Bustamante v Mlinaric

[2009] NSWLEC 1324

Land and Environment Court

of New South Wales

CITATION:

Bustamante v Mlinaric [2009] NSWLEC 1324

PARTIES:

APPLICANT
Nga Bustamante

RESPONDENT
Mark and Romana Mlinaric

FILE NUMBER(S):

20383 of 2009

CORAM:

Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- Pruning of tree, damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280

DATES OF HEARING:

8 September 2009

EX TEMPORE JUDGMENT DATE:

8 September 2009

LEGAL REPRESENTATIVES:

APPLICANT
Nga Bustamante (litigant in person)

RESPONDENT
Mark and Romana Mlinaric (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

8 September 2009

20383 of 2009 Nga Bustamante v Mark and Romana Mlinaric

JUDGMENT

1 A hedge of three Pittosporum undulatum and five Tecomaria capensis is growing close to the northern boundary of 3 Bargadda Avenue, Sylvania. This property and the hedge are owned by Mr and Mrs Mlinaric.

2 Mrs Bustamante is the owner of 1 Barjadda Avenue, Sylvania, the adjoining land to the north. She has made an application under the Trees (Disputes Between Neighbours) Act 2006 for the hedge to be cut to an appropriate height to prevent damage to her property, and to allow natural light to her house.

3 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2)(a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

Has the tree caused damage to the applicant’s property on the land?
Is the tree now causing damage to the applicant’s property on the land?
Is the tree likely in the near future to cause damage to the applicant’s property on the land?
Is the tree likely to cause injury to any person?

4 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

5 I find that both the Pittosporum, and the Tecomaria which is a tall, self-supporting “scrambler”, are trees within the meaning of that term in s 3(1) of the Act.

6 I observed at the hearing that the hedge had been pruned recently to a height of about 3 m, and that above the dividing fence it is now clear of the common boundary and clear of Mrs Bustamante’s house and guttering.

Damage

7 Mrs Bustamante pointed out what she considers is damage to the guttering of her house. I understand her claim to be that a section of guttering along most of the length of the hedge, which is near the front of her house, is slightly bent out towards the hedge. I observed that the section of guttering beside the hedge appears to be slightly wider or bent out when compared to the guttering at the rear of the house which is not beside the hedge. However, Mrs Bustamante has not explained why the difference in width of the guttering should be considered damage, nor how it was caused by the hedge. On that basis, I do not find that the guttering has been damaged by the hedge. Further, the hedge is now well clear of the guttering, is not now causing damage to the guttering, and is not likely in the near future to cause damage to the guttering. Thus damage in relation to the guttering does not meet any of the tests in s 10(2)(a) of the Act.

8 I have not been shown any damage to the fence or any other property on Mrs Bustamante’s land that has been caused by the hedge. Also, considering the normal rate of grown of Pittosporum and Tecomaria, I find that damage to Mrs Bustamante’s property is not likely in the near future. On that basis there is no damage to Mrs Bustamante’s property that meets any of the tests in s 10(2)(a) of the Act.

Access to light

9 Mrs Bustamante requested orders that the hedge be cut to allow natural light to her house. I observed that there is a window with translucent glass in the southern wall of Mrs Bustamante’s house beside the hedge, and that the hedge does not seem to make any significant obstruction to light entering that window. Regardless of my assessment in this case, the Act does not recognise obstruction of light as “damage” and thus even if the light was obstructed by the hedge, that would not meet any of the tests in s 10(2)(a) of the Act.

10 Preston CJ discussed access to light and views in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 [para 173]. His Honour states:

Although the New South Wales Law Reform Commission recommended that the new statutory scheme should address such concerns, the legislature expressly declined to do so, as the second reading speech and Parliamentary Debates plainly state. Obstruction of a view from land or of access to light on land by a tree situated on adjoining land does not constitute “damage to property on the land ”.

Conclusion

11 None of the trees that make up the hedge meet any of the tests in s 10(2) of the Act. Therefore there is no basis upon which I can make orders for intervention with the trees.

12 I note that Mr Mlinaric has given some commitment to Mrs Bustamante that he will prune the hedge about twice a year in the future, and that if he does not prune it in that timeframe, Mrs Bustamante may remind him and he would expect to prune it within a month or so of that advice.

Orders

13 The orders of the Court are:

1. The application is dismissed.

___________________

Peter Thyer
Acting Commissioner of the Court
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