Shagrin v O'Neil

[2010] NSWLEC 1368

Land and Environment Court

of New South Wales

CITATION:	Shagrin & Anor v O’Neil & Anor [2010] NSWLEC 1368
PARTIES:	APPLICANTS A & L Shagrin RESPONDENTS J & A O’Neil
FILE NUMBER(S):	20624 of 2010
CORAM:	Moore SC - Fakes C
KEY ISSUES:	TREES (NEIGHBOURS) :- Damage to property; interruption to views
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Barker v Kyriakidis[2007] NSWLEC 292 Tenacity Consulting v Waringah [2004] NSWLEC 140
DATES OF HEARING:	8 December 2010
EX TEMPORE JUDGMENT DATE:	8 December 2010
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
FAKES C

8 December 2010

20624 of 2010 A & L Shagrin v J & A O’Neil

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

1 SENIOR COMMISSIONER: In these proceedings, Mr and Mrs Shagrin have made applications under both Part 2 and Part 2A of the Trees (Disputes Between Neighbours) Act. The applications between them relate to a number of Banksia trees planted on the side boundary and in the front setback of the property to the south owned by Mr and Mrs O’Neil. It is necessary for us to consider each of the applications under the two Parts of the Act separately as different jurisdictional tests apply with respect to them.

2 Before commencing that analysis, we also note that, during the course of the proceedings, Mr and Mrs Shagrin made an application for leave to amend their application under Part 2 of the Act to incorporate an application concerning a number of tree ferns located along the side boundary shared between the two properties. The basis of that application was s 10(2)(b) of the Act in that it was said that those trees were likely to cause injury to any person arising from the irritation that Mrs Shagrin says she suffers in her eyes from pollen or other material that is deposited by those tree ferns, and also pursuant to s 10(2)(a) concerning what they say is a risk of damage to their property. We declined leave to amend but make the specific observation that, because the tree ferns were not the subject of the original application, this ruling does not preclude some separate application being made with respect to those plants. We did observe during the course of rejecting the application, that we were satisfied that tree ferns under the circumstances satisfied the definition of a tree, being a plant resembling a tree in form and size, and were thus within the scope of the legislation.

3 We turn first to the question of the application under Part 2 of the Act.

4 The application under Part 2 relates to a number of matters. The first is the small retaining wall at the front of the two properties located on the southern side of the driveway leading to the Shagrins' garage which is located close to the front boundary of the property. We have in evidence a survey certificate that shows, in our understanding of it, clearly that that wall is located entirely on Mr and Mrs O’Neil’s property and that, although damaged, it is not the applicant’s property located on the applicant’s property and therefore is not within the scope of the Act.

5 If the wall has moved as a consequence of its displacement as dealt with in a builder’s report that is in evidence before us, so that part of the wall as a consequence of that displacement is now located above and intruding into Mr and Mrs Shagrin’s property, it nonetheless remains in our view in Mr and Mrs O’Neil’s ownership and is still not brought within the scope of the Act. Therefore, to the extent that that retaining wall is part of the application, we are satisfied that we do not have jurisdiction to deal with it. We note that Mr and Mrs O’Neil have indicated that they propose to reinstate the wall. It is not a matter for this Court to make any orders about or to seek any undertakings concerning this wall.

6 The second aspect of damage that is raised with respect to s 10(2)(a) of the Act is the intrusion of water into Mr and Mrs Shagrin’s garage. It is said that that arises as a consequence of the pressure of the Banksia trees along the side boundary on a structural retaining wall recently constructed by Mr and Mrs O’Neil. That construction was in the recent past as part of the construction of their dwelling on the site. We are satisfied on the basis of the engineering evidence that is before us that that wall is properly and adequately constructed. Mr and Mrs Shagrin’s garage roofing is attached (by grace and favour of the respondents) to that wall rather than being part of a free-standing garage structure entirely on their own property. We assume for the purposes of this discussion, taking Mr and Mrs Shagrin’s case at its highest, that the intrusion of water into their garage in fact constitutes damage for the purposes of the legislation, although we saw nothing other than the mere penetration of water. There are other issues relating to cracking of the garage which we will discuss further shortly.

7 Taking Mr and Mrs Shagrin’s case at its highest, we are satisfied that there are two contributing causes of damage, if it be damage, to their garage by water penetration in the south-eastern corner. First, it is clear that there is an inappropriately undertaken repair to the point of joinder of the existing wall and the new retaining wall in the south-eastern corner of the garage. The mastic waterproofing and sealing associated with a piece of timber that has been inserted into the joint appears to have been undertaken in an unprofessional and/or incompetent fashion, and may be permitting the penetration of water into the side cavity and thus into the garage. Secondly, there were a number of leaves and other pieces of detritus deposited by the Banksia trees that appeared in the Shagrin’s guttering at the rear of their garage and, on the uncontradicted evidence given to us by the Shagrins, also caused blockage of that and of the drain immediately below it at the rear of the garden.

8 Continuing to take their case at the highest and accepting that there is damage, it would appear to us, for that purpose, that the damage has either been caused or contributed to by the blockage of the gutters by detritus deposited by the Banksia trees. The consequence of that finding is that, taking the case at the highest, there is damage and it has been caused or contributed to by the deposition of material from the trees, thus satisfying the first test under s 10(2)(a) of the Act. As a consequence, we therefore move to consider discretionary matters as to whether or not we should make any orders with respect to any damage that may have been so occasioned.

9 In Barker v Kyriakidis[2007] NSWLEC 292, the Court published a tree dispute principle which indicated that, for parties who have the environmental and aesthetic benefit of trees in an urban area, there was a concomitant responsibility to undertake ordinary, regular and routine maintenance of their property, and that the deposition of twigs, leaves, fruit, nuts, berries and the like that fall from such trees and might otherwise cause damage within the scope of s 10(2)(a) of the Act ought to be the subject of a reasonable requirement to undertake maintenance and that damage occasioned by such deposition would not, unless there were exceptional circumstances to displace this presumption, result in orders of the court ordering any interference with or removal of a tree. We consider that there is nothing in these proceedings that is extraordinary that would warrant the displacement of that general principle stated in Barker v Kyriakidis.

10 As a consequence, taking the applicant’s case at its highest with respect to damage to their garage, that is that the deposited material from the Banksias has caused or contributed to damage to their garage, as a matter of discretion, consistent with the principle in Barker v Kyriakidis, we would not make any order and that element of the application is dismissed.

11 We turn now to the cracking of their garage structure.

12 As we have earlier indicated, we are satisfied that the major retaining wall on the O’Neils’ property is properly and adequately constructed, and there is no evidence of any displacement of that wall whether by the trees or otherwise that could have caused or contributed to cracking of the garage. In any event, in the photographic evidence that has been provided, there is clear evidence (on our interpretation of the relevant photograph) that the cracking at the front of the garage of which there is complaint was in existence prior to the construction of the retaining wall and the planting of the Banksias. As a consequence, that element of the application is also dismissed.

13 The result of all of the foregoing is that the elements of the application pursuant to Part 2 of the Act are dismissed in their entirety.

14 We turn now to the question of obstruction to views from Mr and Mrs Shagrin’s property. These are dealt with under Part 2A of the Act and that requires a number of jurisdictional tests to be met. The first, arising from s 14A(1), makes it clear that the Part applies only to groups of two or more trees that are planted so as to form a hedge and that rise to a height of at least 2.5 m above existing ground level.

15 We are satisfied under the present circumstances that there are two hedges planted, it is clear, on the O’Neil’s property.

16 The first is a group of Banksia trees that run along the side boundary in the vicinity of the retaining wall to which reference has already been made, and the second is a hedge running along the front of the property in a north-south direction. We are satisfied that each of these groups comprises a group of two or more trees, trees that were planted, trees that were planted to form a hedge and trees that rise to a height of at least 2.5 m above ground level. As a consequence, that element of the jurisdictional tests has been satisfied.

17 The Shagrins say to us that the northernmost tree of the front hedge and the westernmost tree of the side hedge act together to cause a severe obstruction of a view from their dwelling, and that that view is a view enjoyed from the principal living room of their dwelling and is enjoyed from both a standing and a seated position. In the Court’s planning principles concerning views and impacts on them, a number of matters were discussed by Roseth SC including the appropriateness of assessing the nature of the view with which there be interference (see Tenacity Consulting v Waringah [2004] NSWLEC 140). His judgment said that views of iconic items such as the Sydney Opera House, for example, that being a matter specifically cited in his judgment, were to be regarded as iconic and would have greater impact and value than those that were merely district views or distant views of another nature.

18 We are required to consider whether or not the impact of the trees on the views from the Shagrins’ property constitutes a severe obstruction or not; if so, whether we should intervene; and particularly whether the severity and nature of the obstruction is such that the applicants’ interest in having the obstruction removed, remedied or restrained outweighs any other matters that suggest the undesirability of disturbing or interfering with the trees by making an order. A variety of other matters for consideration are then set out in s 14F of the Act.

19 During the course of our site inspection, we observed the views from the Shagrins’ lounge room window and observed, at the eye heights in descending order of height of Moore SC, Mr Shagrin and Fakes C, that the views that the most northern of the trees in the front hedge on the O’Neils’ property obstructed and almost entirely removed both the standing and sitting views of the Sydney Opera House. Although there is a generally pleasant outlook from that room in the Shagrins’ house, including elements of water view of Sydney Harbour and including a view of the Sydney Harbour Bridge, we are satisfied that the interference with that element of the view that is to the Sydney Opera House constitutes under the circumstances a severe impact on that view. We are satisfied that that impact is occasioned by only one of the trees, that being the most northern of the north-south running hedge of trees along the front of the O’Neils’ property.

20 We have considered what contribution, if any, that tree makes of any particularity to the privacy of the O’Neils’ property. Because it is on the corner where the two hedges intersect, and the Banksias that are in the front setback hedge (other than the most northern of them) act in combination with the trees along the side boundary, having regard to the height of those trees above the adjacent footpath, we are satisfied that there is no interest of the O’Neils’ that would outweigh the consideration of removal of that obstruction and interference with the Shagrins’ view. We have considered the range of other matters that are set out in s 12F and are satisfied that there is no basis upon which we should be persuaded to do other than order the removal of that tree.

21 As a consequence, we have concluded with respect to the application under Part 2A of the Act that the O’Neils should be required to remove in its entirety the most northern of the trees in the north-south running element of the hedge and that there should be no tree replanted in its place. We are satisfied that that removal should take place, as it is not a substantially significant arboricultural activity for its removal, within a comparatively brief space of time, significantly shorter than that postulated by Mr and Mrs O’Neil of six months, and indeed in a lesser period of time than that proposed by Mr and Mrs Shagrin of four months at most. We are satisfied that we should order that that tree be removed by the close of business on 1 February 2011.

22 There are two further matters with which we should deal.

23 The first is that Mr and Mrs O’Neil propose that the cost of any works to be undertaken should be met by the applicants. We deal with that in comparatively short order. The tree that causes a severe and unacceptable impact on a view from Mr and Mrs Shagrin’s dwelling was planted by the O’Neils as part of the redevelopment of their property. They ought to have understood at the time of planting, and if not at the time of the planting, as a result of subsequent complaints, that there was an unacceptable interference with views from the Shagrins’ property caused by that tree. As a consequence, there is no reason why we should other than require them to meet the cost of removal of the tree.

24 The final matter of a merit nature that we should deal with is the complaint by the Shagrins that the trees interrupt their view of the setting sun particularly during, as we understood their evidence, the summer months. We do not consider that the interference with the view of the setting sun adds anything that would increase of any significance the severity of the obstruction of the view occasioned by the tree to which we have referred of their views of the Opera House. We are satisfied that the extent to which there might be an obstruction of the view of the sunset does not constitute any separate severe obstruction of a view from their dwelling warranting any greater order being made than that which we have foreshadowed.

25 As a consequence, the orders of the Court are as follows.

1. The application made pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) is refused.
2. The application pursuant to Part 2 of the Act is granted in part.
3. The respondents are to remove the northernmost Banksia integrifolia from the hedge running in a north-south direction along the front of their property.
4. The respondents are to do so by the close of business on 1 February 2011.
5. The cost of the removal of the tree is to be met by the respondents.
6. The removal is to be undertaken by an arborist with at least AQF Level 3 qualifications and appropriate WorkCover insurances.
7. No tree is to be planted to replace the removed Banksia integrifolia.

Tim Moore

Senior Commissioner

Judy Fakes

Commissioner of the Court