Finney v Edmonds
[2019] NSWLEC 1295
•20 June 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Finney v Edmonds [2019] NSWLEC 1295 Hearing dates: 20 June 2019 Date of orders: 20 June 2019 Decision date: 20 June 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is refused.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – cypress hedge – damage – fence – near future – planting poorly planned Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 (NSW) Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Robert John Finney (First Applicant)
Kay Alice Finney (Second Applicant)
Scott Edmonds (First Respondent)
Sarah Edmonds (Second Respondent)Representation: Solicitors:
Other:
B Kelly, Russell Kelly & Associates (Respondents)
R Finney and K Finney, litigants in person (Applicants)
File Number(s): 2019/73724 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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Kay and Robert Finney applied to the Court pursuant to both s 7 and s 14B of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for trees in a neighbouring hedge to be pruned and maintained.
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Orders were sought on the basis that the trees are damaging the fence along the common boundary and that they will soon obstruct views from their dwelling.
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Sarah and Scott Edmonds own the neighbouring property, where cypress hedges grow along their side and rear boundaries. They had the trees pruned recently, addressing some of the Finneys’ concerns about the trees’ height. At today’s onsite hearing the Finneys did not press their Part 2A application regarding an obstruction of views, but they are still concerned about damage to their fence. They seek orders for the hedge to be pruned annually to maintain a maximum height of 3.2 metres and to prevent branches growing against the boundary fence or encroaching into their property.
Further background
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These Bowral properties were subdivided in 2008. The wire mesh fence, on timber posts, dates from that subdivision. The Edmonds planted the trees shortly before the Finneys purchased their property in 2010. The properties are much longer than their width. The Finneys estimate there to be some 104 cypress trees along their common boundary.
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There was apparently some agreement between the parties that the Edmonds would maintain the trees at a reasonable height and prune them along the boundary to contain the hedge within their property.
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Mr Kelly, solicitor for the Edmonds, explained that their situation has changed somewhat, describing recent circumstances as dire. The Edmonds’ property is being sold pursuant to orders from the Family Court. A contract was signed recently, with the date of settlement falling only a few weeks after this hearing. A clause in the contract allows consideration of any orders the Court might make. Other matters affecting the Edmonds are of a personal nature and need not be described here. I acknowledge their circumstances. Any matters relevant to my decision will be addressed below, although I note that the personal matters referred to are not matters to be considered within the decision framework of the Trees Act.
The trees
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These Leyland Cypress trees from a dense hedge along the length of the common boundary, with a gap where an easement crosses the properties. The trees are healthy. They have been pruned recently to maintain the flat top and sides of the hedge and are now around three metres or a little more in height.
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The trees are planted in a line close to, and parallel to, the boundary, so that some are only 30 cm from the fence at their base. Their dense foliage grows to almost ground level, filling the gap between their stems and the fence so that the recent pruning on the Finneys’ side had to be done from within their property, with branches growing through the fence’s wire mesh being cut on their side of the fence.
Damage
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The Finneys submitted that the trees are damaging the fence by causing some posts to become loose in the ground and by growing against the wire mesh and so causing it to be pushed out into their property in places.
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Some branches growing through the mesh are almost the size of the mesh holes and are applying pressure to the wire.
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Mr Kelly submitted that the fence has not been damaged by the trees. He pointed out the bowed section of wire mesh where there is a gap in the hedge and the fence is therefore unaffected by trees. He says the fence is in good condition other than reasonable wear and tear to be expected for its age.
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The fence is certainly straight and fit for purpose. Any damage is minor at best. There is no evidence that posts have been destabilised by trees. Some minor pushing out of the wire mesh is aesthetic, but does not affect the fence’s integrity, and is no worse than the section pointed out by Mr Kelly where there are no trees.
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I find that the trees have not caused damage, and are not causing damage, to the fence.
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For any nuisance action involving a neighbouring tree under the common law, it would be difficult to obtain Court orders until one’s property has been damaged by the tree. The introduction of the Trees Act in 2006 allowed the Court to make orders to prevent damage prior to the event. Of course, such a jurisdiction must be reasonably limited, so at s 10(2) of the Trees Act the Court must be satisfied that, if the tree has not already caused, or is not causing, damage to the applicant’s property, then it must be likely to do so in the near future. Since Yang v Scerri [2007] NSWLEC 592, the Court has consistently applied the principle that the near future is in most cases reasonably represented by a period of 12 months.
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The Finneys argued that the trees will damage the fence if not pruned and maintained to prevent branches and foliage growing against and through the wire. I accept this to be the case. However, I do not think such damage is likely to occur within the next 12 months.
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As I have found that the trees have not damaged, are not damaging, and are not likely in the near future to damage, the fence along the common boundary, it follows that I cannot make orders.
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Having said that, I note the Finneys’ concerns are justified. These trees have been planted so close to the common boundary that there is no possibility of access along the respondents’ side of the fence to maintain them and to prune branches that might grow against or through the wire mesh. During the recent hedging works, branches growing through the wire mesh were cut on the Finneys’ side of the fence. Some of these branches already fill the holes in the wire mesh. As they continue to grow, they will damage the mesh, which is in otherwise good condition. It is difficult to see how this can be averted without branches being cut on the respondents’ side of the fence, a much more onerous task. The hedge planting lacks forethought, consideration of maintenance requirements and care for one’s neighbours.
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If circumstances change, and the fence becomes damaged or likely to be so in the near future, the Finneys may make a new application to the Court. The respondents, or the subsequent owners of their property, should at least be aware of the issue so that they might take necessary steps to avoid this.
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As a result of the foregoing, the orders of the Court are:
The application is refused.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 26 June 2019
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