Dunn-Mukawa v Naylor

[2024] NSWLEC 1520

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dunn-Mukawa v Naylor [2024] NSWLEC 1520

Hearing dates:

21 August 2024

Date of orders:

21 August 2024

Decision date:

21 August 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The Part 2 application is refused.

(2) The Part 2A application is refused.

(3) The exhibits are returned, other than exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – whether the trees have caused damage – Pt 2 application refused – Pt 2A application – neighbouring hedge – not all trees are part of the hedge – obstruction of sunlight and views – whether the obstruction is severe – relevant history – balancing of interests – Pt 2A application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, Pt 2A, ss 14A, 14B, 14E, 14F

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Texts Cited:

Coffs Harbour Development Control Plan 2015

Category:

Principal judgment

Parties:

Joanne Dunn-Mukawa (First Applicant)
Osamu Mukawa (Second Applicant)
Ron Naylor (First Respondent)
Merle Naylor (Second Respondent)

Representation:

Counsel:
J Dunn-Mukawa (Self-represented) (First Applicant)
O Mukawa (Self-represented) (Second Applicant)
R Naylor (Self-represented) (First Respondent)
M Naylor (Self-represented) (Second Respondent)

File Number(s):

2024/186232

Publication restriction:

No

Judgment

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

Background to the application

1. Each tree dispute that comes to the Court has its own particular circumstances. It can be possible to find two disputes in which the trees, or the issues around trees, sound almost identical. However, circumstances specific to each dispute may affect the weighing of reasons for and against interfering with those trees. Some factors are only understood with the benefit of a site view, which is why the Court arranges onsite hearings in tree disputes. In several cases, the Court has made orders for pruning lilly pilly hedges that, on reading the application, sound similar to the trees in these proceedings. Yet here, no orders for pruning will be made.

2. Joanne Dunn-Mukawa and Osamu Mukawa (the applicants) and Ron and Merle Naylor (the respondents) are neighbours in North Boambee Valley. They have a dispute over trees on the Naylors’ property. Ms Dunn-Mukawa and Mr Mukawa have applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for nine trees on the Naylors’ land to be pruned and maintained at the height of the applicants’ boundary wall.

3. The hearing took place onsite. The applicants and respondents were self-represented. The Court observed the trees and relevant elements at both properties.

The trees

4. The application concerns nine trees on the Naylors’ property, all lilly pillies, including both Syzygium australe and S. floribundum. Trees 2–8 grow in a row next to the common boundary. Tree 9 is in the same alignment as trees 2–8, but is physically separated from Tree 8 by approximately 4 metres. Trees 2–6 are approximately 4 metres tall. Trees 7–9 were pruned recently and are approximately 2.5 metres tall. Tree 1 is significantly older and taller than the others and, although it is nearby, it is not in the same alignment as Trees 2–9.

History

5. The trees have been present for more than 15 years. In or around 2018, after they bought their property, the Naylors cleaned up their back garden, removing some palms and trimming other trees. Pruning cuts on trees 2–9, and the resulting regrowth, indicate that those trees were reduced to a height of approximately 2 metres, or around the height of the applicants’ boundary wall, in 2018. The diameters of those pruning cuts indicate that large vertical branches were removed, so the trees were likely to be at least 4 metres tall immediately before the 2018 pruning. The respondents explained that this was part of the one-off garden clean-up, and they had no intention of maintaining the trees at that height.

6. In 2019 Ms Dunn-Mukawa and Mr Mukawa bought their property. At that time, as a result of the Naylors’ 2018 garden clean-up, the applicants had distant landscape views beyond the boundary, and sunlight to windows of their dwelling’s living area.

7. The trees continued to grow. In 2021, while the Naylors were away, Ms Dunn-Mukawa and Mr Mukawa pruned trees 2–9 and other trees on the Naylors’ property. They pruned not only branches and foliage overhanging their property, but reduced the overall height of the trees, requiring an act of trespass in the absence of any permission to do so from the Naylors. This is referred to as the ‘2021 incident’. Since then, the relationship between these neighbours has been icy.

8. The trees continued to grow, as is to be expected. The applicants find the trees leave debris on their property, might damage their property, and obstruct sunlight to, and views from, their property. They wrote to the respondents in late 2023, identifying some of these issues.

9. In June 2024, before receiving a copy of the tree dispute application, the Naylors pruned Trees 6–9 approximately to the height of the applicants’ boundary wall (Tree 6 only partly), providing the applicants with access to sunlight and views along that part of the boundary.

Reasonable effort

10. Under both Pt 2 (at s 10(1)(a)) and Pt 2A (at s 14E(1)(a)) of the Trees Act, the Court cannot make orders without first being satisfied that the applicants have made a reasonable effort to reach agreement with the respondents. Correspondence shows that the applicants wrote several times to the respondents. They also offered attendance at mediation. Each party’s position appears non-negotiable and there was little chance of reaching any agreement, especially with the nature of their relationship since the 2021 incident. In these circumstances, I am satisfied that the applicants’ efforts were reasonable.

The Part 2 application – damage

11. Under the Pt 2 application, before making orders the Court must be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicants’ property, or injury to a person (s 10(2) of the Trees Act).

12. The applicants say debris from the trees falls onto their property. The problem is especially burdensome during spring and summer, when northerly winds blow flowers and fruits onto their property, particularly from Tree 1. This affects their pool, the decking around the pool, and their outdoor living area. Daily cleaning is required and debris in the pool affects their pool filter.

13. The applicants say that shade from the trees prevents their pool deck drying out, causing it to deteriorate more quickly than otherwise.

14. The applicants say that the trees’ branches and foliage are likely to damage their roof guttering during intense winds when the trees bend across the boundary. They provided videos showing the trees moving in the wind.

15. The respondents suggested alternative measures to address the applicants’ concerns, such as a using a pool cover and installing gutter guard. The respondents thought it unlikely that their trees could hit the applicants’ dwelling.

16. Having observed the trees and the applicants’ property, I find there is no justification for making orders sought in the Pt 2 application.

17. Firstly, there is no evidence of damage to the applicants’ property. I accept that some property maintenance might be required as a result of nearby trees, but no damage caused by debris from the trees was observed. The deck does not appear to be damaged by the trees. The applicants’ video evidence showed the trees moving during wind, as should be expected, but did not show the trees striking and causing damage to their dwelling. As per s 10(2) of the Trees Act, if the Court is not satisfied that the trees have caused, are causing, or are likely in the near future to cause damage to the applicants’ property, no orders can be made.

18. Secondly, even if damage might result should the applicants fail to clean up debris, the long-standing tree dispute principle established in Barker v Kyriakides [2007] NSWLEC 292 (at [20]) would apply here:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

19. The situation here is not unusual. The trees are not large, but even large trees can be expected in urban gardens. A pool and its surrounds will require maintenance in such an environment. The applicants’ stated expectation that they should not have to tolerate such debris falling into their pool is perhaps unreasonable. They prioritise their pool over their neighbours’ trees. However, the broader community appears to value trees over pools in urban areas. For instance, the Coffs Harbour Development Control Plan 2015 (the DCP) (at Section F3.2 Landscaping Requirements – Residential Areas) requires residential developments to include trees to at least building height (in front setbacks) or to the height of the uppermost window (in rear setbacks) in their landscape plans. The DCP does not require residential development to include a swimming pool. Removing trees simply to prevent their flowers and fruits falling into a swimming pool seems contradictory to the aims of the DCP.

20. For the reasons given above, the application seeking orders pursuant to Pt 2 of the Trees Act is refused.

The Part 2A application – obstruction of sunlight and views

21. Part 2A of the Trees Act applies only to certain trees (s 14A):

14A Application of Part

(1) This Part applies only to groups of 2 or more trees that:

(a) are planted (whether in the ground or otherwise) so as to form a hedge, and

(b) rise to a height of at least 2.5 metres (above existing ground level).

(2) Despite section 4, this Part does not apply to trees situated on Crown land.

22. I have described the nature of the tree planting above at [4]. Tree 1 is not part of a hedge: it is older and larger than trees 2–9 and is not in the same alignment along the boundary. Tree 9 is not part of a hedge: it is physically separated from Tree 8. Trees 2–8 are planted in a straight line; their crowns overlap forming a continuous screen of foliage along the boundary; they are all trees of similar species that can be readily pruned as a hedge. Part 2A of the Trees Act applies only to Trees 2–8.

23. Before making orders under Pt 2A of the Trees Act, the Court must be satisfied that the trees are severely obstructing either: sunlight to a window of the applicants’ dwelling; or a view from the applicants’ dwelling (s 14E(2)(a)). Even then, the Court must also be satisfied (at s 14E(2)(b)) that:

… the severity and nature of the obstruction is such that the applicant’s interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order under this Part.

24. The Trees Act does not establish a right to sunlight and views. Where trees severely obstruct sunlight to a window, or views from a dwelling, the Court must consider, before making any orders, a range of matters set out at s 14F of the Trees Act to determine if the applicants’ interests outweigh reasons against interfering with the trees. This includes, at s 14F(b):

(b) whether the trees existed prior to the dwelling the subject of the application (or the window or part of the dwelling concerned where the dwelling has been altered or added to).

25. The trees existed before the applicants purchased their property. The applicants claim that they had access to sunlight and views when they came here in 2019. Indeed, their photographs from the time show the trees were shorter – around the height of their boundary wall – allowing access to sunlight and views. This may be the case, and is a relevant consideration. However, the situation at that time was not the usual situation to be found here. The respondents had pruned their trees (the one-off 2018 pruning) not long before the applicants arrived. This was not a hedge that was maintained at fence height, then left to grow after the applicants moved in. Rather, the lower height of the trees in 2019 was temporary and just happened to coincide with the applicants’ purchase of their property. The usual situation here is that there is a hedge along the boundary, much taller than fence height. I am not persuaded that the applicants’ wishes justify the Court making orders to interfere with this.

26. I also note that the respondents pruned trees at one end of the hedge prior to receiving a copy of the tree dispute application. They have shown some willingness to compromise in favour of the applicants, despite some retained bitterness following the 2021 incident. They submitted that they might do so again in future when it seems appropriate.

27. I consider too the presence of other trees on the respondents’ property behind trees 2–6, further from the boundary, including a tibouchina and a rhododendron. These trees have also grown taller since they were pruned (both in 2018 and in the 2021 incident), such that they are a similar height to trees in the hedge. Due to their presence, lowering the height of trees 2–6 (currently the taller trees in the hedge) would be unlikely to open up the desired view for the applicants.

28. I have not determined in this judgment whether or not the trees severely obstruct sunlight to the applicants’ windows, nor whether the trees severely obstruct a view from their dwelling. However, even if I were to take the applicants’ claim at its highest, and accept that the obstruction of sunlight or views is severe, after weighing the reasons explained above against interfering with the trees, I would not make any orders to remedy, restrain or prevent the obstruction.

29. For these reasons, the Pt 2A application is refused.

Conclusion

30. As a result of the above, the Court cannot make orders in these proceedings for pruning the trees under either Pt 2 or Pt 2A of the Trees Act.

Orders

31. The Court orders:

1. The Part 2 application is refused.

2. The Part 2A application is refused.

3. The exhibits are returned, other than exhibit A.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 27 August 2024