Mirzaee-Amirabad v Wang

[2024] NSWLEC 1744

Land and Environment Court

New South Wales

Medium Neutral Citation:

Mirzaee-Amirabad v Wang [2024] NSWLEC 1744

Hearing dates:

5 November 2024

Date of orders:

20 November 2024

Decision date:

20 November 2024

Jurisdiction:

Class 2

Before:

Nichols AC

Decision:

The Court orders:

(1) The application is upheld in part.

(2) Within 6 months of the date of this judgment the respondent is to engage and pay for an AQF level 3 arborist to inspect Tree 1. Any dead and declining limbs identified by the arborist are to be pruned in accordance with the relevant provisions of AS4373: 2007 - Pruning of Amenity Trees.

(3) The work in Order (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) Commencing 24 months after the first inspection, the work in Order (2) is to be undertaken at least every 60 months for the life of the tree.

(5) The application to remove the trees is dismissed.

(6) Within 30 days of the date of these orders, the applicant is to obtain, and provide to the respondent copies of three quotes for the replacement of the Colorbond dividing fence with a new Colorbond fence of a standard not greater than the standard for a sufficient dividing fence (1.8 metres from existing ground level) including any works required for the installation of supporting posts. The quotes are to be for the full extent of the shared boundary (26 metres in length) and are to include removal of the existing fence.

(7) Within 90 days of the date of these orders the applicant is to engage and pay for a contractor to carry out the fence replacement works.

(8) On reasonable notice, the respondent is to allow all access required for these works during reasonable hours of the day.

(9) Within 14 days of receiving a receipted invoice from the applicant for the completed fencing works, the respondent is to pay the applicant 50% of the cheapest quote from Order (6).

Catchwords:

TREES (NEIGHBOURS) potential damage – tree damaging fence – standard fence – orders made

Legislation Cited:

Dividing Fences Act 1991, ss 4, 7

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

Western Lands Act 1901

Georges River Local Environmental Plan 2013

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Cases Cited:

Barker v Kryiakides [2007] NSWLEC 292

Hinde v Anderson [2009] NSWLEC 1148

McCallum v Riodan [2011] NSWLEC 1009

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

Yang v Scerri [2007] NSWLEC 592

Zangari v Miller (No 2) [2010] NSWLEC 1093

Texts Cited:

AS4373: 2007 - Pruning of Amenity Trees 2007

WorkCover NSW Code of Practice for the Amenity Tree Industry 1998

Category:

Principal judgment

Parties:

Sima Mirzaee-Amirabad (Applicant)
Jessica Wang (Respondent)

Representation:

Counsel:
S Razi (Solicitor) (Applicant)
C Graves (Solicitor) (Respondent)

Solicitors:
Azadi Lawyers (Applicant)
WMD Law (Respondent)

File Number(s):

2024/319546

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: The applicant contends that trees growing on the respondent's property (72 Short Street Oyster Bay, Lot 579 DP 14716) near the boundary have been dropping branches and damaging the applicant’s property, and root growth is damaging the fence to the point that the fence needs replacing. The applicant submitted evidence of one limb from Tree 1 (Silky Oak) that had fallen and damaged one panel of the steel fence dividing the two properties. The applicant is concerned that unless the trees are removed, there is a risk of further damage to the fence and also in particular ongoing growth of tree roots prevents construction of a functional fence. The applicant submitted no evidence of damage being caused by Tree 2 (Cheese Tree). There is dispute over the height of a replacement fence between the parties. The applicant contends a new Colorbond fence standing at 2.4 metres in height is required for privacy reasons.

2. Apart from the applicant's concerns about the ongoing risk of damage to the existing or new fence, the applicant is also concerned that the falling limbs may cause injury to people on the property.

3. The application is made pursuant to s 7 Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

4. The respondent maintains that the trees are healthy, added a positive contribution to the shade and amenity of the property and does not wish to remove them.

5. In applications under Pt 2 of the Act, the key jurisdictional tests are found in s 10(2). This section 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. These tests must be applied to each tree about which an application is made.

6. If any of the tests are met, the Court's power under s 9 of the Act to make any orders it thinks fit is engaged.

7. As neither party engaged an arborist to provide independent expert evidence, these observations are based on the arboricultural expertise I bring to the Court.

8. Concerning Tree 2, the applicant was unable to provide evidence of previous damage arising from the dropping of leaves or branches. In my view, in relation to Tree 2, no evidence has been adduced to satisfy any of the tests in s 10(2) and therefore no orders can be made in relation to this tree.

9. However, if I am wrong in these findings [8], as a matter of discretion, the discussion and observations on site did not indicate any exceptional circumstances that would lead the Court to deviate from the Tree Dispute Principle published in Barker v Kryiakides [2007] NSWLEC 292 which states at [20]:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order 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 ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”

10. Turning to Tree 1, this is growing close to the fence that divides the applicant's property with the respondent's property. The canopy of Tree 1 projects slightly over the applicant’s rear yard area.

11. The applicant was able to provide oral evidence which I accept of previous damage to one panel of the steel fence (Figure 1) arising from the dropping of a tree limb from Tree 1 (Silky Oak). The applicant is seeking orders to remove Tree 1 and is seeking orders to share costs (50%) for the repair of this damage and replacement of the fence along this shared boundary. The oral evidence adduced indicate that one limb was dropped from Tree 1 that had a diameter of approximately 100mm estimated from the size of the remaining stub.

Figure 1

12. In relation to the alleged potential for the roots of Tree 1 to cause damage to the fence causing instability of the fence, the applicant was unable to produce any evidence of root incursion causing damage to the fence, or any other proof that damage was imminent, or there is a "real, appreciable probability" of irreparable damage (see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [200]). In my experience, the instability of parts of the fence that I observed is likely to be caused by unsuitable footings rather than tree root growth. It was clear on observation that wind action on the extra height of the fence had contributed to fence instability rather than tree root growth. It was also clear that the fence requires either replacement or major repair to ensure both safety and function. The Court has published a guidance decision in Yang v Scerri[2007] NSWLEC 592 and determined that the 'near future' is a period of 12 months from the date of the hearing.

13. The respondent stated in oral evidence that they were content to contribute 50% of the costs to replace the existing fence with a new Colorbond fence of standard height (1.8m) for the length of the shared boundary (26m) and that any extra costs related to a higher fence should be borne by the applicant.

14. Given the location and height of Tree 1, its proximity to the Applicant’s yard, and the uncontested evidence of previous limb failure, I am satisfied to the extent required by s 10(2) that falling limbs could cause injury to any person on the applicant’s property and could do damage to the applicant's property.

15. Therefore, as the Court's jurisdiction to make orders is engaged, consideration of any relevant matters in s 12 of the Act is required before determining what, if any, orders should be made.

16. Given the constrained and limited areas of private open space in the applicant’s yard, I consider some orders are appropriate.

17. I agree with the respondent that the trees are healthy and provide visual amenity and shade for the occupants of the respondent's property. The trees also contribute to the immediate landscape and provide visual relief of the fence dividing the two properties. The lower limbs of Tree 1 had been pruned previously, and at the time of inspection (November), it is my assessment there were no limbs or other plant parts that required pruning immediately to make the tree safe.

18. While the applicant seeks the removal of the trees, I consider this to be an extreme measure and not warranted at this stage. Orders will be made for the regular inspection of Tree 1 and any necessary pruning or removal of dead and dying limbs as assessed by a qualified arborist.

19. As discussed in Hinde v Anderson [2009] NSWLEC 1148, the applicant can make a fresh application if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.

20. Similarly, should the respondent's position change, the respondent may apply to the Court to vary the Orders.

The fence

21. In relation to replacement or repair of the existing fence, both the applicant and the respondent agree that the fence requires replacement due to damage, rust and instability. The matter in contention between the parties relates to the height of the replacement fence to satisfy privacy concerns and cost. The respondent contends a standard fence type and height is sufficient for privacy. The applicant contends the existing height of 2.4 metres from ground level (matching the existing fence) is required. I accept the submission of the respondent that a standard height fence would be sufficient for privacy and in keeping with the kind of dividing fence in the locality.

22. Having regard to each of the circumstances prescribed by s 4 of the Dividing Fences Act 1991:

1. The existing dividing fence in question is a Colorbond fence. It is an old fence, and is dilapidated, rusting, leaning and unstable.

2. The adjoining properties are used for residential purposes only.

3. The existing Colorbond fence satisfies any privacy concerns of both the applicants and the respondent.

4. From my observations, there is a mix of Colorbond fences and timber paling fences used in the locality, and neither the applicant nor the respondent gave evidence as to fence type preference.

5. Neither party identified any policy or code relating to dividing fences adopted by Georges River Council;

6. Neither the Georges River Local Environmental Plan 2013 nor the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 express a preference for fence type.

7. The Colorbond fence is not a dividing fence affecting land the subject of a lease under the Western Lands Act 1901.

Findings

23. It was not in dispute, and I find, that the existing dividing fence is a dilapidated colorbond steel fence on steel posts, that is 2.4 metres high and approximately 26 metres in length along the shared boundary. 

24. It was not in dispute, and I find, that the existing dividing fence was located on or near the common boundary line.

25. It was not in dispute, and I find, that the existing 26 metres Colorbond steel fence is not a sufficient dividing fence.

26. In accordance with s 7 of the Dividing Fences Act 1991, contribution to costs between adjoining owners, generally adjoining owners, are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence. In this case, this means a standard Colorbond fence standing at 1.8 metres from existing ground level. Further, an adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence. Orders will be made for the parties to equally share costs for the replacement of a standard height Colorbond fence. Any costs related to the extra height are to be borne by the applicant at their discretion.

27. The quotations for a new fence submitted by the applicant and respondent both lacked clarity as to the separation of costs for a standard height Colorbond fence compared with a fence of greater height as desired by the applicant. Additional quotations are required to satisfy both parties.

Contribution by the parties

28. The starting point is that each neighbour should pay half the cost of the fence, unless there are appropriate reasons to depart from this, such as the replacement fence is a different type and higher standard than the current fence. In this case, the applicant seeks to build a fence of additional height (2.4 metres above existing ground level).

29. I did not understand either party to submit that they should not be required to contribute 50% of the costs of constructing a new standard height dividing fence and I am satisfied that each party should contribute 50% of the costs of constructing the new standard height dividing fence.

30. Previous quotations obtained by both parties did not differentiate the costs of construction of a standard height fence from the costs of a fence of additional height, which renders these quotes inadequate. I will order each party to contribute a proportionate amount to pay the fencer for the construction of a standard height fence, rather than each party contributing a fixed amount. The applicants must use a suitably licensed fencing tradesperson. Should the applicant choose to construct a fence of additional height, the costs of the additional height of the new fence shall be borne by the applicant and undertaken at their discretion.

Orders:

31. The Orders of the Court are:

1. The application is upheld in part.

2. Within 6 months of the date of this judgment the respondent is to engage and pay for an AQF level 3 arborist to inspect Tree 1. Any dead and declining limbs identified by the arborist are to be pruned in accordance with the relevant provisions of AS4373: 2007 - Pruning of Amenity Trees.

3. The work in Order (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

4. Commencing 24 months after the first inspection, the work in Order (2) is to be undertaken every 60 months for the life of the tree.

5. The application to remove the trees is dismissed.

6. Within 30 days of the date of these orders the applicant is to obtain, and provide to the respondent copies of three quotes for the replacement of the Colorbond dividing fence with a new Colorbond fence of a standard not greater than the standard for a sufficient dividing fence (1.8 metres from existing ground level) including any works required for the installation of supporting posts. The quotes are to be for the full extent of the shared boundary (26 metres in length) and are to include removal of the existing fence.

7. Within 90 days of the date of these orders the applicants are to engage and pay for a contractor to carry out the fence replacement works.

8. On reasonable notice, the respondent is to allow all access required for these works during reasonable hours of the day.

9. Within 14 days of receiving a receipted invoice from the applicants for the completed fencing works, the respondent is to pay the applicants 50% of the cheapest quote from Order (6).

P Nichols

Acting Commissioner of the Court

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Decision last updated: 20 November 2024