Chambers v Hall
[2019] NSWLEC 1461
•26 September 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Chambers v Hall [2019] NSWLEC 1461 Hearing dates: 26 September 2019 Date of orders: 26 September 2019 Decision date: 26 September 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is refused.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – zoning of the land – damage – fig trees planted near boundary – trees are restricting use of the land – whether trees are causing damage to the applicant’s property Legislation Cited: Ballina Local Environmental Plan 2012
Trees (Disputes Between Neighbours Act) 2006 (NSW)Cases Cited: Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152
Schutz v Kotsis [2010] NSWLEC 1332Category: Principal judgment Parties: Tracy Chambers (Applicant)
Eric Hall (First Respondent)
Mary-Ann Hall (Second Respondent)Representation: T Chambers, litigant in person (Applicant)
E Hall, litigant in person (First Respondent)
M Hall, litigant in person (Second Respondent)
File Number(s): 2019/183704 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
The application
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Tracy Chambers (‘the applicant’) has applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for three fig trees to be removed. The three Weeping Figs (Ficus benjamina) (‘the trees’) are planted on the neighbouring property owned by Mary-Ann and Eric Hall (‘the respondents’).
The situation
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The properties are in Lennox Head, in northern New South Wales. Ms Chambers’ property is a residential property with one dwelling on land zoned R2 Low Density Residential. The Halls’ property is a larger lot on land zoned RU1 Primary Production in the Ballina Local Environmental Plan 2012.
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The Halls have owned their property for 22 years and say the trees predate their ownership. The trees are planted less than one metre from the common boundary of the two properties. They are not yet mature, with stems of 30 or 40 cm in diameter. Buttress roots spread into Ms Chambers’ property for several metres, protruding 20 cm or more above ground level.
The Trees Act only applies to trees on certain land
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At s 4(1), the Trees Act limits the type of land included within this jurisdiction:
4 Act applies to trees on certain land
(1) This Act applies only to trees situated on the following land:
(a) any land within a zone designated “residential”, “rural-residential”, “village”, “township”, “industrial” or “business” under an environmental planning instrument (within the meaning of the Environmental Planning and Assessment Act 1979) or, having regard to the purpose of the zone, having the substantial character of a zone so designated,
(b) any land of a kind prescribed by the regulations for the purposes of this section.
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In Schutz v Kotsis [2010] NSWLEC 1332, Commissioner Fakes found at [5]:
“5 The properties are on land zoned Rural BA (Small Holdings – Agricultural Landscapes) under the Hornsby Shire Local Environmental Plan 1994. I am satisfied that Part 2 of the Act applies to this land as it has the substantial character of “rural-residential” as considered in s 4(1)(a) of the Act.”
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Properties surrounding the Halls are zoned R2 Low Density Residential. The Halls’ property is larger than the surrounding properties but does not appear to be used for primary production. It has the substantial character of the surrounding residential properties, so I am satisfied that the Trees Act therefore applies to trees on their land.
Are the trees causing damage to the applicant’s property?
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Ms Chambers submitted that the tree species is an invasive weed throughout many parts of the world. She submitted that this species has an aggressive root system that spreads far and is known to damage property. She said the trees’ roots are damaging her property by preventing her mowing near the trees, and preventing her using the land near the trees for gardening, erecting a shed or other structure, or installing a pool.
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Ms Chambers asked another neighbour, Mr Stephenson, to give evidence. He explained that the Halls object to further development of the property and are using the trees to prevent a second dwelling being constructed on Ms Chambers’ land.
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The Halls acknowledged that the trees’ roots are problematic but say they are not causing any damage. They said they don’t want the trees to be removed as part of an effort to gain approval for a second dwelling.
Findings
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The dwelling on Ms Chambers’ property is at the other end of the lot, well away from the trees. The area near the trees is vacant. The roots may prevent her fully using her land within 10 metres or more of the common boundary. However the Trees Act prescribes a more limited jurisdiction than the tort of nuisance, notably at s 10(2):
10 Matters of which Court must be satisfied before making an order
(1) …
(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.
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In Robson v Leischke (2008) 72 NSWLR 98; (2008) 159 LGERA 280; [2008] NSWLEC 152, Preston CJ explored the meaning of “damage” within the context of the Trees Act at [162]-[173]. At [166], his Honour explained:
“166 The reference in s 7 to ‘property on the land’, insofar as it refers to land, therefore, may be a reference to corporeal hereditaments (‘things corporate’) rather than incorporeal hereditaments (‘things collateral to things corporate’) and furthermore only to those corporeal hereditaments other than the surface layer of the land (the solum). If this be correct, the Trees (Disputes Between Neighbours) Act 2006 would apply to damage to physical and tangible property constituting corporeal hereditaments but excluding the surface of the land itself. Hence, damage caused by a tree’s roots to buildings, fences, paving or other structures, or to fruit trees, crops, ornamental gardens or other vegetation growing on a neighbour’s land, may be covered by the Trees (Disputes Between Neighbours) Act 2006 but damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes Between Neighbours) Act 2006: N Foster, ‘Trees and Nuisance in New South Wales’ (2007) 81 ALJ 291 at 292.”
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Although the surface of Ms Chambers’ land is now uneven, there are no other elements of her property disturbed by the trees’ roots.
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Further clarity is provided by his Honour at [169]-[171]:
“169 At common law, although damage is necessary to complete the cause of action in nuisance, the type of damage required varies depending on the kind of nuisance involved. For nuisances of the first kind, causing encroachment as by roots and branches of trees, actual damage to the land (including property attached to or inherent in the ground) must be proved: see paragraph 56 above. For nuisances of the second kind, causing physical damage, actual physical damage to land (including property attached to or inherent in the ground) is also required: see paragraph 67 above. For nuisances of the third kind, causing unreasonable interference with the use and enjoyment of the neighbour’s land, however, no actual financial loss or injury to health need be involved. The damage consists of the annoyance and discomfort caused to the occupier of the neighbouring land, such interference being of a material character: Clerk & Lindsell on Torts, 19th ed, Sweet & Maxwell, London, 2006, [20-27], p 1178.
170 The types of actual damage required at common law for nuisances of the first and second kind would also constitute “damage to property on land” within s 7 of the Trees (Disputes Between Neighbours) Act 2006, with the possible exception noted earlier (at paragraph 166) that damage to the surface layer of the land may not be damage to property on land.
171 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.”
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I acknowledge that Ms Chambers finds her enjoyment of her land is hampered by the trees’ roots, as per the third kind of nuisance described at [169] above. However, his Honour made it clear at [171] that, although this might be covered by the tort of nuisance, this does not amount to damage and therefore does not satisfy the test at s 10(2) of the Trees Act.
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According to s 5 of the Trees Act, if Part 2 applied to these fig trees, Ms Chambers would be unable to pursue action elsewhere.
5 Action in nuisance
No action may be brought in nuisance as a result of damage caused by a tree to which Part 2 applies or as a result of an obstruction of sunlight to the window of a dwelling, or of a view from a dwelling, caused by trees to which Part 2A applies.
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As I have found that s 7 of the Trees Act does not apply to these trees at present, Ms Chambers is not prevented from bringing an action in nuisance elsewhere.
Orders
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As a result of the foregoing, the orders of the Court are:
The application is refused.
……………………………….
D Galwey
Acting Commissioner of the Court
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Decision last updated: 02 October 2019
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