Blue v Glover

[2016] NSWLEC 1502

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blue & anor v Glover & anor [2016] NSWLEC 1502
Hearing dates:	28 October 2016
Date of orders:	28 October 2016
Decision date:	28 October 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 12.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); sunlight; obstruction has not become more severe since applicants purchased their property; damage; roots; tree removal ordered.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Noel Blue (First Applicant) Kym Blue (Second Applicant) Jenny Glover (First Respondent) Anthony Glover (Second Respondent)
Representation:	Noel and Kym Blue, litigants in person (Applicants) Jenny and Anthony Glover, litigants in person (Respondents)
File Number(s):	198336 of 2016

Judgment

Background

1. Mr and Mrs Blue (‘the applicants’) have owned and lived at their Glenhaven property since 2011. When they purchased their property a row of Leighton Green Cypress trees on a neighbouring was already at roof height of their double-storey dwelling.

2. Mr and Mrs Glover (‘the respondents’) have owned the neighbouring property since 2003.

3. The Blues first raised concerns about the trees’ proximity to their dwelling with the Glovers in 2012, in particular about branches rubbing against their dwelling and leaves in their gutters. They have pruned the trees at their own expense and replaced their gutters. In 2015 Mrs Blue tripped on uneven pavers on the narrow path between their dwelling and the trees.

4. The Blues have removed some pavers and found large roots from the cypress trees beneath. Their property insurer has informed them that damage caused by roots is not covered by their policy (Exhibit E). They have obtained a quote from Earthscape Industries (Exhibit F) for $11,455 to lift the paving, remove the sand base, cut roots and relay the pavers on a new base.

5. The Blues have applied to the Court pursuant to both Part 2 and Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for removal of 12 trees (‘the trees’) along their common boundary. They were granted leave at the onsite hearing to amend their application to include a proposed order for compensation based on the quote they had already filed with the Court and provided to the Glovers.

6. The Glovers’ hedge of cypress trees extends along two sides of their rear garden. Twelve trees grow in a row next to the common boundary with the Blues. The Glovers appreciate the privacy and other amenity the trees provide. They say people could see between covered outdoor areas of their property and the Blues’ property were it not for the trees.

7. The trees are 10-12 metres tall, with stems up to approximately 300 mm in diameter. They are planted closely and provide a dense visual screen. Apart from trees at each end of the row, the hedge is approximately 2 metres from the Blues’ dwelling.

Part 2A application

8. The Blues say the trees obstruct sunlight to windows in their dining room, lounge and upstairs bedroom. These windows face principally west and would receive afternoon sun. Having been taken to the downstairs windows during the onsite hearing, I accept that the trees obstruct sunlight to these windows. However, the severity of the obstruction has not increased during the time the Blues have lived here. They purchased their property with this sunlight obstruction. Considering this, I would not make orders in relation to sunlight under Part 2A of the Trees Act.

Part 2 application

Damage

9. During the onsite hearing I observed the now uncovered roots below removed pavers. Larger roots are approximately 100 mm in diameter. It is evident that they are from the adjacent cypress trees, which are less than a metre from some of the areas uncovered by the applicants. I accept that these roots have caused damage to the applicants’ property by lifting paving. The Glovers suggested there may be other causes, such as the weight of adjacent water tanks or overflow from the tanks, but the Trees Act only requires that the trees be a cause of damage, not the only cause, and I am satisfied of this. Thus the Court’s jurisdiction is enlivened under Part 2. Due to the proximity of the trees to paving, it is likely that all 12 trees will cause damage in the foreseeable future.

Tree removal is required

10. To prevent further damage, existing roots will need to be severed between the paving and the trees. Without this, they will continue to grow in girth and lift the pavers further. Mrs Glover said she received advice that a root barrier could be installed to prevent further damage. However the trees are up to 12 m tall, and cutting their roots this close to their stems will reduce their stability and leave them prone to windthrow failure, clearly an unacceptable outcome. Therefore, to prevent further damage the trees will need to be removed and the Court will order this. The onus is on the trees’ owners to undertake and pay for the works.

Compensation

11. Regarding compensation, I note that earlier communications from the Blues to the Glovers related to proximity of branches to their dwelling and debris from the trees, rather than to root damage. Their first concerns about roots appear to have followed the tripping incident in May 2015, and were first communicated to the Glovers in early 2016. It is still 2016 and the trees are now to be removed. The Glovers have had little opportunity to prevent further damage occurring since it was brought to their attention. They will not be ordered to pay compensation.

Orders

12. As a result of the foregoing the orders of the Court are:

1. The application is upheld.

2. Within 60 days of the date of these orders the respondents are to engage at their cost a suitably qualified (minimum AQF level 3) and experienced arborist to remove the 12 cypress trees along their common boundary with the applicants’ property.

3. The works are to be done in accordance with the NSW Code of practice for the amenity tree industry.

4. The respondents are to give the applicants at least 7 days’ notice of the works.

5. The applicants are to provide any access required to complete the works during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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