Aldridge v Pymble Golf Club

[2008] NSWLEC 1467

Land and Environment Court

of New South Wales

CITATION:	Aldridge & anor v Pymble Golf Club [2008] NSWLEC 1467
PARTIES:	APPLICANTS Gavin & Sue Aldridge RESPONDENT Pymble Golf Club
FILE NUMBER(S):	20812 of 2008
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Trees (Neighbours) :- Likely in the near future
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Yang v Scerri [2007] NSWLEC 592
DATES OF HEARING:	20 October 2008
EX TEMPORE JUDGMENT DATE:	20 October 2008
LEGAL REPRESENTATIVES:	APPLICANTS First applicant in person RESPONDENT Mr P English, solicitor Surry Partners

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

20 October 2008

20812 of 2008 Gavin & Sue Aldridge v Pymble Golf Club

JUDGMENT

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

1 COMMISSIONERS: Several hundred metres north of the clubhouse, along a fairway boundary, Pymble Golf Club have planted a number of new trees as part of the club's landscaping plan. The trees which have been planted adjacent to the Aldridges’ property are a number of Evergreen Ash trees and a number of Dawn Redwoods. A row of these trees with staggered spacings have been planted so that some of the trees are within 1 m or so of the boundary between the golf course and the Aldridges’ property whilst others are some 4 m or so from the boundary. Mr and Mrs Aldridge have applied for orders seeking the removal of all of the trees, of both species, within 3 m or so of the fence between the golf course and their property.

2 The fence between the properties is delineated by a powder-coated metal fence on the top of a small sandstone retaining wall which was built some 40 or so years ago. The maximum height of this retaining wall is of the order of 700 mm above the level of the golf course.

3 The Aldridges have, on their property, a croquet lawn and a small brick shed immediately adjacent to the fence.

4 There is no agreement between the parties whether the boundary between the two properties is delineated by the retaining wall or not. However, we are satisfied that, even if the retaining wall is wholly or substantially on the club’s side of the boundary, damage to the retaining wall would inevitably lead to damage to the Aldridge's property. As a consequence, the Court has jurisdiction to entertain the application on the preliminary question of whether there is an appropriate topographic connection between two properties and the issues which Mr Aldridge canvasses.

5 All of the trees which have been planted by the golf club in the vicinity of the Aldridges’ property were reasonably advanced specimens at the time of planting. Whilst there is a dispute about the extent to which the trees, particularly the Redwoods, have grown in the period since they were planted, we do not consider that anything turns on this fact being established precisely. There is no dispute that the trees have grown from, at planting, a height of 2 m or a little under to something approaching 2.5 m or a little over for the Redwoods and somewhat less for the Evergreen Ashes.

6 Mr Aldridge, when addressing the tests in s 10(2) of the Act, did not suggest that the trees had caused damage to his property or were currently causing any damage. His concerns arise from what he considers to be the risk of the future damage and the risk of injury.

7 Mr Aldridge contends that with the trees, particularly the Redwoods, will grow with such vigour and to such a height that their branches will intrude into his property occasioning a risk of injury to his household and his pets; will cause damage – through their root systems – to agricultural drainage lines behind the retaining wall; and, by overshadowing, will cause damage to the grass on his croquet lawn. He has similar concerns relating to the Evergreen Ashes.

8 We are obliged to consider, before we have jurisdiction to deal with the matter, whether there has been some attempt between the parties to resolve the matter. This is required by s 10(1) of the Act. During the course of the hearing, we adjourned for a short period of time to enable the parties to hold discussions and see if the matter could be resolved but resolution could not be reached. We are, therefore, are satisfied that that jurisdictional prerequisite is met.

9 At the present time, none of the trees is growing in a fashion where any of the branches are over the Aldridges’ property to any significant extent – taking the location of the boundary line at the most advantageous construction to Mr and Mrs Aldridge. Mr Aldridge has provided evidence of the size of these Redwoods at semi-maturity. We accept this evidence that these trees will grow to both substantial height and girth (with the necessarily accompanying substantial root zone). Mr Aldridge’s submission is, effectively, that these are the wrong trees in the wrong place.

10 However, the matter which we are obliged to determine is whether either of the remaining tests in s 10(2) of the Act is satisfied before we have jurisdiction to consider whether or not we should make any orders with respect to these trees.

11 With respect to the issue of injury to any person, we are not obliged to intervene if an injury might possibly be occasioned at some remote time into the future. If this were the case, as here, there would be no prudent requirement to order interference with the trees.

12 In any event, we do not consider that it is likely that the trees, particularly the Redwoods, will cause injury to any person as proper management of the trees by the golf club that would eliminate such a risk if it were to arise.

13 With respect to damage to the Aldridge's property, we are required to be satisfied that one such damage is likely in the near future. Although, particularly with respect to the Redwoods, it would be reasonable to assume that such damage might be likely (and we proceed on that basis) the question we also need to address is whether or not such damage would likely be occasioned in the near future.

14 Although we are not bound by the decision in Yang v Scerri [2007] NSWLEC 592, the Court's decision in that case published a rule of thumb that in the near future constituted a period of 12 months or so from the date of hearing of an application. Given the present size of the trees, including the Redwoods, and accepting the rate of growth Mr Aldridge proposes based on what he says was the growth which has occurred in the last 12 months or so, we could not be satisfied that any damage would be caused to the Aldridge's property by those trees in the next 12 month or so.

15 We cannot, therefore, conclude that there is any damage likely to occur to his property in the near future.

16 However, we observe that this decision is made on the facts and circumstances that presently apply. Mr Aldridge is not precluded from making some further application to the Court, under the Act, if those circumstances change and he is able to demonstrate actual damage or likelihood in the near future of damage on some future occasion.

17 Any consideration by the Court of any future application will be made on the facts and circumstances that then apply – but it may be relevant, on such future occasion, for those hearing any such application to have regard to the fact that the golf club has now clearly been put on notice of Mr Aldridge's concerns – particularly about the Redwood trees. However, because of the findings we have made concerning the relevant tests under s 10(2) of the Act not being satisfied, Mr Aldridge’s present application must be dismissed.

Tim Moore Peter Thyer

Commissioner of the Court Acting Commissioner of the Court