Foley v Thompson

[2024] NSWLEC 1129

Land and Environment Court

New South Wales

Medium Neutral Citation:

Foley v Thompson [2024] NSWLEC 1129

Hearing dates:

14 March 2024

Date of orders:

14 March 2024

Decision date:

14 March 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether trees have caused damage – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pts 2, 2A, ss 7, 10, 12

Cases Cited:

Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Deborah Foley (Applicant)
Neville Thompson (First Respondent)
Christine Thompson (Second Respondent)

Representation:

Counsel:
D Foley (Self-represented) (Applicant)
P Santone (Agent) (Respondent)

File Number(s):

2023/455214

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Christine and Neville Thompson (the respondents) have planted Leyland cypress trees (Cupressus × leylandii) (the trees) on their Belmont property, forming low hedges along the common boundary they share with Deborah Foley (the applicant). The trees are in a raised narrow bed close to Ms Foley’s garden and dwelling and to the southern side of her battle-axe driveway. In September 2023, Ms Foley called a contractor to her property to fix a leaking water pipe. The contractor replaced the entire length of water pipe, installing a new pipe from the water meter at the front of Ms Foley’s property, along the northern side of her driveway, beneath the driveway and then through her garden to her dwelling. The contractor advised Ms Foley that this was the most efficient remedy, rather than removing a larger area of driveway to find the leak in the original pipe beneath the driveway.

2. Ms Foley informed the Thompsons and asked them to remove their trees and to pay for the plumbing works. The Thompsons thought this was unreasonable. Ms Foley then applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the Thompsons to remove all the trees near the common boundary and to compensate Ms Foley $4,244.36 for the cost of the plumbing works.

3. The Thompsons proposed alternative orders including the removal of some trees and the construction of a screening fence in their place.

4. The hearing took place onsite, allowing the Court to observe the trees and all relevant issues.

Framework for this decision

5. The key jurisdictional tests in these proceedings are found at s 10 of the Trees Act:

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(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.

6. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application.

Reasonable effort to reach agreement

7. Mr Santone submitted for the Thompsons that they were denied the opportunity to mediate or to negotiate on the nature and cost of any repairs. He submitted that they were not shown any evidence of their trees’ roots causing any damage. Ms Foley submitted that the works needed to be done promptly and she relied on the contractor’s advice. It seems to me that Ms Foley was unlikely to reach an agreement with the Thompsons with the limited evidence that she had. In these circumstances where reaching an agreement is unlikely, I find the limited effort made by Ms Foley was reasonable.

Whether the trees have caused damage

8. Ms Foley’s water pipe was leaking in September 2023. She received a large water bill. Excessive water was running from her property onto the Thompsons’ property. The existence of a water leak is not disputed.

9. Ms Foley’s evidence includes three invoices from the contractor who completed the works (19 September 2023, 21 September 2023 and 26 September 2023), a letter from the contractor (12 December 2023), and photographs taken during an early stage of the works.

10. The three invoices describe the works. The letter from the contractor states:

“Upon inspection, it was found that tree roots had lifted the water pipe and caused a break.

With further investigation, we found more damage to the water pipe.

The most effective way to resolve issues was to redivert the waterline, rather than cutting up the client's driveway.”

11. The photographs show one area of excavation near Ms Foley’s dwelling. Two conduit lines can be seen: one yellow, the other white. The water pipe is not visible. The water pipe cannot be seen in any of the photographs. A few small tree roots can be seen near the two lines of conduit. There is no evidence showing damage to the water pipe caused by tree roots. The Court cannot be satisfied that the trees have caused damage.

12. Ms Foley submitted that the trees are against the boundary, above a retaining wall on the Thompsons’ property. If the trees remain, she submitted, their roots will continue to grow into her property and will cause further damage to pipes or to her dwelling. She said that she had to have a sewer pipe cleared on her property since lodging the application. On the evidence before me, I cannot be satisfied that the trees are likely to cause damage in the near future, being a period I regard as the next 12 months as per Yang v Scerri [2007] NSWLEC 592 at [14].

13. Trees on the Thompsons’ property to the west of Ms Foley’s dwelling might be a nuisance to Ms Foley, but they are not causing damage, nor are they likely to do so in the near future. Ms Foley said she has seen, and been scared by, green tree snakes in the trees. This would not be a reason within Pt 2 of the Trees Act for interfering with the trees. Ms Foley also submitted that the trees will obstruct her sunlight if left to grow taller. Should that happen, she could make an application under Pt 2A of the Trees Act.

14. I am not satisfied that the Thompsons’ trees have caused, are causing, or are likely to cause damage to Ms Foley’s property, nor that they are likely to cause injury. According to s 10(2) of the Trees Act, the Court cannot make orders on any element of this application.

15. I pointed out to the parties that the Trees Act provides a limited jurisdiction. Matters that give rise to a mere nuisance might not enliven the Court’s jurisdiction. Considering the very narrow bed in which the trees are planted, they are likely to have adverse consequences at some time in the future, but beyond the near future.

Orders

16. The Court orders:

1. The application is refused.

2. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 18 March 2024