works referred to in order (1) to be carried out upon receiving 48 hours’ notice by the Respondent sending an email to the Applicant’s leasing agent at [email protected]

(5) The works referred to in order (1) are to be carried out during normal daytime working hours and in a manner that does not affect the occupier’s use of the Site.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Cypress trunk damaging front boundary fence – apprehension of future damage and risk of injury – Orders by Consent

Legislation Cited:

Dividing Fences Act 1991, s 13A

Environmental Planning and Assessment Act 1979

Trees (Disputes Between Neighbours) Act 2006 Pt 2, ss 7, 8, 9, 10, 12

Cases Cited:

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Randwick Development Control Plan 2013

Category:

Principal judgment

Parties:

28 Carnegie Circuit Pty Ltd (Applicant)
Karen Elizabeth Mulcahy (Respondent)

Representation:

Counsel:
L Nurpuri (Applicant)
R Mulcahy (Agent) (Respondent)

Solicitors:
JGP Lawyers (Applicant)

File Number(s):

2024/8347

Publication restriction:

Nil

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. COMMISSIONER: A Cupressus macrocarpa ‘Brunniana’ (Golden Monterey Cypress) (the tree) is growing in the front yard of a property in Chifley, which the respondent, Karen Elizabeth Mulcahy, has owned and occupied since 1985. The tree, said to be more than 50 years old, was planted at the front of the property relatively close to a side boundary shared with the applicant, 28 Carnegie Circuit Pty Ltd. The applicant claimed the tree has caused damage to a masonry wall along its front boundary, presents a risk of serious injury or death, and makes no environmental contributions.

2. The tree is about 11m tall with a canopy spread averaging about 11m, and trunk diameter at breast height (DBH) of about 750 mm. Growing close to a busy street, the tree’s dense canopy is highly visible to the local community.

3. Following an initial approach about removing the tree from the applicant’s property agent, Ms Mulcahy received a letter requesting tree removal from Mr Pappas of JGP Lawyers in November 2022. Mr Ross Mulcahy, the respondent’s husband who is a licenced builder, replied with a proposal for relocation of the fence’s corner post and repair of the fence. He requested a site meeting with Mr Pappas to clarify the works, but the request was denied.

4. The respondent contended that development consent from Randwick City Council (Council) in 2015, pursuant to which the applicant’s front wall was erected, specified the tree was to be retained and Condition 15 of the development approval detailed comprehensive tree protection requirements.

5. In mid-February 2023, Mr Mulcahy sent Mr Pappas a scope of works from S&G Stathis Building Pty Ltd for the proposed wall repairs and advised that an application for tree removal in 2007 had been refused by Council. Nonetheless, the applicant continued to reject the respondent’s proposal in favour of tree removal and on 20 September 2023, Mr Pappas advised the respondent of his instructions to lodge an application in the Land and Environment Court. 28 Carnegie Circuit Pty Ltd subsequently made an application on 8 January 2024, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking removal of the tree and repair of wall damage.

The hearing

6. At the onsite hearing, the applicant was represented by Ms L Nurpuri of Counsel and Mr Pappas, while the respondent was represented by Mr Mulcahy, as her Agent. The applicant relied on an engineering report of Mr Sobhi of Tyrrells Building Advisory, dated 19 March 2024 (Exhibit C) and an affidavit of Vladimir Goryachev, sworn on 7 March 2024 (Exhibit D).

7. The tree and fence were readily accessed for a comprehensive assessment. I inspected damage to the fence on the applicant’s land and considered the risk of injury, after which the parties presented submissions and negotiated.

8. The applicant’s proposed orders are:

1. That the respondent remedy, restrain or prevent damage to the applicant’s property as a consequence of the (respondent’s) tree;

2. That the respondent rectify the damage to the applicant’s property;

3. In the alternative, that the applicant be authorised to remedy, restrain or prevent damage or further damage to property;

4. That the respondent’s tree be removed and replaced with a new tree;

5. The applicant’s costs associated with the carrying out of these orders under s 9 of the Trees Act, be paid by the respondent;

6. Any order the Court deems fit.

9. The applicant, at question 17 of the Tree Dispute Claim Details (Exhibit B), proposed a further order for rectification of damage to the common boundary fence, pursuant to s 13A of the Dividing Fences Act 1991 (DF Act). The respondent contended that the jurisdiction of the DF Act only applied if the tree has damaged a fence on the boundary between the applicant’s and the respondent’s land, whereas the fence the subject of the application was a front fence, not a common boundary fence. On this basis, I concur with the respondent that the jurisdiction of the DF Act does not apply in this case.

10. The respondent’s proposed alternative orders are:

1. That the application be dismissed.

2. In the alternative:

3. The application be granted to the extent of the following orders.

4. Within 120 days of the date of these orders, the respondent is to engage and pay for a licenced builder (which may be the respondent’s husband) to undertake the works specified in the Scope of Works dated 13 March 2023 issued by S&G Stathis Building Pty Ltd.

5. The respondent is to give the applicant 7 days’ notice of the works in Order (2b).

6. The applicant is to allow all access for the works in Order (2b) during reasonable hours of the day.

7. Such other order that the Court deems fit.

Jurisdictional requirements

11. With respect to s 7 of the Trees Act, 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. Both parties own their respective properties, and the applicant claimed that Ms Mulcahy’s tree is damaging its wall.

12. Section 8(1) of the Trees Act requires the applicant to serve notice of the application and the orders sought on the respondents pursuant to subs (a), and Council pursuant to subs (b), more than 21 days prior to the proceedings. Mr Mulcahy attended the Registrar’s directions hearing on 20 February 2024 and an affidavit of Service of James Pappas, dated 21 February 2024, confirmed notice of the application to Council. Therefore, s 8 of the Trees Act is satisfied.

13. Section 9 of the Trees Act provides the jurisdiction of the Court to make a wide range of orders.

14. Section 10 of the Trees Act details 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:

1. that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

2. if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

15. The applicant provided records of repeated tree removal requests to the respondent back to 2022, from its property agent and legal representative. This evidence is sufficient to satisfy s 10(1)(a) of the Trees Act, which requires the applicant to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated. Notice of the application was provided in accordance with s 8, therefore s 10(1)(b) of the Trees Act is satisfied.

16. The next major test that is posed, by s 10(2) of the Trees Act, states:

(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.

Current and future wall damage

17. I was satisfied that the corner of the applicant’s front fence had been cracked and heaved by the respondent’s tree and levered out of alignment. Consequently, s 10(2)(a) of the Trees Act is engaged.

18. The jurisdiction of the Trees Act covers damage likely to be caused by a tree in the near future, and in Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year.

19. Though the tree was mature, and its rate of trunk thickening would be relatively slow, the tree appeared to be exerting considerable pressure on the masonry wall, such that without intervention, further damage is likely in the near future. Therefore, s 10(2)(a) of the Trees Act is again engaged.

Risk of injury

20. The applicant contended that wall collapse was imminent and dangerous adjacent to the street. However, I am not satisfied that wall damage and pressure from the tree presented a genuine risk of injury to persons. Rather, I am persuaded by the response to question 4 at p 3 of the Respondent’s Statement of 20 March 2024 (Respondent’s Statement), “that the upper section of brick pier has cracked and moved but is being firmly held in place by weight of the (subject) tree”, and “can only be removed by jackhammer in order to be repaired/replaced”.

21. Nonetheless, s 10(2) of the Trees Act is satisfied as only one of the four conditions comprising s 10(2)(a) and s 10(2)(b) must be met to engage the jurisdiction.

22. If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Trees Act.

Discretionary matters – Trees Act s 12

23. The tree is located near the front of the applicant’s property close to the common boundary. The tree’s canopy spreads over part of both parties’ front yards (s 12(a)).

24. Council permission is required for the tree’s removal under Part B5, Preservation of trees and vegetation, in Randwick Development Control Plan 2013, the jurisdiction of which arises from the Environmental Planning and Assessment Act 1979 (EP&A Act). A tree removal application was refused by Council in 2007 (s 12(b)).

25. Section 12(b2) considers the impact any pruning would have on the tree. Pruning of the tree to remove deadwood and damaged minor branches may improve the aesthetic appearance of the tree, but I was not satisfied that damage or injury from branch failure was likely. There is no restriction or remedy available under the Trees Act for tree branches overhanging neighbouring properties if they are not also causing damage. This is addressed at [171] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), where Preston CJ says:

“However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not “damage to property on the land” within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour’s land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land, they will not be actionable under s 7.”

26. While the application failed to acknowledge that the tree provided any environmental contributions, the Respondent’s Statement, at page 4, notes that the tree contributes to privacy, landscaping, garden design, historical or heritage values, protection from the sun, wind, noise or smoke, and the amenity of the land on which the tree is situated (s 12(b3) and 12(c)).

27. The respondent said the tree contributed to the local ecosystem and biodiversity by “supporting wildlife” and provided intrinsic value to public amenity by softening the areas’ “urban streetscape” (s 12(d) and 12(f)).

28. Section 12 (h) covers “anything, other than the tree, that has contributed, or is contributing, to any (such) damage or likelihood of damage” to the applicants’ property, “including any act or omission by the applicant and the impact of any trees owned by the applicant, and any steps taken by the applicant or owner of the land on which the tree is situated to prevent or rectify any such damage”.

29. Though the tree alone was causing the applicant’s wall damage, Mr Mulcahy noted steps taken by the owner of the land on which the tree is situated to prevent such damage. Mr Mulcahy contended he warned the builder who installed the wall about the requirement for the tree’s preservation and that insufficient clearance was being provided to allow for growth in girth of the tree’s trunk (s 12(h)(i)).

30. At s 12(j), with respect to such other matters as the Court considers relevant in the circumstances of the case, Mr Mulcahy submitted that the damage to a small part of the front boundary fence can be resolved with minor modifications to accommodate the tree at a reasonable cost and without detracting from the fence’s appearance or function.

31. With the benefit of Mr Mulcahy’s on-site explanation of his proposal, the applicant accepted the alternative resolution which provided for the tree’s retention. With the finalisation of minor specifications, the parties reached agreement and soon after the hearing provided Orders by Consent.

Conclusion

32. I am satisfied that the tree caused damage to the applicant’s masonry front wall. Considering the pressure from the tree, and the wall’s mortar having sheared, I am also satisfied that near future damage is likely. Thus, s 10(2) of the Trees Act is engaged.

33. A premise of the Trees Act is that trees provide ecological services and environmental benefits for individuals and for the broader community. When s 10(2) is engaged in applications under Pt 2, this premise is reflected in the requirement of the Court to consider relevant attributes and contributions of the tree at s 12 of the Trees Act, prior to finalising orders. A tree’s ‘value’ is a function of obvious characteristics such as its size, age, public amenity, and useful life expectancy along with more subjective factors such as aesthetics, contribution to a landscape, or historical associations.

34. The Cypress tree is fairly large and of sound health and structural condition. It is highly visible and aesthetically appealing to the local community. Considering such value, it is imperative for the Court to consider and prefer options that retain the tree’s benefits whilst mitigating damage by the tree. Simultaneously, the Court is hesitant to impose a remedy on the applicant’s land that may be to the applicant’s detriment. In this situation, it was gratifying that the applicant came to appreciate that the damage could be “resolved with minor modifications to accommodate the tree without detracting from the fence’s appearance or function”.

35. The applicant satisfied the requirements of the Trees Act and Orders by Consent submitted to the Court were lawful for the Court to make.

Orders

36. The Court orders that:

1. Within 90 days of the date of these orders, the Respondent, at her own cost, is to engage a licenced builder with all appropriate and up to date insurances and complete the following works to the front fence along the south-west frontage of 28 Carnegie Circuit, Chifley (the Site):

1. Remove the aluminium slatted metal work between the pier in the south-west corner, and the pier adjoining the metal gate;

2. Demolish the pier in the south-west corner;

3. Rebuild the pier, to the same dimensions, 200mm to the east of its existing location;

4. Redo the acrylic render;

5. Install new aluminium slatted metalwork between the pier in its new location and the pier adjoining the metal gate; and

6. Make good the site.

2. The works referred to in order (1) are to be compliant with all relevant Australian Standards.

3. The Respondent is to ensure the finish of the works referred to in order (1) above are consistent with the remainder of the front fence. In the event the same finish is unable to be achieved, the Applicant is to provide its consent to any alternative finish.

4. The Applicant is to ensure the Site is made accessible for the works referred to in order (1) to be carried out upon receiving 48 hours’ notice by the Respondent sending an email to the Applicant’s leasing agent at [email protected]

5. The works referred to in order (1) are to be carried out during normal daytime working hours and in a manner that does not affect the occupier’s use of the Site.

6. Each party pay their own costs.

………………………….

J Douglas

Acting Commissioner of the Court

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Decision last updated: 24 June 2024