Hitchenson v Collins

[2022] NSWLEC 1494

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hitchenson v Collins [2022] NSWLEC 1494

Hearing dates:

30 November 2021

Date of orders:

16 September 2022

Decision date:

16 September 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – damage to boundary fence – risk of injury – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:

Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Leah Hitchenson (First Applicant)
Byron Hitchenson (Second Applicant)
Jason Collins (Respondent)

Representation:

Counsel:
L Hitchenson (Self-represented) (Applicant)
J Arms (Solicitor) (Respondent)

Solicitors:
Panwar Legal (Respondent)

File Number(s):

2021/256655

Publication restriction:

No

Judgment

Background to the application

1. COMMISSIONER: A frangipani tree (Plumeria sp.) (the tree) grows on the Wamberal property belonging to Jason Collins (the Respondent), close to the common boundary fence shared with his neighbours, Leah and Byron Hitchenson (the Applicants). The Hitchensons have applied to the Court seeking orders for the tree to be pruned clear of the fence and for Mr Collins to pay the cost of filing their application. During the hearing they amended the orders sought, saying they would be happy for the tree to be tied back to keep it clear of the fence.

The hearing

2. The final hearing in these proceedings took place via audio-visual means on 30 November 2021. At the hearing’s conclusion, I determined a site view was not required. I have been able to reach this decision relying on the available evidence and extensive submissions made during the hearing.

Framework for this decision

3. As permitted by s 7 of the Trees Act, the Applicants have applied for orders to prevent damage to their property as a consequence of a tree on adjoining land. The orders sought are those that the Court has the jurisdiction to make at s 9 of the Trees Act. However, Commissioners of the Court do not have the power to make the costs order sought by the Applicants – should they wish to pursue that element, they would need to file a Notice of Motion to be determined by a Judge or the Registrar of the Court.

4. Orders can only be made if the Court is satisfied of certain matters 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.

5. Before making orders, the Court must consider relevant matters at s 12 of the Trees Act.

12 Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters:

(a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

(b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,

(b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

(b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,

(c) whether the tree has any historical, cultural, social or scientific value,

(d) any contribution of the tree to the local ecosystem and biodiversity,

(e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,

(f) the intrinsic value of the tree to public amenity,

(g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

(i) if the applicant alleges that the tree concerned is likely to cause injury to any person:

(i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,

(j) such other matters as the Court considers relevant in the circumstances of the case.

The Applicants made reasonable effort

6. The Hitchensons discussed the issue with Mr Collins several times prior to replacing the boundary fence, and again before commencing these proceedings. I am satisfied that they made a reasonable effort to reach agreement in accordance with s 10(1) of the Trees Act.

Have the trees caused damage to the Applicants’ property?

The Applicants’ position

7. The Hitchensons have a pool. The boundary fence forms part of the pool fence. The Hitchensons submitted that Mr Collins’ frangipani damaged the previous fence along this boundary, causing it to collapse. They replaced the entire boundary fence, some 42 metres in length, at their expense in 2020. When the fence was replaced, according to the Hitchensons, Mr Collins’ agent tied the tree back from the fence, but Mr Collins later removed the tie so that the tree pushed against the fence again. The Hitchensons submitted that, near the tree, the new boundary fence is on Mr Collins’ land as a result of directions he gave to the fencing contractors in 2020.

8. After the Hitchensons commenced these proceedings, Mr Collins carried out minor works such as cutting a root and tying the tree to a stake. The Hitchensons then served on him a Notice of Discontinuance. Discontinuing the proceedings would require the consent of both parties – Mr Collins did not sign and return the notice.

9. Wanting to avoid repeated requests to tie back the tree, the Hitchensons seek a permanent solution by having the tree pruned clear of the fence. They submitted that, otherwise, the tree is likely to damage the fence and, if the fence collapses, a person might be injured by gaining access to the pool.

The Respondent’s position

10. Mr Collins submitted that the 2020 fencing works were a requirement for the Hitchensons’ pool safety, so he did not contribute to those works. Two frangipanis stood on his property; one was removed and the remaining one, he said, has not damaged the fence. He submitted that the tree is small, not substantial, while the hardwood fence is robust and unlikely to be damaged by the tree. He argued that the tree is clear of the fence and the Applicants have not demonstrated that it is likely to damage the fence, other than expressing their unfounded opinion.

11. Mr Collins submitted that the new fence encroaches onto his land, as shown in the boundary survey (Exhibit 2) that he obtained in October 2021. He submitted that he did not agree to the proposed terms in the Hitchensons’ Notice of Discontinuance. If orders were to be made, he submitted that the fence should be relocated to the boundary and the Hitchensons should pay half of the survey costs.

Findings

12. Firstly, I have summarised very briefly above the submissions made by the parties. Other information provided in affidavits and during submissions highlights the difficulties of their relationship, but is not relevant to my decision.

13. The tree has not damaged the fence that now divides the properties. No evidence of any past or existing damage was adduced.

14. Photographs show there is sufficient clearance between the tree and the fence, such that the tree is unlikely to damage the fence in the near future, or within the next 12 months as per the principle in Yang v Scerri [2007] NSWLEC 592. The tree is also unlikely to cause injury.

15. It follows that the Court has no jurisdiction to make orders in these proceedings.

Orders

16. As a result of the foregoing, the Court orders that:

1. The application is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 19 September 2022