Hsu-Kam v Yu

[2021] NSWLEC 1789

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hsu-Kam v Yu [2021] NSWLEC 1789

Hearing dates:

2 September 2021

Date of orders:

23 December 2021

Decision date:

23 December 2021

Jurisdiction:

Class 1

Before:

Douglas AC

Decision:

The Court orders:

(1) The application is dismissed.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – apprehension of damage and injury –– application dismissed

Legislation Cited:

Heritage Act 1977

Trees (Disputes Between Neighbours) Act 2006, ss 7, 8, 9, 10, 12

Uniform Civil Procedure Rules 2005, Sch 7

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Information Sheet 9.1 Heritage Gardens and Grounds

Safe Work Australia ‘Guide to managing risks of tree trimming and removal work, 2016

Workcover NSW Code of Practice for the amenity tree industry 1998

Category:

Principal judgment

Parties:

Patty Hsu-Kam (Applicant)
Zuhong Yu (First Respondent)
Yawen Huang (Second Respondent)

Representation:

Counsel:
P Hsu-Kam (Litigant in person) (Applicant)
D Zhou (Solicitor) (Respondents)

Solicitors:
Orbis Legal (Respondents)

File Number(s):

2021/165141

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Ms Hsu-Kam, the applicant, and Mr Zuhong Yu & Ms Yawen Huang, the respondents, share four boundaries, which in combination display a zig-zag pattern, between their properties in Wahroonga. The respondents occupied their property in December 2015.

2. There are 45 trees at issue in this application, the majority of which are growing as part of three hedges, within the respondents’ property. Trees (T)1-T12 form a Camellia hedge, running north-south, which is said to be about 6.5 metres tall. This is Hedge 1. T13-T16 (Hedge 2) is also comprised of Camellia’s, growing perpendicular to Hedge 1, in an east-west orientation. This is reported as 8 metres tall. T17-T20 are growing as an informal extension of Hedge 2, within the same row, and roughly parallel to the same boundary as Hedge 2.

3. T17 is a Privet tree, noted as 12 metres tall, T18 is described as a Camellia offshoot growing horizontally, T19 is a palm, and T20 is a Privet sapling. T21-T42 (Hedge 3), comprises 22 x Cupressocyparis leylandii (Leyland Cypress), which are growing in a roughly north-south line, parallel to Hedge 1, and perpendicular to Hedge 2. These Cypress are said to be 12 metres tall.

4. Running perpendicular from the southern end of Hedge 3, in a westerly direction, is a fourth boundary between the properties. Here, T43 is a Privet, about 5.5 metres tall, T44 is a Jacaranda, estimated as 6 metres, and T45 is another Privet, said to be 8 metres tall. All the Privet trees are self-sown, and the applicant claims that the palm and Jacaranda are also.

5. Ms Hsu-Kam has submitted an application with the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking 12 orders. In particular, she wants the hedges to be pruned down to a manageable and safe height, less than 3.5 metres high, and for the hedge width to be pruned, so they are at least 300mm clear from the shared property boundaries.

6. The orders which Ms Hsu-Kam seeks are as follows:

“1. Prune both height and width of all hedges from T1 to T45 every 6-12 months to keep the hedges healthy, full and contained within the neighbours’ boundaries.

2. Reduce height of T1 to T45 to keep to a safe height of 3 metres when pruned and not allowed to exceed 3.5 metres with growth and the width pruned back 30cm from the fence line and kept behind the fence line within neighbours’ boundaries.

3. Remove noxious weeds such as Privets (T17, T20, T43, T45) and self-seeded saplings like the Jacaranda Tree (T44) and palm pod (T19). These self-seeded saplings are random placements with no consideration to future ramifications when fully grown. In addition, their removal would be consistent to the maintenance of a heritage protected garden.

4. Permission to remove self-seeded saplings that are found during maintenance to keep in line with heritage garden maintenance.

5. If removal is not granted for point 3 and 4, we ask that all plants, trees and vegetation be reduced in height to 3 metres and not to exceed 3.5 metres with growth and pruned back in width 30cm behind the fence line and all plants, trees and vegetation be contained within the boundary lines.

6. Initial reduction of height and width of hedges (T1 to T45) to be paid by the neighbours who are the owners of hedge as many requests were put forward to reduce their height which were denied. Specialist Tree Arborists are now required to maintain trees/hedge using specialised equipment for such heights which is an unnecessary cost that could have been avoided.

7. Grant access to the hedges by crossing the fence/boundary line for maintenance of both height and width of the hedges.

8. Removal of all animals from pruning site during time of works. Notice will be given 1 week prior to works starting.

9. Allow all plants, trees and vegetation crossing common fence line/boundary to be pruned back to 30cm behind fence line and reduce the height to 3 metres and not exceed 3.5 metres with growth.

10. Fill gaps between T13 to T20 with 4 mature Camellia japonica plants at least 2 metres high to be planted 2.5 metres behind fence line of similar flower colour and characteristic of surrounding hedge and spaced evenly.

11. Physical screening to lower half of Leighton Cypress hedge (to) compensate for the hollowed out bottoms which has damaged the screening function of the trees.

12. Action court order within 14 working days”

7. A typographical error was made in the applicant’s submission where two consecutive orders were designated as Order 5. I have adjusted the latter of these to Order 6. In their alternative orders (below), the respondents have retained both Orders 5, and highlighted the error.

8. The respondents seek the following orders, in response:

“1. That orders 1, 2, 3, 5, 5 [sic], 6, 7, 8, and 11 in the applicant’s application to be dismissed.

2. That the applicant at her own cost, carry out orders 9 and 10 in her application.

3. The applicant, at her own cost, be at liberty to prune and remove any part of trees, branches, leaves and vegetations from the respondents’ property that encroaches on or above the applicant’s property.

4. That the existing Camellia hedges and Leighton Cypress hedge be maintained at a height of no less than 6 metres respectively.

5. That the applicant indemnifies [sic] the respondents against all claims, costs, losses, damages in connection with the applicant’s pruning or removal of trees or vegetation.”

The hearing

9. The hearing was conducted via audio-visual means according to the Court’s COVID-19 Pandemic Arrangements Policy, on 2 September 2021. Ms Hsu-Kam was self-represented, while Mr Zhou, Solicitor, of Orbis Legal, represented the respondents. Mr Gatenby of Apex Tree and Garden Experts provided a preliminary arboricultural report, on behalf of the applicant (Apex report).

10. The respondents’ submitted that Mr Gatenby, in the Apex report, failed to acknowledge and agree to be bound by the Expert Witness Code of Conduct, in Sch 7 of the Uniform Civil Procedure Rules 2005. Indeed this was the case, and thus the weighting attributed to the Apex report shall be discounted, but the author did specify that it was a preliminary report, and that a more comprehensive version could be provided, should the matter go to court.

11. The respondents resist Ms Hsu-Kam’s proposed orders, mainly as they prescribe tree heights which are much lower than they prefer, and because they propose that Ms Hsu-Kam pay for tree works in her property. They have consistently granted permission for limited works, however.

Jurisdictional requirements – Pt 2

12. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which the Trees Act applies that is situated on adjoining land.

13. The Court is obliged to consider a number of matters pursuant to s 10 of the Trees Act.

14. As required by s 10(1), I am satisfied that there has been a reasonable effort by the applicant to reach agreement with the owner of the land on which the tree is situated, based on the following summary of Ms Hsu-Kam’s evidence of email correspondence and interactions between the parties.

15. An email to Ms Hsu-Kam of 3 February 2020, from Penny Jin, on behalf of respondent, Ms Yawen Huang, granted permission for Ms Hsu-Kam to “trim the Cypress trees and Camellia hedge back to the fence line between us at your cost, but remain the current height. Again, Yawen don’t agree to trim the height”.

16. In letters to the respondents in January, February, and March, 2021, Ms Hsu-Kam sought permission to prune the height of the west-facing Cypress, and north-facing Camellia hedges to reduce their height, and to prune hedge foliage that was encroaching beyond the common boundaries. The applicant stressed that the respondents should take personal and financial responsibility for these works.

17. Ms Huang replied on 15 March 2021, noting in bold that “You are allowed to trim the width of the Cypress hedge and Camellia hedge which grows over our border, but remain current height”, consistent with her position of February 2020. She also wrote about a breakdown of previous agreements and trust between the parties, as a result of the hedges having allegedly been pruned by the applicant, lower than agreed heights on two previous occasions, and an alleged trespass into the respondents’ property by Ms Hsu-Kam’s gardener, which aroused safety concerns.

18. Ms Hsu-Kam included a copy of a letter with her application, dated 29 April 2021, from a Community Justice Centre Director, advising that the respondents had not replied to the applicant’s attempt to engage in mediation. Her subsequent application to the Court was filed on 8 June 2021.

19. The respondents’ written submission includes a letter from their Solicitor to Ms Hsu-Kam, dated 29 July 2021, proposing the following settlement;

“In order to save costs and to achieve expeditious resolution of the matter, we are instructed to propose an Offer of Settlement (“Offer”) for full and final satisfaction of your claim on the following terms:

1. The Camellia Hedge and Leighton Cypress trees being pruned to a height of no less than 5 metres respectively.

2. The Respondents agree to provide consent to the Applicant to prune vegetation and trees that have grown beyond the boundaries of the Respondents’ Property and protruded into the boundaries of the Applicant’s Property subject to the Applicant’s agreement on the following:

(a) The Applicant is to pay all costs and expenses associated with and incurred arising from the maintenance of the trees and hedges;

(a)The Applicant undertakes to fully indemnify the Respondents against all and any liabilities, losses, damages costs, expenses or penalties raised by any third parties including and not limited to the Ku-ring-gai Council and the Heritage Council of NSW as a result of the Applicant’s acts or omissions in relation to 1.

3. The parties agree to mutually release each other from all existing claims and future claims which may arise from with the same matter.”

20. Ms Kam rejected this offer.

21. The next major test that is posed, by s 10(2) of the Trees Act, is that the Court must be 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.

Damage

22. The applicant’s claim of damage is based on past and future damage to her television aerial, and possible future damage to her roof, resulting from branches from a Privet and Camellia’s T13-T20 overhanging. She claims that overhang and roof contact is exacerbated when branches are weighed down during wet weather. Ms Hsu-Kam also notes the likelihood of damage to paint on an exterior wall, resulting from a lateral Camellia stem (T18), and future damage to metal mesh fencing, as a result of pressure from encroaching foliage, generally.

23. While some small metal rods of the television aerial do appear to show some distortion, Ms Hsu-Kam has provided no invoices that show that any repair or intervention has been required to remedy this, nor any evidence to support her claim that this damage has occurred as a result of the respondents’ trees. In the absence of such evidence, this must be deemed no more than ‘normal wear and tear’.

24. A factor that appears to have exacerbated this dispute appears to be Ms Hsu-Kam’s misunderstanding of foliage encroachment, in terms of the jurisdiction of the Trees Act.

25. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, discussing the issue of nuisance, Preston CJ states, at [56], that “mere encroachment is insufficient to complete a cause of action.” At [171], with respect to “annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind”, his Honour states that this is not “damage to property on the land” within s 7 of the Trees Act, and that “leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour’s land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.”

26. In urban areas, it is normal for foliage to overhang neighbour’s land and houses, and to protrude beyond property boundaries. There is no remedy available under the Trees Act for such encroachment, unless appropriate and sufficient evidence is provided by the applicant, to prove, on the balance of probabilities, that encroaching branches and or foliage, have caused, or, are causing damage, or, are likely to cause damage in the near future, or, represent a genuine risk of injury.

27. Considering the adduced evidence, I am not satisfied that the trees have caused property damage, not that they are likely to cause property damage in the near future, where, based on the judgment in Yang v Scerri [2007] NSWLEC 592, the ‘near future’, as a rule of thumb, is deemed to be 12 months. This element of the claim is thus set aside.

28. My determination is made with consideration of the opportunity that is, and has continuously been, readily available to the applicant to maintain her own property, particularly given that only minor intervention is required to prevent any likely property damage that may result from the respondents’ trees. The respondents have consistently provided permission for such works on their trees that would satisfy this outcome, and they continue to do so.

29. The most glaring example of this appears to be T18, the Camellia offshoot growing horizontally, which Ms Hsu-Kam claims will soon damage her house’s exterior wall paint. It would appear obvious that one would prune this away from the wall to prevent such damage. Even the branches growing in proximity to the television aerial and roof could be pruned away by a competent AQF 3 qualified arborist with an extendable pole saw, without any aerial access required.

30. I will address this issue with respect to s 12 considerations, later in the judgment.

Injury

31. With respect to the risk of injury, Ms Hsu-Kam’s submission is based on the current hedges exceeding a safe height for access and management, especially in light of her gardeners’ general liability insurance excluding coverage for work above a height of 4 metres. The applicant drew the Court’s attention to advice in both the Safe Work Australia Guide to managing risks of tree trimming and removal work, and Workcover NSW Code of Practice for the amenity tree industry, with respect to the WHS dangers of working on ladders, at height, particularly with hedge trimmers.

32. This approach, and submission on this basis, does not satisfy the Tree Act’s requirements. Qualified, experienced arborists who specialise in working with tools, at height, employ access techniques and equipment allowing them to appropriately minimise the risks outlined in both WHS guides provided by Ms Hsu-Kam. They also normally hold Public Liability insurance with no height exclusions. Such works would only be needed irregularly, and can be viewed as normal maintenance required, particularly with large properties with long tree-lined boundaries, as a trade-off to retain the aesthetic and environmental benefits of having trees in such an urban environment.

33. Though this is likely to be more expensive than non-specialised gardeners, it is a means of readily reducing risks related to the works, and the expenses incurred need consideration in terms of benefits provided by the trees, and by the pruning. Both parties note the privacy benefit gained from the hedges. Notwithstanding the heritage garden guidelines that may relate to the respondents’ property, no evidence has been provided to suggest that the trees must be managed by the respondents to maintain privacy for the applicant. With the respondents’ hedges performing this role, however, there is no need for Ms Hsu-Kam to allocate the expense and garden space that would otherwise be required to plant and maintain screening plants to provide this role, had the respondents’ hedges been absent.

34. Essentially, the respondents’ trees are providing this environmental service for free, other than the relatively small cost Ms Hsu-Kam may incur in managing them in a manner and style to her satisfaction. It appears that Ms Hsu-Kam prefers a formal style with straight lines and a wall-like effect. This desired outcome normally requires regular pruning, but this is not necessary, rather it is a choice. Less frequent pruning may result in coarser regrowth, but more regular, frequent pruning does not make the trees more healthy, contrary to Ms Hsu-Kam’s inference in her proposed Order 1. In fact, it makes the trees more stressed, as removal of foliage compromises optimum tree health, because the leaves provide sugars that support all vital physiological processes.

35. The applicant’s proposed orders 10 and 11 (her original 9 and 10), illustrate the significance of the trees’ screening role for Ms Hsu-Kam, but also the unreasonable expectations she brings to this dispute. Proposed Order 10 is “Fill gaps between T13 to T20 with 4 mature Camellia japonica plants at least 2 metres high to be planted 2.5 metres behind fence line of similar flower colour and characteristic of surrounding hedge and spaced evenly” while Order 11 is “Physical screening to lower half of Leighton Cypress hedge (to) compensate for the hollowed out bottoms which has damaged the screening function of the trees.”

36. At Question 4 of her application, Ms Hsu-Kam notes:

“In addition, the owners of the Leighton Cypress trees have hollowed out the bottom of the Leighton Greens removing the bulk of the greenery on their side resulting in a “tunnel effect” compromising the screening function of the hedge.”

The respondents bear no responsibility to provide such screening, whether or not the trees may have performed this role previously. It has no bearing on whether the respondents’ trees cause damage or likely injury, and a property owner who desires such screening would normally plant, or construct a barrier within their own property, to achieve this, not expect their neighbour to do it for them.

37. The Apex report noted discussions with the applicant about debris from the trees falling into Ms Hsu-Kam’s property, and hygiene risks related to mould growth. In line with Mr Gatenby’s recommendation, these issues were not pressed in Ms Hsu-Kam’s application, but it is nonetheless relevant to provide the Court’s position.

38. The issue of the maintenance impost from falling sticks and leaves is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at [20], establishes the tree dispute principle:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment.” In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.”

“The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree.”

39. By employing appropriately qualified, experienced arborists, WHS risks stemming from the proposed pruning can be significantly reduced. They could readily and safely prune any overhanging branches from Privets or Camellia’s T13-T20, that may otherwise break and fall, and thus remove this risk.

40. Where mould is growing, as a result of trees, or in relation to any injury said to arise from a medical condition, the Court gives specific Supplementary Standard Directions requiring an applicant to provide properly qualified medical or scientific evidence of a link between the injury and the trees which are the subject of the application. In the absence of such evidence, removal of mould is considered by the Court along with the expectation of general property maintenance.

41. Upon consideration of the various submissions with respect to risks arising from the trees, I am not satisfied that a genuine risk exists, and all related risks are very low. Therefore, this element of the claim is also set aside, and thus s 10(2) of the Trees Act is not engaged.

42. Ms Hsu-Kam seeks to use the respondents’ property’s heritage status a mechanism to force desired actions. From the text of her application, particularly at Question 4, this also appears to be motivated by her aesthetic preferences. For example, the applicant says the Leighton Cypress (T21-T42) have “grown approximately 500cm through the chain link fence. To prune back the width of the Cypress trees to the fence line would expose bare bark as an aesthetic hedge on my side of the hedge which is not acceptable”.

43. Though pruning to near the fence line may initially expose many stems, this species is particularly resilient, and given the trees’ apparent strong vigour, and the recent above average rains, conditions are ideal for strong foliage regrowth after pruning. Should Ms Hsu-Kam prefer to be conservative to minimise the risk of foliage dieback, the trees could be pruned further from the boundary within her property, thus hiding the wire mesh of the fencing. Either option is available to Ms Hsu-Kam, given that the respondents appear to have consistently granted her permission to prune foliage within her property, and up to the common boundaries.

44. The applicant has provided guidelines relating to management of heritage gardens, at least in part, to justify her proposed orders for the respondents to remove various Privets, a Jacaranda, and a palm. Though the respondents’ house and/or garden may be subject to restrictions based on its heritage status, Ms Hsu-Kam has provided no evidence of heritage-based maintenance conditions, or other restrictions that the garden is subject to, and/or that prove that any proposed orders for removal of these self-seeded trees has any legal basis. While the Privet removal, particularly, would be consistent with the maintenance of a heritage-listed garden, in the absence of such evidence, I conclude that the information sheet provided, titled “Heritage Gardens and Grounds”, provides nothing other than guidance.

45. Similarly, while Privet trees are an environmental weed that self-seeds readily and prolifically, and are best removed, they are common throughout Sydney, particularly on the North Shore, and any enforcement of removal on private property is very rare.

46. As s 10(2) of the Trees Act has not been satisfied, I am not required to balance consideration of the extent of the damage or likely injury, with discretionary factors in s 12 of the Trees Act. However, consideration of some of these elements provides a useful vehicle to address other issues raised by the parties.

Discretionary matters – s 12

47. In making an order, the Court considers relevant matters in s 12 of the Trees Act.

• Some trees and tree works are likely to be protected by Council’s Tree Management controls under its Development Control Plan. Pruning of hedges, as part of regular maintenance, rarely requires such permission. No evidence has been provided to suggest that the respondents have taken any actions or made any omissions, in breach of obligations existing under the Heritage Act 1977 (s 12(b)).

• The trees provide a significant contribution to privacy, both visual and as a noise buffer, to landscaping, and to the amenity and scenic value of both parties’ properties (s 12(b3), (e)).

• The respondents note the role of the trees in terms of providing food and or shelter for local fauna and thus their contribution to local biodiversity. Specific note is made of birds and possums accessing the hedges (s 12(d)).

• Section 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, or of injury, including any act or omission by the applicant and the impact of any trees owned by the applicant, and, 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, or prevent risk of such injury.

• In this context, the respondents submitted that Ms Hsu-Kam had failed to maintain her own property, and, in light of past correspondence, I agree. The respondents have consistently granted the applicant permission to prune foliage within her property, and up to the common boundaries from within her property, in November 2017, February 2020, and March 2021, but Ms Hsu-Kam has failed to proceed with works that may have reduced or eliminated any likelihood of damage, or risk of injury from the trees. This may be because Ms Hsu-Kam perceived the financial burden of required works should be borne by the respondents.

• Many neighbours do reach agreement with respect to managing and sharing the financial burden related to their trees, but there is no legal or moral responsibility on the tree owners to carry any responsibility for branches and foliage that is ‘merely’ encroaching. Often impacted neighbours deal with hedge foliage as part of their maintenance, particularly when they get benefit from their neighbour’s trees, as appears to be the case here.

Conclusion

48. I am satisfied that there has been a reasonable effort by the applicant to reach agreement with the owners of the land on which the trees are situated, and thus s 10(1) of the Trees Act has been met.

49. I am, however, not satisfied that the trees have caused damage, are causing damage, or are likely to cause damage in the near future. I am also not satisfied that the trees present a genuine risk of injury. Therefore s (10)(2) of the Trees Act is not engaged.

50. Had damage or risk of injury been deemed sufficient to engage the jurisdiction of the Trees Act, the main discretionary factors considered in s 12 would have been the omission by the applicant to take pruning action to protect her own property, and the important privacy, aesthetic and biodiversity roles the trees provide.

Orders

51. As s (10)(2) of the Act is not engaged, the Court has no jurisdiction to make orders, and thus:

1. The application is dismissed

………………………..

J Douglas

Acting Commissioner of the Court

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Decision last updated: 23 December 2021