Hazlewood v Paton

[2013] NSWLEC 1208

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hazlewood v Paton [2013] NSWLEC 1208
Hearing dates:	29 October 2013
Decision date:	29 October 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; injury; Hedge - obstruction of sunlight
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Mr H Hazlewood (Applicant) Ms N Paton (Respondent)
Representation:	Applicant: Mr H Hazlewood (Litigant in person) Respondent: Ms N Paton (Litigant in person)
File Number(s):	20599 of 2013

Judgment

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

1. COMMISSIONER: The owner of a property in Moss Vale has appealed under both s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

1. The applicant is seeking the removal of one dead tree and the reduction by half their size of another five trees that are growing on the respondent's property to the north.

1. As allowed by the Registrar, the applicant is also seeking compensation of a sum of $712 for tree pruning, tip fees, application fees, service of documents, and fence repair.

1. The trees are a row of six mature conifers - cultivars of xCupressocyparis leylandii (Leyland Cypress). An additional tree, a Hakea sp. growing amongst the trees, is not part of the application. The trees are numbered from west to east on the applicant's diagrams; tree 4 is dead. The tree extend about two thirds of the width of the applicant's rear fence line.

1. The respondent does not wish to remove or prune any of the trees as she enjoys the visual amenity they provide. She stated at the hearing that the trees provide habitat for possums and many birds.

The Part 2 application

1. The applicant is concerned that the trees may cause damage to his property or injury to anyone on his land. He is specifically concerned about:

• The movement of the trees in strong winds and the potential for whole or partial tree failure;
• Potential root damage to his sewer pipe which runs some metres from the trees; and
• Their flammable nature and the risk of fire.

1. In his original application claim form, the applicant states that the trees have not caused any damage to date but if they are not attended to, he considers they will certainly cause damage and injury.

1. In material submitted later, and discussed during the hearing, the applicant contends that the roots of the trees damaged the posts of the timber fence that divides the parties' properties. The applicant is claiming compensation of $150 for repairs to the fence.

1. In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

1. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...".

1. As the applicant is largely concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

1. Neither party engaged an arborist to provide any expert opinion. The applicant obtained a 'report' in regards to the trees from Mr Lynton Kettle, however Mr Kettle is a builder and not an arborist and his opinion can be given little if any weight. His report meets none of the criteria required of experts' reports as stated in the Expert Witness Code of Conduct - s 5 Schedule 7, Uniform Civil Procedure Rules 2005.

1. Absent any independent arboricultural evidence and with the expertise I bring to the Court, I observed all trees except Tree 4 to be healthy. While it is completely normal for trees to move in the wind, at the time of the hearing I saw no signs that would lead me to conclude that any of the trees are unstable. While whole tree failure is a hypothetical possibility, I saw no evidence to suggest that is likely to happen in the foreseeable future.

1. I saw no branches on any of the trees, including the dead tree, that are likely to cause damage to the applicant's property or injury to anyone on his land. While there has been some inexpert removal of lower branches, by or on behalf of the applicant, there is no indication of their imminent failure. The applicant made no mention of any past failures of branches or trees onto his property.

1. The dead tree is intermingled with the adjoining trees and principally overhangs the respondent's driveway. The respondent raised no concerns about it.

1. In regards to the potential damage to the sewer, the applicant stated that there have been no blockages to date. As the sewer is relatively new (2011/ 2012) and is made of PVC, the likelihood of root incursion in the near future is remote.

1. The respondent's evidence shows that in 2006, NRMA insurance approved the respondent's claim for the replacement of a storm damaged fence on her south-western boundary (the common boundary). The extent of the applicant's evidence with respect to the fence is an incomplete invoice (no date, no amount is shown) for fence repair. The applicant was unable to produce any actual evidence that the trees caused the alleged damage. As s 10(2) cannot be satisfied in regards to the fence, no orders can be made requiring any compensation to be paid to the applicant by the respondent.

1. One of the items of correspondence received from the applicant raises the issue of the flammability of conifers. The risk of fire damage to an applicant's property as a consequence of the flammable nature of trees is discussed in Freeman v Dillon [2012] NSWLEC 1057 at paragraph [86]. In essence, trees do not cause fires. It is sufficient to state that the circumstances of the matter before me are such that the issue of fire is not relevant.

1. In considering the claim for compensation, the applicant seeks reimbursement for the cost of pruning branches from the respondent's trees and the associated tip fees. The respondent's evidence indicates that this was undertaken by the applicant without the respondent's permission. The applicant has not provided any evidence of why such compensation is justified. An order for compensation could only be made if any of the tests in s 10(2) are satisfied. The applicant has provided no evidence to demonstrate that any of the branches he removed had caused, or were likely in the near future to cause, damage to his property or injury to anyone.

1. In regards to the other elements of the compensation claim, Commissioners of the Court do not have the jurisdiction to award costs associated with the making of an application. Claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.

1. After considering each of the applicant's concerns raised in the application under Part 2 of the Act, I am not satisfied to the level required by s 10(2) that any of the tests in that section are met. Put simply, the applicant has not provided any evidence to substantiate his application and this element of the application is dismissed.

The Part 2A application

1. The applicant contends that the respondent's trees block 95% of the sunlight to his property all day.

1. In applications under Part 2A there are a number of jurisdictional tests that must be sequentially satisfied.

1. The first relevant test is s 14A(1)(a) which states that Part 2A only applies to groups of two or more trees that are planted so as to form a hedge.

1. I am satisfied on the evidence of the spacings, linear arrangement and species that the trees the subject of this application meet this test.

1. The trees are estimated to be 12-14m tall and therefore meet the requirement in s 14A(1)(b) that they be at least 2.5m tall in order to engage the Court's jurisdiction.

1. The next relevant test is s 14E(2)(a)(i) which states that the Court must be satisfied that the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicant's land. If a severe obstruction is found, s 14E(2)(b) requires that the Court must not make an order under this Part unless 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. This in turn requires consideration of relevant discretionary matters in s 14F.

1. The applicant has nominated a number of windows. The windows are not numbered on the diagram but include a north-facing bedroom window, north-facing glass sliding doors to a partly enclosed patio, and west-facing windows of the living room, kitchen, family room and garage. The diagram incorrectly indicates south rather than the north point, that is, the respondent's trees are to the north rather than to the south of the applicant's property.

1. The applicant includes a number of photographs in his application and claim form. None of the photographs have dates or times on them however the applicant stated that the photographs were taken in winter at 10.00 am or thereabouts. The photographs principally show shading of the garden by the trees - Part 2A does not apply to shading of gardens. One photograph shows tree shadows across the roof at the rear of the applicant's dwelling. Other photographs indicate shading as a consequence of elements of the building.

1. At the morning hearing it was observed that the north facing bedroom window would most likely receive morning sun, as the area to the northeast of it is free of obstructions.

1. The north-facing glass doors are located beneath a covered porch, the northern side of which has timber slats across it (not shown in the photographs). The west facing windows are likely to receive afternoon sun.

1. Question 4 in the claim form asks an applicant to detail the amount and number of hours per day of any sunlight lost to each of the nominated windows and the time of year. It also suggests attaching shadow diagrams if they are available.

1. Absent any of this information and on the very limited material supplied by the applicant I am not satisfied that the applicant's claim that the respondent's trees shade 95% of his property all day can be supported. Therefore, I cannot conclude that there is a severe obstruction of sunlight to windows of the applicant's dwelling as a consequence of the respondent's trees.

1. However, if I am wrong in this, there are a number of discretionary matters that are relevant that can be considered under s 14F(k) and (s).

1. The respondent purchased her property in 2002 and stated that, at the time, the trees were well established and almost at their current height. A photograph dated 12/12/2003 shows nearby trees that have since been removed but were said by the respondent to be part of a much longer row of trees that included the trees the subject of the application. The trees in the photograph are clearly tall and well established.

1. The applicant argues that he remembers the trees as being 2-3m tall when he purchased the adjoining property to the east of the respondent in 2002.

1. Again, with the expertise I bring to the Court, on the basis of the trees' form, diameter and extension growth, the respondent's recollection of their height is far more realistic.

1. The applicant purchased his current block of land in 2003 and built the house on that land in 2011/2012. The trees would have been almost at their current height when the dwelling was built. I am surprised that having owned the land for such a long time, the applicant does not appear to have factored in the presence of the trees and the shadows they cast across his land. When this was put to him, the applicant stated that he assumed that the respondent would agree with him and have the trees pruned.

1. In regards to the pruning sought by the applicant - the removal of the centres of the trees and a reduction to half their height, would, in my opinion have a detrimental impact on the health, condition and appearance of the trees and cannot be supported. The applicant has provided no evidence as to the quantum of difference this would make to sunlight to windows of his dwelling.

1. Therefore, there is insufficient evidence to prove s 14E(2)(a)(i) and s 14E(2)(b) is similarly not satisfied. On this basis, the Court has no jurisdiction to make any orders for intervention with any of the trees to which this Part applies.

Orders

1. On the basis of the foregoing, the Orders of the Court are:

(1)   The application in its entirety is dismissed.

_____________________

Judy Fakes

Commissioner of the Court

Amendments

06 February 2014 - typographical error - 'respondent' changed to 'applicant'

Amended paragraphs: 38 line 1

Decision last updated: 06 February 2014