Land and Environment Court of New South Wales CITATION : Vine v Sproats [2009] NSWLEC 1029 APPLICANT Victoria Vine PARTIES : RESPONDENT C E Sproats FILE NUMBER(S) : 20917 of 2008 CORAM: Taylor C - Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- Reduction of light by overhanging tree, need for evidence to support claims of damage LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 DATES OF HEARING: 27/01/2009 EX TEMPORE JUDGMENT DATE : 27 January 2009 APPLICANT Mrs V. Vine and Mr L. Vine, litigants in person LEGAL REPRESENTATIVES: RESPONDENT C E Sproats, litigant in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Taylor C Thyer AC 27 January 2009 20917 of 2008 Victoria Vine v C E Sproats JUDGMENT The extemporaneous decision was given on 27 January 2009. This written judgment includes the findings given on-site, relevant observations and background information. 1 COMMISSIONERS: A Camphor Laurel tree and a Hills Fig tree are growing in the yard of 316 Jersey Road, Woollahra, close to the southern boundary. These large trees are about 15 m apart, with the Fig tree located close to the Jersey Road frontage, and the Camphor Laurel tree located about halfway along the boundary adjacent the tennis court. Mrs Sproats is the owner of 316 Jersey Road. Mr Sproats was her agent at the hearing. 2 Mrs Vine is the owner of the adjoining property to the south. She has made an application under the trees disputes between neighbours act 2006 to rectify or prevent property damage. She seeks orders for pruning of three branches of the Camphor laurel tree and some pruning of high foliage of both trees. Mr Leonard Vine was her agent at the hearing. 3 Mr Lester Willis, an arborist engaged by Mrs Vine was present at the hearing. He has previously pruned the trees at her request. An expert witness report prepared by him makes part of Mrs Vine's application. 4 For Woollahra Municipal Council; David Sheils (Manager, Public Open Space) and Simone Zeibots (Tree and Landscape Officer) appeared. The Council lodged with the Court and provided to the parties on 23 January 2009 a tree report prepared by Ms Zeibots. Provision of that report was within the time frame set in s 12 of the revised Directions for this matter. 5 Various statements in Mrs Vine's application suggest that the application seeks to use damage by roots of the Camphor Laurel tree as a means to having the Court order pruning of branches of that tree and the Fig tree. Discussion at the hearing revealed that this was in fact the case. It also became clear that Mrs Vine had taken this course because she could not apply to the Council for consent to further prune those parts of Mrs Sproats' trees that overhang the Vine property, without Mrs Sproats' agreement, and that agreement had been refused. 6 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person? 7 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 8 We inspected the trees both from Jersey Road outside the properties, and from the backyard of Mrs Vine's property. Mr Sheils explained Council's concern to protect larger and older trees in the Municipality, particularly those that were very visible from public spaces, as is the Fig tree. We observed that the Fig tree has been pruned well clear of Mrs Vine's house, creating the effect of a high hedge near the common boundary, but that the tree has normal canopy development with long branches over the large area between the common boundary and Mrs Sproats' house. 9 We note that the supplementary form Damage to Property in Mrs Vine's application, lists claims of: + Root damage to wall, sewer and storm water; + Heavy foliage hanging low over large established Camellia trees, gardens and lawn area; + Branches with heavy foliage could break off in heavy weather; + Severe reduction of light and sun to property damaging Camellias, garden and lawn area. 10 We noted from the application and confirmed at the hearing that there is no claim of past, present or likely in the near future damage, or risk of injury by the Fig tree. On that basis we find that the Fig tree does not meet any of the tests in s 10(2) of the Act, and we cannot make any orders regarding it. 11 We were told of blockages to the sewer branchline near the camphor laurel tree but no evidence was provided that the roots were from the Camphor Laurel tree. We were also advised of sewer blockages on the far side of the yard, and that the sewer is old earthenware pipes. We find that without identification of the tree roots that blocked the sewer, we do not have a comfortable level of satisfaction that it was the Camphor Laurel tree, as there are other trees nearby. 12 We were not shown any location of, or given any evidence at the hearing of stormwater blockage. 13 In relation to the brick wall on the common boundary, we observed a separation of about 5 mm in the material of the vertical expansion joint of the brick wall adjacent the trunk of the Camphor Laurel tree. We were advised that the wall was built about seven years ago to an engineer's specification that took into account a root of the Camphor Laurel tree growing in to Mrs Vine's property. We find that as there has been no investigation of the cause of the separation of the sections of wall, we do not have a comfortable level of satisfaction that it has been caused by the Camphor Laurel tree. 14 We were advised that one branch fell from the Camphor Laurel tree in a storm about six years ago but we have not been provided with any other record of branch failure or likelihood of branch failure. On that basis we find that further branch failure is not likely, and therefore the tree is not likely to cause damage in the near future or injury. 15 With regard to severe reduction of light and sun, we did not see any damage that might have been caused by the Camphor Laurel tree overshadowing. Mrs Vine's garden appeared to be healthy and attractive, and the plants suitable for the environment of the backyard. Matters of light and view were addressed by Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 [paras 86, 135 & 173]. 16 Having considered the various claims regarding the Camphor Laurel tree, we find that it does not meet any of the tests in s 10(2)(a) of the Act, and we cannot make orders regarding it. 17 We note that at the hearing the Council representatives advised that Council would consider a new application for pruning if it was submitted. We also note that Mrs Vine is willing to identify the branches she wants pruned by tying clearly visible tape at the proposed points of pruning; and Mr Sproats advised that he and his wife would consider giving their agreement to that pruning. 18 As neither of the trees has satisfied any of the tests in s 10(2) of the Act, we will dismiss the application Orders The orders of the Court are that the application is dismissed. _________________________ ______________________________ Mark Taylor Peter Thyer Commissioner of the Court Acting Commissioner of the Court The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.