Tyler v Owners Corporation SP 44154

[2008] NSWLEC 1235

Land and Environment Court

of New South Wales

CITATION:	Tyler v Owners Corporation SP 44154 [2008] NSWLEC 1235
PARTIES:	APPLICANTS R & M Tyler RESPONDENT Owners Corporation SP 44154
FILE NUMBER(S):	20308 of 2008
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Trees (Neighbours) :- Overshadowing
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Yang v Scerri [2007] NSWLEC 592
DATES OF HEARING:	28 May 2008
EX TEMPORE JUDGMENT DATE:	28 May 2008
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENT Mr P Edmiston & Ms Wolters, members of the Strata Plan

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

28 May 2008

08/20308 Tyler v Owners Corporation SP 44154

JUDGMENT

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

1 COMMISSIONERS: Mr and Mrs Tyler live at 17 Woodbine Street, Normanhurst. Adjoining their property to the north is a two-residence strata plan property, Strata Plan 44154. Immediately adjacent to the Tylers’ property is a row of Cyprus trees along the common property of the strata plan. An Angophora is growing in the common property of the strata plan at the front adjacent to Woodbine Avenue.

2 Mr and Mrs Tyler seek orders for the removal of all of the Cypress trees and of the Angophora. They do not seek any order with respect to a Maple which is located at approximately one third of the distance along (and growing in) the row of Cypress trees adjoining their property.

3 The application for removal of the Cypress trees is put on a variety of grounds. It is convenient to address, against the tests contained in s 10(2) of the Trees (Disputes Between Neighbours) Act 2006, five issues relating to the Cypress trees. The location of these trees can be regarded as them being in three separate elements.

4 The first element is a group of Cypress trees to the rear of the Tylers’ property adjacent to the pathway and ramp leading to the rear of the Tylers’ garage. The second is the group of Cypress trees that extend toward but slightly to the rear of the meter box at the front of the Tylers’ property. The final group of Cypress trees is those from adjacent to the meter box to the front of the common property adjoining or in the vicinity of the services poles located on each of the properties.

5 In addition, there is the question raised by Mr and Mrs Tyler of roots from at least some of these trees which have penetrated the sub floor area of their property and finally the question of overshadowing of the Tylers’ rear yard.

6 Turning first to the question of the group of Cypress trees at the rear. Mr and Mrs Tyler are concerned that these will damage the ramp and pathway at some time in the future. They conceded to us that there is no present damage to the structure and there has been no such damage in the past. The relevant test, therefore, is the third of those posed by s 10(2)(a), is it likely in the near future that those trees will cause damage to the Tylers’ property?

7 Although it does not bind us, the Court has published a rule of thumb in Yang v Scerri [2007] NSWLEC 592 that an appropriate starting point for considering the near future in this context is a period of about 12 months from the date of the Court hearing of the matter. We do not see any reason from the age or growth of the trees or the past history of the trees (which have been there for some 20 years or so without causing damage to those structures) that it is likely in the near future that those Cypress trees would cause any damage to the Tylers’ property. This part of the application therefore fails.

8 With respect to the second group of Cypress trees, in the middle of the row, the same concerns are expressed with respect to the structure of the house and a similar position applies. There is no actual present or past damage demonstrated; the trees are of the same age as the others in the row and there is nothing which would cause us to conclude from these trees that it is likely in the near future that they will cause damage to Mr and Mrs Tylers’ property. This part of the application therefore fails.

9 As to the third group of Cypress trees towards the front, two matters are raised with respect to them. The first concerns the structure of the house and the second concerns the front tree where the services poles are located and the second tree where its branches are lightly touching a telecommunications cable leading to the Tylers’ house.

10 With respect to the damage to the Tylers’ house, the cracking in the vertical plane that is shown on the house (with the exception of a hairline crack immediately below the meter box) is all cracking which is above and to the front of the house from the meter box and appears to be associated with the location of the lintel bar for the structure within which the meter boxes contained. There is no significant vertical or other cracking of any other nature below the meter box. We are not satisfied that we could conclude that this cracking was caused by the Cypress trees rather than any alternative (such as inappropriate or inadequate installation of the lintel bar for the meter box, for example). This part of the application therefore fails.

11 With respect to the displacement of the footings, in the vicinity of the dampcourse, there appears to be a displacement of some 10 mm or so along a metre or so at the point of the dampcourse. We are not satisfied that this is consistent with the pattern of damage one would expect from tree roots rather than reactive clay movement in the soil. We are not satisfied to the extent required on the balance of probabilities that this would have been caused by the trees and their roots. This part of the application therefore fails.

12 However, if we are incorrect on this, the extent of the damage that has been occasioned in this area, if it were to be demonstrated that was caused by the Cypress trees, is quite minor and non-threatening to the structure of the house and the garage so that, as a matter of discretion, we would not order any intervention to these trees with respect to it in its present state.

13 As to the Cypress trees in the vicinity of the service cables, the fronds are not touching any of the exposed electric wires on the Tylers’ property and the fronds which are in the vicinity of the telecommunications cable do not appear to pose any likely risk of damage to either of those installations. We are not satisfied that we have any jurisdiction to make any order with respect to those. This part of the application therefore fails.

14 The final two matters relate to the question of lack of light and overshadowing of the Tylers’ backyard and their ability to dry their clothes and the possibility of internal damage to the house from tree roots.

15 With respect to the question of overshadowing, the then Attorney General, when introducing the legislation in November 2006, made it expressly clear that access to sunlight and access to views were not brought within the scope of the legislation and the Court was to be given no jurisdiction in this regard. The Court's jurisdiction will only be invoked if one of the four tests set out in s 10(2) of the Act, namely the trees have caused; are causing or are likely in the near future to cause damage to the applicant's property or are a likely risk of injury to any person can be answered in the affirmative.

16 We are not satisfied that there is any damage occasioned to the Tylers’ property as a result of overshadowing and overshadowing as a general proposition is excluded from the Court's jurisdiction. This part of the application therefore fails.

17 With respect to the Cypress tree roots, Mr Tyler was specifically asked whether there was any observable internal damage to the house and he indicated that, to his knowledge, there was not. We have considered the subfloor photographs of the tree roots which have been provided to us and there is no evidence in those photographs of any sub floor damage to the house. We are therefore not satisfied that any of the four tests under s 10(2) of the Act is satisfied concerning those roots of the trees. With respect to these Cypress tree roots, we see no reason to accept that the Court has any jurisdiction under the Act to make any order with respect to any of those trees. This part of the application therefore fails.

18 Having said that, we do note that the strata plan owners, as owners of the Cypress trees have indicated their intention to prune the trees and to undertake some trimming on the Tylers’ side but that is a matter to be settled between them and is not a matter that the Court should deal with in this application.

19 With respect to the Angophora, there have been two occasions in the past four years when branches have fallen on power lines across the face of the respondent’s properly. On each occasion, this has caused a loss of electricity in whole or in part to the Tylers’ dwelling but has not occasioned any fusing or any other damage to their property - whether to their chattels or to their house. There is, therefore, no basis for intervention with this tree on the basis of the tests in s 10(2)(a) of the Act.

20 On neither of these occasions did the branches bring the power lines down into the public domain thus there was no occasioning on those instances any risk of injury to any person. We have carefully considered the branch structure and canopy of the Angophora. It has a relatively open canopy with a relatively light limb structure. We are not satisfied there is any likely risk of failure and thus of injury to any person that requires any intervention with this tree on the basis of the test in s 10(2)(b) of the Act.

21 There being no basis under either s 10(2)(a) or 10(2)(b) of the Act to make any order with respect to the Angophora, we decline to do so.

22 The result of all the foregoing is that the application is dismissed.

Tim Moore Peter Thyer

Commissioner of the Court Acting Commissioner of the Court