Elmer v Dutfield

[2018] NSWLEC 1192

Land and Environment Court

New South Wales

Medium Neutral Citation:	Elmer v Dutfield [2018] NSWLEC 1192
Hearing dates:	16 April 2018
Date of orders:	16 April 2018
Decision date:	16 April 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	1) The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); retaining wall; damage and injury; cause of damage not shown; applicant previously made aware of other possible causes; likelihood of failure in the near future not shown; debris; hedge; obstruction of sunlight; obstruction not severe.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Fang v Li & anor [2017] NSWLEC 1503 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Dianne Elmer (Applicant) Christopher Dutfield (First Respondent) Marion Dutfield (Second Respondent)
Representation:	Counsel: D Elmer, litigant in person (Applicant) M Dutfield and C Dutfield, litigants in person (Respondents)
File Number(s):	17/327717
Publication restriction:	No

Judgment

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

Background

1. Mrs Elmer (the applicant) has lived at her Glenhaven property since 1984. To her east, a battle-axe driveway provides access to two properties. A row of cypress trees grows between the driveway and the fence. The Dutfields (the respondents), who live in the property behind Mrs Elmer, accessed via the battle-axe driveway, own the western half of the driveway, including the trees.

2. A stone-and-mortar retaining wall along the boundary supports the land and driveway to Mrs Elmer’s East. Some cracks are present in the wall’s mortar. Mrs Elmer has raised various concerns about the trees with the Dutfields since 1999, but the issues she sees as problematic remain, for her, unresolved.

3. Last year Mrs Elmer applied to the Court pursuant to both Parts 2 and 2A of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for seven cypress trees to be removed on the following grounds:

• The trees are causing cracking to the retaining wall, which may collapse;

• The trees are tall and spreading and likely to fall over onto her house or injure somebody;

• Branches grow over her property and touch her dwelling;

• Debris falls and blocks gutters;

• The trees form a hedge and obstruct sunlight to her windows.

4. The Dutfields dispute Mrs Elmer’s claims and see no need for the Court to make any orders.

Framework of the Trees Act

Part 2 claim

5. If I am satisfied that the trees have caused, are causing, or are likely in the near future to cause damage to the applicant’s property, or are likely to injure anyone (s 10(2) of the Trees Act), I have the jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12.

Part 2A claim

6. If I am satisfied that the trees form a hedge and severely obstruct sunlight to windows of the applicant’s dwelling (s14E(2)(a)(i)), I have the jurisdiction to make appropriate orders (s 14D) after considering a range of matters set out at s 14F.

The applicant’s submissions

7. Mrs Elmer says she was required to build a retaining wall when she moved in, to retain the land to the east. She says the local council did not require the wall to be engineered. The wall is approximately one metre tall, of stone and mortar. The trees were planted some time after the wall was constructed, but before the Dutfields purchased their property about 30 years ago.

8. Mrs Elmer first noticed cracking around 1999. She says she was advised to get an engineer’s report, but emphasises that there was no requirement for the wall to be engineered so such a report was not needed. An engineer’s report (Exhibit 2) in 2000, addressed to Mr Cardy, then an owner of the driveway’s eastern half, identified that the wall’s thickness was perhaps inadequate for its purpose and drainage was lacking behind the wall.

9. Mrs Elmer filed various correspondence she had with Baulkham Hills Shire Council. Council expressed a view that other factors may have contributed to the damage, and suggested it was a matter between the neighbours that did not necessarily involve the council.

10. Mrs Elmer pointed out a similar wall that has less cracking on the western side of her property. No trees grow near that wall, so she says the damage to the eastern wall must be caused by the trees.

11. A couple of cypress trees and some branches have failed or been removed over the years. Mrs Elmer spoke of other trees causing damage to her property during storms and is fearful that these trees will do the same, especially during storms.

12. Debris falls from the trees onto Mrs Elmer’s roof and into her gutters. She says she must get someone to clean out the gutters regularly or they overflow.

13. Mrs Elmer says the trees obstruct sunlight to her dwelling. She has to have the lights on in the house during daytime. They are tall and block morning light. Mr Taylor, an arborist engaged by Mrs Elmer, pointed out that the trees form a hedge. He used web-based apps to show the movement of the sun relative to Mrs Elmer’s dwelling on one day of the year, and to measure light levels on her property.

14. Mrs Elmer referred to a Tree Management Permit from Baulkham Hills Shire Council dated 3 February 2010 (in Exhibit 1), in which Council’s Tree Management Coordinator advised that the cypress trees “…can be reduced by 1/3 and any branches causing concern removed”, as well as approving the removal and pruning of several other trees.

The respondents’ submissions

15. The Dutfields say they get an arborist to inspect all their trees regularly and then carry out any recommended works. They have not been required to do much to the cypress trees over the years and see no need to remove them. They value the trees’ contribution to their amenity and to the local environment. Their arborist advised them that removing a third from the tops of the trees would damage and possibly kill the trees.

16. The Dutfields say that debris and shading are issues experienced generally in the neighbourhood as a result of living with trees. They suggest that Mrs Elmer’s pergola at the rear of her dwelling might contribute to a reduction of light in her dwelling.

Part 2 findings

The retaining wall

17. In the 2000 report of engineer Alfred Frasca (Exhibit 2), an engineer noted other possible causes for the condition of the retaining wall. Photos from that report (in particular photos number 6 and 7) show cracking similar to what was observed at the onsite hearing. It appears that the extent of cracking has not significantly increased, despite 18 years of tree growth since that report was written. Given this background, the onus is on the applicant to provide further evidence that the trees are a cause of damage, and that some action needs to be taken.

18. Despite being alerted to the presence of other possible causes for cracking to the wall, Mrs Elmer has provided no further or recent engineering evidence demonstrating causation. It is not sufficient that there merely be trees present in the vicinity of damage. The principle set out in Fang v Li & anor [2017] NSWLEC 1503 provides some guidance as to the investigations that might be undertaken to establish causation. Mrs Elmer’s application includes no recent engineering evidence.

19. I cannot be satisfied on the evidence before me that the trees have caused damage, so this element of Mrs Elmer’s application does not give the Court any jurisdiction to make orders for interfering with the trees or for repairing the wall.

Risk of damage or injury

20. Mr Taylor pointed out bark inclusions and some deadwood in several of the cypress trees. Stems are joined by narrow forks, many with included bark. This is a trait of the species that may sometimes lead to failure. However, relying on my own arboricultural expertise and experience, I observed nothing to suggest that the trees are likely to fail in the near future, a period generally taken to be 12 months for the purposes of the Trees Act, since Yang v Scerri [2007] NSWLEC 592. Therefore this element of the application does not enliven the Court’s jurisdiction.

Debris

21. I accept that debris from the tree falls onto Mrs Elmer’s roof and gutters, but have not been shown any damage caused by this. Leaves that are left sitting in gutters might damage them over time, but since a principle regarding this was set out in Barker v Kyriakides [2007] NSWLEC 292, the Court has consistently found that it is reasonable to expect that homeowners remove such debris as part of routine property maintenance. This is usually not a reason to interfere with a tree, and I see no reason to vary from this principle here.

Part 2 findings

Sunlight

22. The closest part of her dwelling to the trees is Mrs Elmer’s garage. The garage and a laundry at the back of the dwelling are not considered living areas and generally will receive little attention from the Court under Part 2A of the Trees Act. Mrs Elmer’s kitchen and dining windows face south, so do not receive direct sunlight regardless of the trees. Only the family room glass door facing east is obstructed for a short time during the morning by the trees. Trees further to the east, and Mrs Elmer’s pergola, also contribute to the obstruction. Considering these factors, I find that the trees themselves do not cause a severe obstruction, the level required by the Trees Act before I can make any orders.

Orders

23. As a result of the foregoing consideration, none of the elements of Mrs Elmer’s application enlivens the Court’s jurisdiction, so the application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 23 April 2018