Land and Environment Court New South Wales Medium Neutral Citation: Letts v Nikolaidis & anor [2015] NSWLEC 1117 Hearing dates: 23 April 2015 Date of orders: 23 April 2015 Decision date: 23 April 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Part 2 application upheld in part see [34] Part 2A application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; not applicable to future property on the land; Severe obstruction of views not found Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Freeman v Dillon [2012] NSWLEC 1057 Haindl v Daisch [2011] NSWLEC 1145 Category: Principal judgment Parties: Mr D L M Letts (Applicant) Mr L Nikolaidis and Ms B Nikolaidis (Respondents) Representation: Counsel: Applicant: Mr D Letts (Litigant in person) Respondents: Mr L Nikolaidis (Litigant in person) Solicitors: File Number(s): 20085 of 2015 Judgment 1. COMMISSIONER: The applicant owns adjoining lots in Newport. He contends that trees growing on the respondents' property are causing damage to the roof of his house and garage and other trees severely obstruct his views of Pittwater. He is also concerned that the trees may be a fire hazard and are noisy in windy weather. 2. The applicant has applied under both s7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for orders seeking pruning and or removal of the trees. The respondents' property adjoins both the applicant's lots and is to the south. The Part 2 application 1. In applications made under Part 2 of the Trees Act there are a number of jurisdictional tests that must be satisfied before the Court's powers to make orders under s 9 are engaged. 2. There are two groups of trees that are nominated in the Part 2 application. There is no numbering of individual trees in the application claim form; they are simply identified as cross-hatched groups/rows. 3. The first jurisdictional test is whether the trees the subject of the application are growing wholly or principally on the respondents' land. While there is some disagreement between the parties as to the actual location of the boundary at its eastern end, the respondents accept that the trees are growing on their property. 4. The key jurisdictional test in Part 2 is satisfaction of s 10(2) which states that the Court must not make an order under this Part unless it is satisfied that any of the trees the subject of the application have caused, are causing, or could in the near future cause damage to the applicant's property or could cause injury to any person. 5. On the northern side of the respondents' driveway is a row of mature Cupressus macrocarpa 'Aurea' (Golden Cypress). A number of these trees overhang, and have branches touching, the roof of the applicant's garage and a garden shed. It is not inconceivable, and the first respondent agreed, that the branches resting on the roof of these structures could have caused damage or could in the near future cause damage to them. I am satisfied that s 10(2) is satisfied for those trees that have branches touching the garage and garden shed and the Court can consider what orders are appropriate. 6. The applicant stated that he intends to build a new house on the site of the garage and he can't do so unless the majority of overhanging branches from the respondents' trees are removed. At the time of the hearing the applicant had not lodged a development application with Pittwater Council. 7. The Trees Act does not empower the Court to make orders that relate to property that is not yet on an applicant's land. 8. Neither party engaged an arborist to provide expert evidence. With the arboricultural expertise I bring to the Court, in my view crown-lifting of the trees in order to establish a clearance of a minimum of 1.5m from the roof surfaces is appropriate in the circumstances. If carried out according to the Australian Standard for the Pruning of Amenity Trees, it will not adversely affect the health of structure of the trees. The parties agreed that this is a reasonable and acceptable option in the current circumstances, notwithstanding the applicant's desire to accommodate a future dwelling on the site. 9. The second group of trees is located along the northern boundary of what is described by the first respondent as the northern courtyard. This is approximately mid-way along the boundary and adjoins the applicant's dwelling. 10. By way of background, in the two days prior to the on-site hearing, Sydney experienced a severe weather event including gale force winds and heavy rain associated with an east coast low pressure system. During this storm two Cypress trees fell onto the applicant's dwelling; five Cocos Palms either fell or were destabilised. On the day of the hearing the first respondent informed me that the trees and the damage they had caused to the applicant's dwelling had been assessed by an arborist and the respondents' insurer and were the subject of an insurance claim. While these trees are scheduled to be removed, it does no harm to include the removal of these trees in the orders. 11. There are three other Cypress trees in this group that have branches overhanging and touching the roof of the applicant's dwelling. For the same reasons put forward for the group of trees adjoining the garage, orders will be made for crown lifting to the same degree. 12. As is usual in these circumstances, the cost of the pruning and removal will be the responsibility of the tree owners, the respondents. However, orders will be made requiring the applicant to provide all reasonable access to enable the work to be carried out in a safe and efficient manner. 13. Given the recent and extensive storm damage and the volume of tree work to be undertaken throughout Sydney and beyond, the respondent seeks liberty to apply to the Court for an extension of time for the work to be carried out should there be an unexpected problem with the availability of an appropriately qualified arborist/ tree contractor. This was not opposed. 14. With respect to the potential risk of injury on the basis that the trees pose a risk of fire, the flammable nature of trees has been discussed in Freeman v Dillon [2012] NSWLEC 1057 at [86]. The Court has no jurisdiction to consider this issue as a tree is not a cause of fire. Any injury or damage arising from a burnt tree is a secondary effect arising as a consequence of a fire started in any of the usual ways. 15. As for the noise the trees make in the wind, there is no explanation as to how this may cause injury. However the crown lifting of the trees may assist. The Part 2A application 1. The parties' properties back on to the Pittwater foreshore and generally face Bayview on the opposite side of the bay; both parties have permissive use/ licenced occupancy of reclaimed land below the mean high water mark. 2. The trees the subject of the Part 2A application are a row of pruned Leyland Cypress beside a metal palisade fence which is an extension of a brush fence. The uncontested statement of the applicant is that the respondents installed the fence and planted the trees. 3. The claim form also mentions a row of Hibiscus beside the brush fence. During the hearing, the applicant stated that he no longer pressed any intervention with the Hibiscus. 4. The palisade fence and the trees extend to the edge of the seawall at the western end of the parties' properties. 5. There is a dispute between the parties as to the location of the common boundary in this vicinity. 6. There are several photographs in the application claim form that are captioned as being the placement of survey pegs by a surveyor Mr Ian Souter in 1996 when the boundary was surveyed for subdivision purposes. The location of the pegs in the photographs indicates that the palisade fence and perhaps the majority of the Leyland Cypress are located on land owned or leased (and therefore occupied) by the applicant. 7. Relevantly, s 14B states that: An owner of land may apply to the Court for an order to remedy, restrain or prevent a severe obstruction of: (b) any view from a dwelling situated on the land, if the obstruction occurs as a consequence of trees to which this Part applies being situated on adjoining land. 1. The definitions in s 3(1) of the Act provide that "owner of land includes the occupier of the land". 2. Therefore, on the basis of the photographs, it appears that the Court has no jurisdiction to consider these trees. However, given the absence of any current physical evidence of the pegs or a current detailed survey, and the contested position of the parties, the next jurisdictional test was considered. 3. Notwithstanding the unresolved matter of the location of the trees, I am satisfied that the Leyland Cypress trees are trees to which the Part applies and s 14A is met. 4. The other key jurisdictional test in s 14E(2) which states: (2) The Court must not make an order under this Part unless it is satisfied that: (a) the trees concerned: (i) are severely obstructing sunlight to a window of a dwelling situated on the applicant's land, or (ii) are severely obstructing a view from a dwelling situated on the applicant's land, and (b) the severity and nature of the obstruction is such that the applicant's 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 under this Part. 1. The nominated viewing position is from the west-facing living room window on the ground floor at the rear of the applicant's dwelling. The view said to be obstructed is an oblique view to the south west. A photograph in the application claim form, hand dated 2/2015, illustrates the view in question. The photograph illustrates that part of the view observed at the time of the hearing. A sliver of a view of water and boats is visible above the hedge in question. 2. The photograph includes a clear view across the water to the opposite shore, inclusive of the many boats moored in the bay. The full extent of the view as seen from that window during the hearing is a more expansive view of Pittwater to the west and northwest. There are also views to the southwest available through glass sliding doors on the southern façade of that room. 3. In Haindl v Daisch [2011] NSWLEC 1145 at [26] the Court states: However, we are of the opinion that the words a view used in s 14 relate to the totality of what can be seen from the viewing location and does not permit some slicing up of that outlook – thus requiring separate assessment of the severity of the obstruction of the view from a particular viewing location on some incremental, slice by slice basis. 1. Given the limited obstruction of one part of a more expansive view, I find that s 14E(2)(a)(ii) is not satisfied as the trees in question are not severely obstructing the view from the applicant's dwelling. 2. As a consequence, the Court has no jurisdiction to make any orders for any interference with the trees in question. Orders 1. The Orders of the Court are: 1. The application under s 7 Part 2 is upheld in part. 2. Within 60 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist, with appropriate and demonstrated current insurance cover, to prune any Cupressus macrocarpa (Cypress) growing over any structure on the applicant's property to achieve a clearance of a minimum of 1.5 m above the roofs of those structures. In addition, the respondents are to have removed, by an appropriately qualified, experienced and insured arborist the two Cypress Trees and five Cocos Palms that fell or were destabilised by the April 21/22 storms. 3. The pruning work is to be carried out in accordance with AS4373: 2007: Pruning of Amenity Trees and all work is to be undertaken in accordance with the WorkCover Code of Practice for the Amenity Tree Industry. 4. Should the work be delayed as consequence of the storm of 21/22 April 2015 and the availability of arborists, the respondent has liberty to restore the matter on 3 days notice. 5. The applicant is to provide all reasonable access for the purpose of quoting and for the safe and efficient carrying out of the works in (2) on at least two working days notice. 6. The application pursuant to s 14B Part 2A is dismissed. _____________________________ Judy Fakes Commissioner of 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. Decision last updated: 24 April 2015