Somerville v Passfield

[2021] NSWLEC 1137

Land and Environment Court

New South Wales

Medium Neutral Citation:

Somerville v Passfield [2021] NSWLEC 1137

Hearing dates:

10 March 2021

Date of orders:

10 March 2021

Decision date:

10 March 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The Pt 2A application is refused.

(2) The Pt 2 application is granted to the extent of the orders below.

(3) Within 30 days of the date of these orders the applicant is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to prune the tree as follows (and see photos in Annexure A):

(a) Remove low branches within 2 metres of the roofs of both the applicant’s dwelling and the respondent’s dwelling, pruning to branch collars or reducing to suitable lateral branches;

(b) Prune branch stubs remaining from previous pruning back to branch collars.

(4) The pruning works are to be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(5) The applicant is to give the respondent at least 7 days’ notice of the works by letter placed under the respondent’s front door.

(6) The respondent is to allow any access necessary for the works to be completed.

(7) The exhibits are returned, except for Exhibits A, B and C.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Part 2A application – Part 2A only applies to two or more trees planted to form a hedge – Part 2A application refused – Part 2 application – damage to property – nuisance – minor damage likely – past pruning – orders for pruning at applicant’s expense

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12; Pt 2A, ss 14A, 14B

Texts Cited:

AS 4373–2007 ‘Pruning of amenity trees’

Inner West Council, Tree Management Development Control Plan (2020)

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

Category:

Principal judgment

Parties:

Lindsay Somerville (Applicant)
Allan Charles Passfield (Respondent)

Representation:

L Somerville (Litigant in Person) (Applicant)
A Passfield (Litigant in Person) (Respondent)

File Number(s):

2020/333779

Publication restriction:

No

Judgment

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

Background to the application

1. Mr Somerville (‘the applicant’) owns a residential property in Newtown. He has applied to the Court seeking orders for a tree in a neighbouring property to be pruned. The tree overhangs the rear garden of Mr Somerville’s property. The tree belongs to Mr Passfield (‘the respondent’). Mr Somerville’s issues with the neighbouring tree include: overshadowing; debris falling from the tree; branches scraping on the roof; and noises from animals in the tree. Mr Somerville has made his application pursuant to both s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), relating to damage and injury caused by a tree, and s 14B (Pt 2A), relating to hedges obstructing sunlight and views.

Part 2A application

2. Part 2A of the Trees Act only applies to groups of two or more trees planted to form a hedge (s 14A). Mr Somerville’s application includes only one tree, which is not part of a hedge. Therefore, no orders can be made in his Pt 2A application.

Pt 2 application

3. For the Court to make orders in Mr Somerville’s Pt 2 application, I must be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the his property; or is likely to cause injury to any person (s 10(2)). I must also be satisfied that Mr Somerville has made reasonable effort to reach agreement with Mr Passfield (s 10(1)).

4. Mr Somerville has tried to contact Mr Passfield by telephone and by leaving letters under Mr Passfield’s door. He received no response. I am satisfied that Mr Somerville’s efforts to discuss the tree with Mr Passfield were reasonable.

5. According to s 3 of Inner West Council’s Tree Management Development Control Plan (2020) (‘the DCP’), Mr Somerville could carry out some minor pruning works, limited to those that are exempt from any requirement for Council’s consent, after consulting with Mr Passfield, which he has been unable to do. Furthermore, Mr Somerville wishes to carry out pruning works that would require Council’s consent. Any application to Council must be signed by Mr Passfield to demonstrate that he consents to the works. Frustrated by his inability to progress an application through Council, Mr Somerville applied to the Court.

6. To avoid any misunderstanding, I explained to Mr Somerville at the outset of the hearing that the matter is now within the jurisdiction of the Trees Act, with the Court’s power to make orders limited by relevant sections of the Trees Act, particularly ss 9 and 10. The Court is not assuming Council’s authority to grant consent to works under the DCP, as it would do pursuant to an appeal against a determination made by Council.

7. The hearing took place onsite, with both parties self-represented. Two officers from Inner West Council attended as observers. Appropriately, neither party provided arboricultural evidence – the tree is relatively small, and I applied my own arboricultural expertise when making ground-based observations.

The tree

8. The tree overhanging Mr Somerville’s property is a Cheese Tree (Glochidion ferdinandi) (‘the tree’) approximately 8 metres tall with a stem diameter of approximately 30 cm. This healthy tree provides shade to both properties and shelter for birds and other fauna.

9. Most of the issues that concern Mr Somerville are best described as ‘nuisance’: leaves, berries and animal droppings falling from the tree, cats fighting in the tree, and shading caused by the tree. Although such issues might be relevant to consider, they do not amount to ‘damage’ or ‘injury’. They do not meet the threshold test at s 10(2) of the Trees Act, and they are not issues to be addressed by orders at s 9.

10. There were no apparent hazards present during the onsite view. Lower branches extending above both Mr Somerville’s dwelling and Mr Passfield’s dwelling rub against their roofs and guttering. Some minor damage is likely, but can be easily avoided by pruning to create some clearance between dwellings and branches. Such pruning would fall under the exemptions described in the DCP, so would not ordinarily require Council consent. Minor though any damage might be if the branches remain, it is sufficient to satisfy the threshold test at s 10(2), so orders can be made.

11. Some years ago, Mr Somerville undertook some branch removal over his property, leaving two branch stubs on the tree’s stem. Pruning was not done according to the relevant standard (AS 4373 ‘Pruning of amenity trees’) and the presence of these branch stubs increases the likelihood of decay pathogens affecting the stem over time. The pruning was done without Council consent and without consulting Mr Passfield.

Relevant matters

12. Having found that the tree is likely to cause damage in the near future, I must consider the matters set out at s 12 of the Trees Act before determining appropriate orders. Relevant matters are identified below.

13. The tree provides shade, cooling these gardens on summer days. Mr Passfield expressed his appreciation of this. The tree contributes to amenity of both properties and to the neighbourhood more generally, being visible from the residential street to the properties’ rear.

14. The pruning required to clear branches from the dwellings could ordinarily be done without Council consent. Had Mr Somerville been able to consult with Mr Passfield, he might have undertaken the pruning himself.

15. Mr Somerville’s past pruning has resulted in the need for some corrective pruning. The cost of all pruning being ordered should be relatively low. Considering the above, I find it appropriate that Mr Somerville should pay for the pruning works.

Orders

16. The Court orders that:

1. The Pt 2A application is refused.

2. The Pt 2 application is granted to the extent of the orders below.

3. Within 30 days of the date of these orders the applicant is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to prune the tree as follows (and see photos in Annexure A):

1. Remove low branches within 2 metres of the roofs of both the applicant’s dwelling and the respondent’s dwelling, pruning to branch collars or reducing to suitable lateral branches;

2. Prune branch stubs remaining from previous pruning back to branch collars.

4. The pruning works are to be done in accordance with AS 4373 ‘Pruning of amenity trees’ and the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

5. The applicant is to give the respondent at least 7 days’ notice of the works by letter placed under the respondent’s front door.

6. The respondent is to allow any access necessary for the works to be completed.

7. The exhibits are returned, except for Exhibits A, B and C.

………………………………..

D Galwey

Acting Commissioner of the Court

Annexure A (516215, pdf)

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Decision last updated: 16 March 2021