New South Wales Supreme Court CITATION : Nair v Edwards [2006] NSWSC 1310 HEARING DATE(S) : 22 November 2006 JUDGMENT DATE : 22 November 2006 JURISDICTION : Equity Division JUDGMENT OF : Windeyer J at 1 DECISION : Summons dismissed CATCHWORDS : TORTS - nuisance - injunction to restrain threatened nuisance - trees planted near boundary - whether trees may interfere with neighbour's property and constitute a future nuisance - no imminent threat Leela Nair (First Plaintiff) PARTIES : James Chong (Second Plaintiff) Susan Therese Edwards (Defendant) COUNSEL : J E Armfield (Plaintiffs) F Kalyk (Defendant) SOLICITORS : Huston Dearn O'Connor (Plaintiffs) Maddocks Lawyers (Defendant) - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J WEDNESDAY 22 NOVEMBER 2006 4845/06 - LEELA NAIR and ORS v SUSAN THERESE EDWARDS JUDGMENT 1 HIS HONOUR: This is an application by the plaintiffs for relief by injunction restraining the defendant from keeping her property in a way which the plaintiff claims constitutes a threat to their own use and occupation of their own property. The first plaintiff, Ms Nair has given the relevant evidence in the case. She fears that if the defendant's property is left as it currently is, then damage will soon be caused to her property or her use of it. I give this explanation to stop talking in Latin terms. 2 There are two claims made. The major contention in this case has been a claim in respect of what are known as Leighton Cypress pine trees which the defendant has planted on her property, and particularly in respect of 27 of those trees which have been planted along the common boundary between the property number 4 Herberton Ave Hunters Hill owned by the plaintiff, and number 6 Herberton Ave Hunters Hill which is owned by the defendant. 3 The claim of the plaintiff is that if those trees are allowed to remain along that boundary, that in a relatively short time if unchecked they will constitute a nuisance to her property. 4 The evidence, I think, establishes that to be the position. In other words the really unchallenged evidence is that if the trees are not kept pruned then, within about six months, they will encroach upon the property of the plaintiffs and probably in two or three years they will reach above the roof, causing damage to the guttering, blocking of the guttering, debris to fall, and thus damage to that property, and interference with the plaintiffs' occupation of it. 5 I do not think that is in any way contested. The trees are of a type that grows particularly fast. That is one reason why they have been put in by the defendant. She says they have not been put in to interfere with the enjoyment by the plaintiffs of their property, but are put in with the intention of establishing what she calls an enclosed garden on her property. For that reason the Leighton Cypress trees have been placed not only on the common boundary between the contesting properties but along the rear of No 6 as well. 6 It is fair to say the defendant has planted a considerable number of trees on the land, considering the size of her land. 7 The other matter the subject of these proceedings, and which took a minor part until we got into submissions, is the claim that the defendant has raised the surface of part of her land above the height that it was some short time ago by putting fill against the wall of an old stone garden shed wall which, by a survey in evidence, appears to have been erected, on the boundary between the two properties. What is claimed is that the effect of the fill is to increase the moisture which is absorbed by the common boundary wall on one side of the shed, thereby damaging it and causing it to deteriorate. 8 The evidence I think establishes that any absorption of water will affect the stability of the wall. There is, however, no evidence, at least from that expert, as to the amount of dampness prior to the fill being put in place and the amount of dampness at the present time. I find it to have been reasonably established by his evidence -- and accepting for the moment that the additional fill was approximately 300 mm in height -- that at least so far as the dampness to the wall and deterioration of it is concerned, then the deterioration will occur over a greater area. 9 What Ms Nair is concerned about, and it is understandable, is that if the trees are left to grow untrimmed then they will in a relatively short time constitute a nuisance. She fears that the defendant may allow this to happen. It is also fair to say that she is particularly concerned that, because the defendant has the property up for sale, a future owner of number 6 may allow the trees to grow unchecked. 10 What the first plaintiff says is that the defendant has not been prepared to give any undertaking as to keeping the trees to an appropriate level, which appears to be a level of up to about 3 meters. The defendant says, first, that she has trimmed the trees twice up to the level of between 1.8 meters and 2 metres, and perhaps 2.2 metres. Secondly, she has told the first plaintiff -- and I should say this evidence has not been challenged -- that she does not intend to interfere with the plaintiffs' rights to enjoy No 4 and she intends to respect those rights. As she says this is evidenced by the fact that she has twice trimmed the trees. 11 The evidence really relevant to this matter is that if the trees are not trimmed then there will be a nuisance from overhanging branches within six months or slightly more and that within three to five years the ground roots of the trees will reach the retaining wall. There is evidence as far as can be determined that some number of years after that the roots might begin to cause the wall to disintegrate but that would be sometime after five years. The roots which would reach the wall in one or two years were said to be very fine fibrous roots which of themselves would not constitute a nuisance. They might, however, at a later time. As I have said, if either of those things happened, not the roots reaching the wall but protruding into the plaintiff's land causing damage by way of interference with foundations and the like, there would be a cause of action in nuisance. 12 The question though at the present time is whether there is a real possibility of what might be described as imminent nuisance with substantial damage occurring from that imminent nuisance. I consider six months would be close enough to be an imminent problem. I do not accept, however, that the plaintiff has established that there is in ordinary terms a real possibility of this occurring. I accept the evidence of the defendant as to this and as to her intentions. As to what might happen if number 6 Herberton Avenue comes into the hands of another owner this is not something that the Court can consider at this time in this action. 13 That finding finishes the matter so far as the trees are concerned. 14 So far as the shed is concerned, there is some difficulty. Firstly, although counsel for the plaintiffs stated at the outset that the orders sought in the summons are not orders he would seek and he would wish to have some amendment made to them no alternative orders have been put forward. The order which is sought in respect of the filling said to have been placed against the shed wall is that the defendant remove all the fill placed against the wall during 2006 within five metres of the common boundary. That is a mandatory type order which would not normally be made in a nuisance case. There would have to be some restraining injunction imposed if the Court found that to be appropriate. 15 As I have said, I would not let this matter go off on some technicality as counsel for the plaintiffs did indicate at the commencement of the hearing that there could be some problems with the orders sought. He was signalling what orders were required in respect of the injunction in respect of the trees. What is sought in respect of the fill against the wall is really an injunction about an existing and continuing nuisance. I have come to the conclusion that this is one of those cases which would not justify an injunction even if one were formulated in proper terms. It is not possible for the Court to come to the conclusion that the additional fill which has been placed against the wall of the shed has caused such damage that an injunction would be appropriate. It must be remembered that under the ordinary land slope number 6 Herberton Ave is higher than number 4 Herberton Avenue and that there will be water flowing as a matter of course from number 6 to number 4. There was, according to the photographs, fill placed against the wall prior to 2006. It has not been established to what extent any additional damage is caused by the additional fill, except to say that it is clear from the expert evidence that any water penetration would cause the wall to deteriorate but the extent to which additional deterioration has been caused by filling, the Court cannot tell. 16 In my view that would not be a matter which would require an injunction to be ordered. This action is really about trees. The damage to the wall is small and not sufficiently proved. Half of the wall belongs to the defendant. I consider damages would be the appropriate remedy and there is no claim for damages. 17 I have come to the conclusion that the claim should be dismissed and orders made accordingly. 18 Order the summons be dismissed. The plaintiffs to pay the defendant's costs. The exhibits may be returned. 19 I should add before finishing that this is a case which should never have come before the Court. I have no idea whose fault it is but there has not been proper communication between the parties. I do not wish to go into that. I said before lunch it would be most unfortunate if the parties had a judgment from the Court so that one appears to be the winner. That is, I think, unfortunate but there is nothing further the Court can do about that. This is a case where a little bit of commonsense and a little bit of discussion between the parties would have been much better than solicitors writing voluminous letters to each other and the matter being brought before the Court. ********** 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.