Anvari v Strata Plan 12974

[2016] NSWLEC 1004

Land and Environment Court

New South Wales

Medium Neutral Citation:	Anvari v Strata Plan 12974 [2016] NSWLEC 1004
Hearing dates:	26 November 2015
Date of orders:	05 January 2016
Decision date:	05 January 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 23.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage or injury; hedge; obstruction of sunlight and views; respondent’s intention to remove trees relies on council permission; orders for tree pruning.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Farshid Anvari (Applicant) Owners Corporation, Strata Plan 12974 (Respondent)
Representation:	Farshid Anvari and Hien Tran, litigants in person (Applicant) Mr O’Connor, counsel (Respondent) Sachs Gerace Broome, solicitors (Respondent)
File Number(s):	20838 of 2015

Judgment

Background

1. Mr Anvari and Ms Tran have lived at Russell Lea since 2002. During that time they have seen trees grow on the land to their west, on which a multi-dwelling townhouse development is situated. Mr Anvari (‘the applicant’) has filed an application with the Land and Environment Court. His application includes an intricate array of claims and orders covering tree pruning and removal, compensation and rectification works pursuant to both Part 2 (trees causing damage or injury) and Part 2A (hedges obstructing sunlight or views) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’). I have simplified the claims and orders in the following table.

2. The Owners’ Corporation of Strata Plan 12974 (‘the respondent’) was represented at the hearing by Mr O’Connor. The respondent obtained reports from arborist Ms Sue Wylie and engineer Mr McMillan, both of whom were present and gave evidence at the hearing.

3. Both parties made submissions regarding attempts at mediation, failed meetings, conversations and refused offers. I am left in no doubt that the jurisdictional test at s 10(1) of the Trees Act is satisfied.

4. The next jurisdictional test at s 10(2) of the Trees Act is not satisfied for many of the trees. I will address below the various claims made in Mr Anvari’s application.

5. At the beginning of the hearing Mr O’Connor explained that the respondent has made an offer to the applicant. Although the offer was made without prejudice save as to costs, Mr O’Connor emphasised that the offer still stands and tendered it as evidence. The respondent offers to remove all trees in the narrow garden bed along its eastern boundary, being trees T1-T15 and trees in hedges H1, H2 and H3. He says this removes much of the area of contention, greatly reducing the issues to be determined by the Court. However according to Ms Wylie, the consulting arborist engaged by the respondent to assess the trees, this offer relies on Council consenting to an application to remove those trees. Such an application has not been made to or approved by Council, so in determining this matter I cannot assume that any of these trees will be removed.

6. The respondent’s reasons for intending to remove trees in the narrow garden bed are to prevent damage to its own property. Ms Wylie’s report states that all of these trees are too large for the narrow bed in which they are planted. Ms Wylie is of the opinion that the trees may be uprooted due to lack of space for proper root development.

Part 2 – Damage caused by trees; risk of damage or injury caused by trees

Uprooting

7. Mr Anvari and Ms Tran worry that in strong winds trees along and close to the boundary will be uprooted and will fall onto their dwelling. It appears that Ms Wylie is of the view that this might happen when she states on page 19 of her report “Uprooting!”; however it is not clear if she is repeating the applicant’s claim or stating her own opinion. Having viewed the trees I saw no signs that any of the trees in this bed are unstable or have shifted in the ground. There are no cracks in the soil that indicate recent movement. I accept that the trees are too large for the narrow bed in which they are planted, but the most likely outcome of this in the near future is that they will cause damage to the respondent’s own property by pushing against and cracking the stone retaining walls supporting the garden bed. The respondents would be wise to remove the trees, but as I am not satisfied that they are likely to damage the applicant’s property, I will not be making any orders for this element of the application.

Lightning

8. Mr Anvari and Ms Tran worry that lightning may strike trees along the boundary and cause fire to damage their home or cause injury. There is no evidence to suggest that lightning is likely to strike these trees. There must be more than simply a distant possibility that this would occur. Furthermore, even if such an event was likely, damage resulting from fire would not be damage caused by trees. The Court has no jurisdiction over this part of the claim. A burning tree that falls on a house may cause damage, but as I have already found that there is nothing to suggest such an event is likely to occur here, I will not make any orders for this element of the application.

Damage by roots or limbs of paperbarks T26-28

9. Mr Anvari and Ms Tran say they fear that limbs will fall from the three paperbarks near the common boundary, and that roots of the trees will grow into their property and cause damage. No evidence was adduced that these trees have damaged the garage. Apart from the garage, this section of the applicant’s property is a steep area of garden that appears to receive little use or maintenance. Neither damage nor injury appears likely.

Damage by roots of trees T30 and T31

10. The mahogany gum (T30) and fig tree (T31) along the respondent’s rear boundary are not overhanging the applicant’s property. Mr Anvari and Ms Tran say that roots from both trees may cause damage to their property. Again, there is no evidence that this is the case. The mere possibility of this is not sufficient reason for the Court to order interference with these trees.

Damage by mice

11. Mr Anvari and Ms Tran claim that mice have damaged clothing and other items in their house after gaining access via the respondent’s trees. This is damage caused by animals, not damage caused by the trees. At paragraph 189 in Robson v Leischke [2008] NSWLEC 152, Preston CJ found that:

…the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees.

12. The Court has no jurisdiction over mice that may use the respondent’s trees. I will not be making any orders on this basis.

Damage by tree roots

13. A concrete path between the applicant’s dwelling and the common boundary is cracked and uneven, with sections of the path higher or lower than adjacent sections. Mr Anvari and Ms Tran say this is due to roots of the trees in the narrow garden bed. However there has been no excavation or uncovering of roots that would demonstrate this to be so. Other section of concrete path away from these trees were observed to be cracked and in poor condition also. Retaining walls and pathways within the applicant’s property are ageing, their condition deteriorating accordingly. I cannot be satisfied that roots of neighbouring trees have caused the damage to their pathway to be any worse than it might be without trees in the vicinity. I will therefore not be making any orders on this basis.

Damage to two mango trees

14. Two mango trees in the applicant’s back garden have died. There are signs of fungal decay on their stems. Mr Anvari says that overshadowing by neighbouring trees, and competition for root space with roots of neighbouring trees, caused the mango trees to decline and die. There is no evidence that this explanation of their condition is any more likely than other explanations, such as pests and diseases. I cannot be satisfied that neighbouring trees have caused any damage to the mango trees. The applicant also claims compensation for loss of fruit production from these trees. As I have not found that the respondent’s trees damaged the applicant’s mango trees, this is not something I need to consider. Orders will not be made on this basis.

Damage to a shed

15. Mr Anvari says a limb fell from tree T29 and landed on the garage roof. He claims the cost of clean-up. He also claims compensation for the excess he was required to pay as part of an insurance claim regarding the incident, as well as compensation for a resulting increase in insurance premiums. Although he states sums for these items in his application Mr Anvari has included no evidence of the amounts. Mr Anvari has clearly taken a lot of time in preparing his application, but without any evidence of amounts the Court cannot make orders for compensation.

Damage to a palm tree

16. Mr Anvari says the limb that fell on the garage also damaged a palm tree in their garden. The palm is a small Canary Islands Date Palm. Mr Anvari says he did not plant it. It grows in an area of the garden that receives little maintenance and it appears to be self-sown. It appears healthy. If some fronds were misshapen by a fallen limb, this has not significantly affected its health, future viability or its amenity. I will not be making orders with regard to the palm tree.

Timber fence

17. Mr Anvari and Ms Tran pointed out the timber fence along the common boundary. The stem of the mahogany T29 grows against the fence, which for this section is leaning over toward the garage. There is no other apparent reason for the fence’s displacement. Mr O’Connor maintains that the fence is merely displaced slightly, not damaged. However the common situation for a boundary fence is that is vertical. I accept Mr Anvari’s submission that the fence is damaged here, and I find this damage is caused by the tree. It is an ageing timber paling fence. It does not appear to be required for privacy as it is behind the garage, and it does not appear to be required for containing or excluding pets or other animals, as there is no fence at all on the applicant’s rear boundary a short distance away. Replacing the fence seems disproportionate to its condition and role. I will therefore make orders to remedy the damage, and to prevent further damage, in such a way as to require minimal cost.

Risk of damage or injury from tree T29

18. Mr Anvari suggests more limbs are likely to fail from T29 and would damage his garage. Long limbs extend over the garage. Ms Wylie agreed that limbs are likely to fall but is of the opinion that pruning can address this risk. I accept this is the case and will make orders for pruning the tree.

Part 2A – obstruction of sunlight and views

19. Some of the respondent’s trees along the boundary are close to the applicant’s dwelling. Trees in Hedge 2 (Viburnum) and trees T4-T7 (conifers) are close to the applicant’s living room. Mr Anvari and Ms Tran say that these trees obstruct sunlight to the room’s windows, and that the conifers obstruct views from the room. Two small sash windows are in the western wall of the room. In the middle of the day the room was quite dark. However the windows face west and it would not be until mid- or late afternoon that sunlight would seem to be obstructed. Although the trees contribute to the dimness of the room, I am not satisfied that they cause a severe obstruction of sunlight, and will not make any orders on this basis.

20. The respondent says the trees provide screening for privacy and that there is no view to be had from these windows apart from the built form of townhouses on the respondent’s land. Mr Anvari and Ms Tran say they had distant views across the front of the respondent’s land, clear of any built form. Ms Tran has her desk in the living room. Its position would allow her to enjoy those views were they available. The view may not be iconic, or even highly prized, and it may be across a side boundary, but it is the only view available from the living room and is likely to be the view most enjoyed by Mr Anvari and Ms Tran. I am satisfied that the obstruction of this view severely affects their enjoyment of their property.

21. I accept the applicant’s statement that trees were not there when they purchased their property but have grown into the view line during the time they have lived there. There is no evidence to contradict this. Trees in Hedge 2 are between the applicant’s dwelling and the respondent’s dwellings and do not significantly obstruct landscape views, whereas Trees T4-T7 are forward of the respondent’s dwellings and do obstruct landscape views. I will therefore make orders to remove trees T4-T7 in case the respondent does not remove them.

22. Conifers T16-25 are along the respondent’s western boundary, separated from the applicant’s property by the built form on the respondent’s property. They are so distant from the applicant’s dwelling that I am not satisfied that they cause any significant obstruction of views or sunlight and no orders will be made for these trees.

Orders

23. As a result of the foregoing, the orders of the Court are:

1. Within 30 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF Level 3) to remove trees T4-T7 to no more than 30 cm above ground level.

2. Within 30 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF Level 3) to prune tree T29 to remove hazardous branches over the applicant’s garage, including all broken, weak, dead or dying branches, and the low branch with a narrow fork and included bark.

3. The works in (2) are to be done in accordance with the guidelines of AS4373 Pruning of amenity trees. The works in (1) and (2) are to be done in accordance with the NSW WorkCover Code of Practice for the Amenity Tree Industry.

4. Given reasonable notice the applicant is to allow any access necessary to carry out the works in (1) and (2) during reasonable hours of the day.

5. Within 60 days of the date of these orders the respondent is to engage and pay a fencing contractor, builder or handyperson to carry out the following works to the common boundary fence at tree T29: remove parts of the fence in contact with tree T29 and sufficient other parts of the fence to restore the fence to its vertical alignment, leaving a small gap (200-300 mm) between the tree and the fence sections to each side of it. If any additional fence posts are required to achieve this they must be installed clear of woody tree roots.

____________________________

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 05 January 2016