Harrison v Williams

[2009] NSWLEC 1337

Land and Environment Court

of New South Wales

CITATION:

Harrison v Williams [2009] NSWLEC 1337
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Rob and Jenny Harrison

RESPONDENT
Danielle Williams

FILE NUMBER(S):

20487 of 2009

CORAM:

Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- replacement tree planting; phases; removal of trees; risk of damage to property; risk of injury to person(s).

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

18 September 2009

EX TEMPORE JUDGMENT DATE:

18 September 2009

LEGAL REPRESENTATIVES:

APPLICANT
Rob & Jenny Harrison (litigants in person)

RESPONDENT
Danielle Williams (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

18 September 2009

20487 of 2009

Rob and Jenny Harrison v Danielle Williams

JUDGMENT

1 Commissioner: Nine Cypress trees (the trees) are growing in a row along the back fence of 55 Gore Street, Port Macquarie (the property) which is owned by Ms Williams. The edge of the trunk of each tree is about 0.3 m from the dividing fence with the adjoining land to the west. Each of the trees is about 6 – 8 m tall and has some branches overhanging the common boundary. Ms Williams did not plant the trees, they were about fence height when she purchased the property in 1996. The trees provide screening to her home from the westerly neighbour, and screening from westerly winds and the western summer sun. She pruned the trees down to about 4 – 5 m tall about 6 – 8 years ago. There were similar trees along the side boundaries that she removed in about 2000.

2 Mr and Mrs Harrison are the owners of 12 Allambie Place, Port Macquarie, the adjoining land to the west. They describe the trees as “Some type of very unsightly and messy pine species. A weed. Not native.” They make an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify or prevent property damage, and to prevent injury to people. They seek orders for removal of the trees and their root systems atMs William’s cost. The Harrisons have owned their property since 1978. It is downhill of Ms William’s land. They excavated their backyard and built a retaining wall about 1.8 m high in about 1979 to retain what is now MsWilliam’s property. The Harrisons’ two-storey house is on the southern side of their property, with the eastern wall about 2 m from the common boundary with Ms Williams. They have a water tank and storage area between the house and the common boundary. They have a swimming pool adjacent the common boundary north of their house. They say that their retaining wall at the common boundary is concrete block construction with reinforced concrete filling to an engineer’s specification, is built entirely within their property, and is not damaged by the trees. However, they say the rubble drain about 1 m wide and pipe drainage behind the wall was built by them on Ms William’s land.

3 The Harrisons claim that:

• The drainage behind the retaining wall may have been damaged by the trees as there has been more than usual overland flow from Ms William’s land recently;
• Damage to the drainage behind the retaining wall may cause damage to the retaining wall in the future;
• The original fibro dividing fence was damaged by the trees;
• The hardwood dividing fence that replaced the northern two-thirds of the fibro fence was damaged by the trees;
• The pine dividing fence that replaced the hardwood fence has been damaged by the trees;
• The remaining fibro dividing fence has been damaged by the trees and is likely in the near future to be damaged by the trees;
• Debris from the trees fill the roof guttering and caused the eastern end of their roof guttering to rust;
• Branches rub against the eaves, roof and windows of their house, rub off paint, make the windows dirty, and cause mildew;
• Debris from the trees pollutes the water in their water storage tank located in the southern corner of their property adjacent the common boundary;
• The trees are a possible fire hazard to their property;
• The swimming pool is continuously contaminated with tree debris and the filter often clogs;
• Tree debris builds up on the steps and paths, forming slime and making them dangerous;
• Branches are likely to cause eye injury to people using the back steps;
• People are likely to slip on the back steps while trying to brush branches out of the way;
• Needles twigs and branches drop in the play area and on play equipment

4 The parties agree that the dividing fence is on the common boundary. On that basis, the trunks of the trees are entirely on Ms William’s property, meeting s 4(3) and s 7 of the Act. Consequently, as I find that each tree is a “tree” within the meaning of that term in s 3(1) of the Act, there is an application that the Court may determine.

5 Mr Hanlon, Tree Assessment officer, and Mr Moss, Tree inspection officer for Port Macquarie–Hastings Council attended the hearing and provided helpful information regarding the Council’s Tree Preservation Order and available assistance with tree planting.

6 When assessing an application under the Act, the Court must be satisfied that one or more of the four tests in s 10(2)(a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

Has the tree caused damage to the applicant’s property on the land?
Is the tree now causing damage to the applicant’s property on the land?
Is the tree likely in the near future to cause damage to the applicant’s property on the land?
Is the tree likely to cause injury to any person?

7 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

The trees

8 To avoid confusion, I refer to the trees by number, the most southerly being tree 1, with consecutive numbering to tree 9 at the northern end of the row. The trees are Cypresses, most likely a species or cultivar of Cupressus. The tree trunks range from about 200 mm to about 350 mm diameter. The trees are 8 – 9 m tall. The trees have been roughly pruned on the Harrisons’ side, leaving large areas bare of foliage that are not likely to grow over. They do not form a complete screen when viewed from Ms William’s property because the Harrisons’ pruning has created gaps. At the time of the hearing, there were many dead branches from the trees lying in Ms William’s backyard. Mr Harrison thinks that a contractor repairing his guttering may have cut off those branches and thrown them into Ms William’s yard.

9 Mr Hanlon and Mr Moss say that much of the pruning done to the trees was likely to be a breach of the Council Tree Preservation Order. In their opinion the trees have been very poorly pruned in the past, and shaping now is not likely to produce attractive trees with full foliage cover. I understood them to say that all the trees could be removed without a permit from Council due to their proximity to the Harrisons’ dwelling.

Findings

10 On the Harrisons’ own evidence, I find that the retaining wall has not been damaged and is not now being damaged by the trees. Further, as I do not have a comfortable level of satisfaction that the Harrisons’ observation of an increase in runoff is evidence of damage to the drainage behind the wall, I do not find that the trees are likely to damage the retaining wall in the near future. Thus none of the tests in s10(2)(a) of the Act are met in this regard.

11 Also on the Harrisons’ own evidence, the drainage behind the wall is Ms William’s property, so damage to it would not meet any of the tests in s10(2)(a) of the Act.

12 I find that some minor damage has been caused to the Harrisons’ guttering and property as a result of debris from the trees, thus meeting the first and second tests in s10(2)(a) of the Act. However, consistent with the Court's decision in Barker v Kyriakides [2007] NSWLEC 292, I do not find it appropriate to order the removal or significant interference with the trees on the basis of their dropping of leaves, twigs and the like on the applicant’s property.

13 I find that some minor damage has been caused to the Harrisons’ house as a result of rubbing by branches, thus meeting the first test in s10(2)(a) of the Act. However, the Harrisons’ could have pruned those branches as part of normal maintenance of their property, and avoided the damage. On that basis, I do not find it appropriate to order the removal or significant interference with the trees.

14 I find that past damage to the fences by all the trees meets the first test in s10(2)(a) of the Act. Also, I find that trees 1, 2, 3, and 4 are likely to damage the fibro fence in the near future meeting the third test in s10(2)(a) of the Act. However, that damage could be avoided by pruning of the trees and I would not find it appropriate to order removal of the trees on that basis.

15 I find that debris from the trees, and branches of the trees obstructing access ways may have been a likely cause of injury to people on the Harrisons’ property in the past. However, I observe that there are not now any branches obstructing access, that there is not a collection of debris on paths and steps, and as discussed previously, normal home and yard maintenance by the Harrisons should prevent the trees being likely to cause injury to people in the future. On that basis I find that the trees do not meet the test in s10(2)(b) of the Act.

Consent orders

16 I allowed the parties a short adjournment during the hearing to consider their positions. After that adjournment, the parties requested that I make consent orders that the trees and cut branches be removed and the stumps be poisoned, at the Harrisons’ cost, and that Ms William’s replant at least three trees in her backyard no closer than 2 m from the common boundary, in the near future at her cost.

17 In consideration of this proposal, I recognise that the Harrisons wish to avoid damage to their retaining wall in the longer term, and seek assurance that the trees will be removed before that damage occurs. I note that the Council officers would allow removal of the trees, and the Council could assist with suitable replanting. I also note that Ms Williams has said she would have financial difficulty with pruning or removal of the trees. For these reasons, I am willing to make the consent orders.

18 However, by making the consent orders, I do not condone the lack of suitable maintenance of the trees by both parties over a number of years, nor the damage caused to the trees by the Harrisons’ lopping, nor the Harrisons’ lack of general property maintenance. Nor will I restrict Ms Williams’ rights to grow other plants close to the common boundary in the future.

Orders

19 The application is upheld in part and the Court makes the following Orders by consent of the parties:

1. These orders apply to 55 Gore Street, Port Macquarie, and 12 Allambie Place, Port Macquarie;
2. The cut branches in Ms Williams’s backyard shall be removed to the Harrisons’ property or another appropriate location, at the Harrisons’ cost by 18 November 2009;
3. The nine trees shall be cut to within 50 mm of ground level, the stumps treated once with Glyphosate to prevent regrowth, and the trees removed to an appropriate location, at the Harrisons’ cost by 18 March 2010;
4. No vehicles shall enter Ms William’s property as part of the work carried out for branch and tree removal by the Harrisons;
5. The Harrisons shall give Ms Williams at least 7 days notice of works to be carried out in accordance with 2. and 3. above, and the work shall take place at reasonable times, and be carried out by suitably skilled and insured contractors;
6. Ms Williams shall plant at least three trees in her backyard, no closer than 2 m from the common boundary, by 18 June 2010, at her cost. The trees shall be nursery stock, of at least 5 litre pot size;
7. These orders do not restrict Ms Williams from growing other plants closer to the common boundary.

___________________

Peter Thyer
Acting Commissioner of the Court

The formal orders may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at

23/10/2009 - Pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005. - Paragraph(s) Orders no 3 and 6