Debate resumed from 25 October 2006.
Mr CHRIS HARTCHER (Gosford) [10.25 a.m.]: The New South Wales Coalition does not oppose the Trees (Disputes Between Neighbours) Bill. Some time ago, in an exclusive to one of the Sunday newspapers, the Attorney General announced the bill with the usual hoo-ha and media spin. It was presented on the basis that an 800-year-old law would be overturned, which would be a significant development in the State of New South Wales. However, it is not as dramatic as the Attorney, in an attempt to put some spin on his position, made out to the media. In its 1998 report entitled "Neighbour and Neighbour Relations", report No. 88, the Law Reform Commission made certain recommendations. The report has been kicking around for eight years, but suddenly it has become so urgent that the bill, which was introduced only a few days ago, has to be rushed through the Parliament to finality. It is made out to be some great change to the legal system brought about by a "progressive" and innovative Attorney General, when it is based on an eight-year-old report.
The Law Reform Commission's report concluded that the existing common law, which is the 800-year-old rule that was talked about with such media fanfare—the law of nuisance and abatement—was not adequate to cover ongoing disputes about trees between neighbours, especially in urban areas. Historically, the common law has provided actions in nuisance when there was a threat to the enjoyment of one's own property. It was a property right. One could take action to restrain a threatened nuisance or seek damages when a nuisance actually occurred. There was also the common law right of abatement, which was a right to cut back overhanging trees and to take emergency measures to protect one's property. Abatement simply means to be able to cut back. Those two remedies are torts, which required action in the appropriate court, which was normally the District Court or the Supreme Court.
The Law Reform Commission determined that the legislation should be regarded essentially as planning legislation because it relates to how people live in urban areas, and that it should limit the application of the common law of nuisance. But the Law Reform Commission also recommended that the Land and Environment Court should be the court to determine disputes rather than the District Court or the Supreme Court. That is not a recommendation I would support, although we will not make an issue of it at this time. Both the District Court and the Supreme Court had jurisdiction over common law torts of nuisance and abatement, the only limit being the financial amounts the court could award. The Supreme Court has unlimited jurisdiction and the District Court has various statutory limits, the present limit being $750,000.
The Law Reform Commission determined that the Land and Environment Court, being a specialist court to deal with neighbourhood and planning matters, should be the appropriate body, even though it is an expensive forum. The Law Reform Commission does not give enough attention to the sheer cost of legal proceedings. Proceedings in the Land and Environment Court are always very expensive and litigants often cannot recover costs. There is power to recover costs, but it is rarely exercised. One of the features of the Land and Environment Court that appealed to the Law Reform Commission was the fact that the Land and Environment Court has a system of commissioners, not only judges, and that these commissioners can make informal visits. They can go out to sites and take evidence on site, and they can provide—at least in the opinion of the Law Reform Commission—a fairly inexpensive and effective procedure to look after disputes of this nature.
A commissioner who has experience in planning and environmental matters would, therefore, come to the dispute with a good understanding of legislation relating to matters such as tree preservation orders, council powers, native vegetation, National Parks and Wildlife, as well as legal qualifications and an understanding of the principles of common law nuisance and abatement. Commissioners of the court are also reinforced from time to time with acting commissioners. That was the rationale the Law Reform Commission expressed in its report, and to an extent the legislation reflects that. The legislation is not without its shortcomings. One of the very obvious shortcomings is that it does not apply to trees on council land. The Act applies to trees on certain land and section 4 (2) says:
This Act does not apply to trees situated on:
(a) any land that is vested in, or managed by, a council.
Some of the biggest concerns that people have are slow responses by councils and getting them to move on matters and look after their own land. Under this legislation there is no right to take action if the council is the owner of the land upon which a problem tree is located. That effectively means that the only remedy against council remains the traditional common law remedies of nuisance or abatement. Councils own a lot of land and they manage a lot of parks and recreational land, and trees usually grow on recreational land. Even where the land is used for sporting purposes, trees are normally grown along the borders. It is of great significance to people who adjoin council-managed or council-owned land that while they may have remedy against their neighbours they do not have remedy against their council. Secondly, section 4 (2) (b) says the Act does not apply to trees situated on any land of the kind prescribed by the regulations.
The Attorney General or the Minister for Planning, whichever Minister is finally given jurisdiction over this legislation, will have the power to simply exempt any land by regulation. There is no explanation given as to why the Minister needs to have that power. If it is simply to resolve disputes that occur in residential areas, why should any land need to be exempted? One is entitled to draw the inference that the Government has simply included that clause so it can exempt its own land.
It is okay for everybody else to run off to the Land and Environment Court, but as far as the Government is concerned one suspects—and as far as councils are concerned, one knows—that the Land and Environment Court will not be the court of jurisdiction with its commissioners and its specialist environmental training and background, as we have been assured by the Minister in his second reading speech. People will have to go to the Supreme Court or the District Court and bring their action in nuisance. In section 5 the Act expressly precludes actions being brought in nuisance as follows:
No action may be brought in nuisance as a result of damage caused by a tree to which this Act applies.
That is significant because nuisance is wider than just damage. Nuisance has always been a tort that enabled one to obtain injunctive relief. One was entitled to get an injunction against a nuisance when there was a real and present danger of the nuisance becoming crystallised. That is not abolished by section 5; it is only abolished to the extent to which one can get damages. Nor is the action of common law abatement, a self-help right granted by the common law, precluded. Both of those actions in tort are still extant. One wonders to what extent people will exercise their remedies and how effective the legislation will be, given that both of the common law torts continue, at least in some form or another, and that action cannot be brought against land that is vested in or managed by councils, or land that is prescribed by regulation—although no regulation has, of course, yet been prescribed. It is also significant that "tree" does not have its usual definition. The definition in the bill is:
tree includes any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations.
The regulations can define anything as a tree as long as it is growing on land. Once again one can only wonder at the definition of "tree" as a woody perennial plant because that definition also catches hedges. Many hedges are woody, of course they are perennial, but they are not normally regarded as trees. The legislation will have a wider implication, especially for people who object to their next-door neighbour's hedges, because where do people normally grow hedges—on boundaries!
The legislation would appear to have come about as a result of representations made by people, especially in the Blue Mountains and in the Southern Highlands, who dislike their next-door neighbours growing hedges which would become, in those areas at least, a new form of what used to be called spike fences, and they want some remedy. I do not know what community consultation has been sought in regard to this legislation; that is not outlined in the Minister's second reading speech. All we know is that the bill embodies recommendations that were made by the Law Reform Commission eight years ago. That demonstrates the snail's pace of the Government when it comes to legislative reform. Mr Gregory Moran, one of my constituents in Matcham, has written to me and made out a very good case. He writes:
I am writing to you in the fond hope that you may be able to lobby for modification of a bill (the Trees (Dispute Between Neighbours) Bill 2006) which is scheduled to be tabled before NSW Parliament in November. I have a problem with a hedge … which can be planted at any time without being subject to height restrictions and which left unchecked can grow to 30-40 metres high. These hedges end up being the equivalent of growing a rapidly rising green wall directly in front of or on the side of houses impinging on views and sunlight and subject to no known planning controls.
As a result of community concern, the Attorney General's department released a Bill entitled the Trees (Dispute Between Neighbours) Bill 2006 in August. Unfortunately this Bill does not cover the case of hedges when they deprive neighbours of views and/or light. I am appealing to you to attempt to modify this Bill to protect persons whose light or views are severely affected by high hedges or trees.
I am not certain that the legislation does not cover hedges because, as I have said, clause 3 (1) provides that the bill applies to "any woody perennial plant, any plant resembling a tree … and any other plant prescribed by the regulations." Be that as it may, Mr Moran makes the following very valid points:
… there are compelling reasons for modifying this Bill:
• There is significant community concern. The lobby group Problem Hedges Australia has over 30 members across NSW from all over Sydney and as far as the Blue Mountains who are adversely affected by high hedges. [Another] lobby group Hedge Wise in the Southern Highlands has 80 concerned and affected residents. A group led by Ray Kavenagh on the Northern beaches also has members affected by hedges.
Mr Moran refers to articles in the Sydney Morning Herald and television programs such as A Current Affair and Today Tonight. Articles have also appeared in local newspapers such as the Mosman Daily, the Southern Highlands News and the Southern Highlands Whisper. One of the articles in the Mosman Daily carries the arresting headline "The shears are the weapon of choice in 'spite wars'". Mr Moran's letter goes on to state:
Wingecarribee Council has so many problems with hedges affecting rural vistas it has sought to submit a draft LEP to the Department of Planning requiring rural landowners to lodge a development application before planting hedges likely to grow more than three metres high. Campbelltown Council is planning an awareness campaign to warn residents about potential problems. Mosman Council would like to see Leighton Greens declared a noxious weed.
That should be of special interest to the Parliamentary Secretary at the table, but he is busy reading a book instead of participating in the debate. Mr Moran also states:
• There is international precedent for imposing limits on high hedges. High hedges have been of such concern in other countries that legislation has been brought in to protect residents … After an estimated 100,000 Britons were locked in hedge wars and one fatality—
I mention in passing that an article in the Sydney Morning Herald was headed "Ugly wars raging in beautiful gardens" and another article in the Age was headed "Hedge disputes led to murder"—
the UK brought in its High Hedges Bill (Part 8 of the Anti-social Behaviour Act 2003)
One could not conceive of more antisocial behaviour than having a high hedge! Mr Moran's letter goes on to state that the criteria used to decide whether a hedge is a nuisance were set out in the legislation passed by the United Kingdom Parliament, and that legislation was followed by legislation passed by the European Union. Mr Moran's letter also states that Belgium, Holland, Switzerland and France have all found it necessary to introduce hedge nuisance legislation. Problems that are being experienced in the Southern Highlands, Mosman, Campbelltown and the Blue Mountains are not without significance in Europe. Report No. 88 of the Law Reform Commission, entitled "Neighbour and Neighbour Relations", recommends that loss of sunlight or views is a basis for action over trees. That report forms the basis for the bill. The Law Reform Commission recommended that the loss of sunlight or views should be a basis upon which action against trees could be taken. The report states:
Trees that cast shade on a neighbouring property can have a major impact on a person's enjoyment of land. If a tree totally blocks out sunlight from the house and yard the house may become damp and mouldy and require more heating. It may make washing harder to dry, make it difficult to grow plants in the yard and block sunlight from a solar powered heater. A person may be denied the chance to "bask in the sun" on his or her property.
But for the fact that the last sentence also relates to problems being experienced in Campbelltown, I would have said that it was very Mosman. The report goes on to state:
Loss of access to a view can affect the enjoyment of property as well as substantially affect the value of a property.
Mr Moran also states:
The Bill in its current form does not take into account the 'damage' caused when hedges or trees block access to sunlight or views.
Mr Moran urges the addition to this bill of a provision that has been modelled on the United Kingdom High Hedges Bill, which is part 8 of the Anti-Social Behaviour Act, to extend the definition of "damage" in the bill to cases where trees affect views or sunlight. Having put my positions on the bill, I am not sure that they reflect the purport of the bill. I do not claim to have undertaken or received a detailed analysis of the bill's provisions, but actions in nuisance that are limited to damage caused by a tree appear to exclude nuisance damages caused by a hedge, and they do not appear to affect the right of abatement. That may affect the validity of concerns expressed in relation to the bill, but I invite the Minister, who I am sure is au fait with these matters, to address those issues in his reply.
I note also that the legislation will apply only to land that is zoned residential, and does not include land that is zoned rural residential, village, township or industrial business. The legislation will not affect rural residential zones, although many rural residential lots are two hectares or one hectare. It is quite commonplace for neighbourhood disputes to be caused by trees in rural residential areas such as Hornsby, which is represented by the excellent member for Hornsby, and Baulkham Hills, which is represented by the excellent member for Baulkham Hills, and Orange, which is represented by the excellent member for Orange.
Mr David Barr: And Manly, which is represented by the excellent member for Manly.
Mr CHRIS HARTCHER: There are some areas where one does not go. I had not intended to trespass on the time of the House for so long, but the matters I have referred to should be drawn to the attention of the House. I ask the Minister to address in his reply the issues I have mentioned. If they are not addressed in this House, certainly they will have to be addressed by the Government in the Legislative Council. Having made those remarks, I indicate that the Coalition does not oppose the bill.
Mr WAYNE MERTON (Baulkham Hills) [10.46 a.m.]: The legislation fascinates me. I understand the reasons for introducing legislation to address problems between neighbours concerning trees. When I was a practising lawyer many people consulted me about problems they were experiencing as a result of a neighbour's tree and their concern about ramifications, especially damage, should the tree fall over. I do not intend to traverse all the excellent points made by the honourable member who preceded me in this debate, the shadow Attorney General and shadow Minister for Planning, who will become the honourable member for Terrigal after the next State election.
However, under clause 3 (1), the definition of tree is particularly wide and includes "any woody perennial plant, any plant resembling a tree in form and size, and any other plant prescribed by the regulations". Clearly, the provision is designed to cover hedges and plants that are deemed by the bill to be trees, but the bill does not apply to land that is zoned other than residential and will not apply to rural residential land, a prime zoning in which tree problems could arise. Land that is zoned village, township, industrial or business under an environmental planning instrument is not covered by the legislation. Clause 4 (3) states:
For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land.
I predict that one of the major difficulties associated with the enforcement of the bill will be the provision that a tree has to be situated "wholly or principally on the land". I draw to the attention of the House the very commonplace incidence of trees being planted plumb in the middle of a boundary between two properties. My view is that this legislation does not cover trees that are situated on the boundary of two properties, but I stand to be corrected. I ask the Minister to take advice from his departmental officers and to address that issue in his reply. As the honourable member for Gosford pointed out, clause 5 states:
No action may be brought in nuisance as a result of damage caused by a tree to which this act applies.
Everyone knows that trees can cause enormous problems, but no difficult and complicated question of law is associated with determining liability in actions for damage caused by trees. There are legal remedies for nuisance and common law negligence and the amounts involved in torts concerning trees are usually not large. One exception to that of which I am aware is a tree in Baulkham Hills that caused approximately $60,000 worth of damage when it fell onto a neighbouring house. When the matter reached the courts, the defendant's insurer denied liability, claiming that no negligence was involved on the basis that the tree had been struck by lightning and had split. The legislation will not address incidents of that type.
If the Government is serious about dealing with disputes between neighbours relating to trees, the bill should address negligence, duty of care, and the responsibility of neighbours in relation to trees. If the Government is serious about helping ordinary people rather than lining the pockets of lawyers—as a former lawyer, of course I am not being critical of lawyers—the legislation should give the Local Court jurisdiction to deal with cases relating to trees. It is blatantly obvious that I should ask the question: Why must proceedings be brought in the Land and Environment Court? Quite often a lot of issues are fairly simple, issues that magistrates would be well able and competent to adjudicate on. The obvious difference in the cost structure is such that in many cases people will not utilise the provisions of the bill because of the costs involved and because they do not want to be involved in proceedings in the Land and Environment Court.
The bill provides that before making an order the court must be satisfied that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated and, if the agreement to give notice has not been waived, the applicant has given notice of the application in accordance with clause 8 of the bill, which deals with the notice of application for an order to be given to owners of affected land. An applicant for such order must give at least 21 days' notice of the lodging of the application and the terms of any order sought to the owner of the land on which the tree is situated, and to any relevant authority that would, in accordance with proposed section 13, be entitled to appear in proceedings in relation to the tree, and to any other person whom the applicant has reason to believe will be affected by the order.
I repeat the point I raised earlier: What do we do with a tree that is located precisely, as determined by survey, on the common boundary of two properties? Whose responsibility is that? The bill does not cover that scenario in any way. I do not know what standard of proof an applicant who wishes to obtain an order—and this seems to be a condition precedent—would be reasonably required to demonstrate under clause 10 to reach agreement with the owner of the land on which the tree is situated. I assume the standard would be on the balance of probabilities, because it is very difficult if the tree is on both blocks of land. The bill had so much potential to solve so many problems involving trees on neighbouring lands. The problem will not simply go away. Clause 10 states:
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or
(b) is likely to cause injury to any person.
That is fair enough for obtaining a restraint order. However, the bill should have included situations where damage has occurred, because it would have given the property owners an opportunity to seek compensation after the event. The bill merely gives owners some rights before the event, as admirable as those rights may be, and no-one can dispute that that situation should exist. The bill has a number of problems that I will not canvass again, as I have raised a number, and the honourable member for Gosford also raised a number. The Government should reconsider the provisions of the bill, because it could do so much more to help a lot of people.
As the Deputy Leader of the Opposition said last night, it seems that a lot of legislation is being rushed through the House in the last weeks of the current sittings simply so the Government can say it has done so. I have no doubt that the Coalition will have to address many issues when the Coalition Government is elected in March 2007. It will have to fix this bill and many others that this tired, worn, lethargic, out-of-energy, directionless Government has sought to inflict on the State in its last dying days.
Mr Chris Hartcher: Churchill!
Mr WAYNE MERTON: The honourable member for Gosford will be right at the front. He will introduce amendments so that the people of New South Wales will realise what might have been, what could have happened, if the Government had only cared a little bit more about them, rather than being overcome by the feeling of almost despair and hopelessness of its situation. From 24 March 2007 the Coalition will offer remedies to these problems, and many others, that the Government has inflicted upon the people of New South Wales.
Mr RUSSELL TURNER (Orange) [11.00 a.m.]: Although the Coalition does not oppose the Trees (Disputes Between Neighbours) Bill it wishes to raise several concerns about it. The bill contains many good provisions, but several issues still need to be resolved. From what I can see many of the questions that have been asked have not yet been answered. I refer to the Legislation Review Digest, a valuable source of information in this House, which states:
The object this Bill is to enable the bringing of proceedings in the Land and Environment Court ... to resolve disputes between neighbours about trees in urban areas. In particular, the bill enables an owner of land to apply to the Court for an order to remedy, restrain or prevent damage to the owner's property, or to prevent injury as a consequence of a tree situated on adjoining land.
The Land and Environment Court will sit in cities such as Orange and the commissioner will hear particular cases, but I believe that many people would find that a bit daunting as opposed to going to the District Court to have their matters settled. I hope that people are not prevented from going to the Land and Environment Court because costs are too prohibitive. The Legislation Review Digest also states:
The Court may not make such orders unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the owner.
That matter is dealt with in proposed section 10. How will the court identify a reasonable effort? What would a lawyer defending the claim accept as a reasonable effort? I am sure that that provision will prove somewhat daunting for a person in the Orange electorate with whom I dealt a few months ago. For some time my constituent has been concerned about a tree on a neighbour's property that was incorrectly pruned many years ago. The eucalypt, which was cut off a few metres from the ground, had branched out, and the bigger the tree got the more dangerous its branches became. One large branch snapped off the tree, crashed over the fence and destroyed a small work shed on my constituent's property.
My constituent received appropriate compensation, but the tree branch that fell weakened the remaining four or five branches. My constituent went to council and was told that, whilst council noted his concerns, because the tree was located on his neighbour's property it could do very little about it. My constituent, who was concerned about living in his home, decided to reside in a shed at the back of his property. When I visited his property I observed that if another tree branch were to fall it would crash into the shed in which he was living. However, legally there was nothing that council could do other than to ask his neighbour to remove the tree. The neighbour said that whilst he acknowledged the tree was a little large he did not have the finances to remove the tree as it was estimated to cost between $2,000 and $3,000. I hope that my constituent has the financial resources to go to the Land and Environment Court to obtain an order in his favour to ensure that his neighbour removes that dangerous tree.
Last week a ratepayer in Orange who came to see me maintained that a tree on the council verge was cracking his footpath and blocking the drains from his house to the street. Council said to him, "If you want to do anything about it go and see your solicitor and we will see you in court," which I do not believe to be a very conciliatory attitude. This man, who is a pensioner and who has limited means, is not confident about going through the court system to try to get council to correct this problem. I note also that the Legislation Review Digest states:
It applies only in relation to trees situated on land within residential, business and certain other urban zones under environmental planning instruments. It does not apply to trees situated on land vested in or managed by a local council.
So this bill does not cover the cases to which I have just referred. As the honourable member for Baulkham Hills said, after 2007, when the Opposition is in government, it will amend the legislation. The bill does not deal with problems that might arise on two-hectare or three-hectare rural blocks. Two neighbours might try to maximise a view, whether it be an ocean view or a view of a scenic landscape on the outskirts of Orange. Both property owners might have built homes reasonably close to one another on the top of a ridge to maximise a view for which they bought their blocks. They might then plant trees down the border of their properties to protect their privacy, but they might not always plant the right trees.
So far as I am aware, the bill will not resolve any problems arising on blocks in rural zones. I ask the Government to address that issue. I refer as an example to an orchardist who used the dam on his property to irrigate his orchard. State Forests bought land next door to him and planted a couple of hundred hectares of radiata pines, which soaked up so much moisture from the area that the orchardist's dam never filled because there is not enough run-off. People plant trees to prevent erosion and salinity, but in this instance the radiata pines that were planted alongside the orchard affected the orchardist's ability to water his trees, something that he and his family had done for years.
Obviously the provisions in the bill will not resolve every problem. As I said earlier, I hope that people with limited financial means have access to the Land and Environment Court to settle their disputes quickly and at little cost. I hope that the Land and Environment Court treats each case on its on merits and does not impede anyone's ability to remedy a dispute. Many disputes occur because incorrect trees have been planted on council verges. People plant wrong trees in their backyards because they have received wrong advice or a tree is given to them as a gift when they build or move into a house. People plant trees that should never be planted and they then become a problem. As I said earlier, the bill will resolve only some of those issues. I hope that the Government takes the issues I have referred to into account. The Opposition does not oppose the bill, but I do not believe it goes far enough.
Mrs JUDY HOPWOOD (Hornsby) [11.09 a.m.]: The Trees (Disputes between Neighbours) Bill provides for proceedings involving the resolution of disputes between neighbours concerning trees to be brought in the Land and Environment Court. The overview of the bill states that the bill will enable the bringing of proceedings in the Land and Environment Court to resolve disputes between neighbours about trees in urban areas. I emphasise that point. The bill enables a landowner to apply to the court for an order to remedy, restrain or prevent damage to the landowner's property or to prevent injury as a consequence of a tree situated on adjoining land. The Coalition does not oppose the bill. In fact, we see it as a step forward, albeit a small step, in resolving many disputes that are brought before local councils and to the offices of State members of Parliament when discussions between parties go off the rails.
The bill applies to land that is zoned residential but not rural residential. It applies to villages, townships, industrial and business, land but it does not apply to trees situated on land that is under council control. That is a major concern, as trees located on council land are the cause of many disputes. The fact that the bill does not address the issue of problem trees located on rural-residential land is a particular concern in the new electorate of Hornsby. Numerous residents have raised with me concerns about the many trees that are planted on tracts of rural land. I received a letter from David Harley dated 6 September this year in response to the exposure draft of the bill. He writes:
I have perused this Bill and whilst applauding the advances it does make wish to register my disappointment at its limited scope in an area crying out for reform.
My concern is the prevailing simplistic populist attitude that in each and every situation the tree is sacrosanct. Scant attention is given by Government to the issue of malicious or irresponsible new plantings by neighbours after a property is purchased so that solar access and views of urban residents are needlessly destroyed through poor choices of plant material in inappropriate places. In a country with a population of around three people per square kilometre there is no excuse for trees in urban situations blocking the winter sunlight and views of other ratepayers. Often the planter creates inconvenience and loss of property value for others whilst suffering none himself.
There is room enough in non-urban areas for planting of any number of trees. There is sufficient choice of plant material available for urban situations that the amenity of others need not be violated. In many situations shrubs and small trees of limited height will serve this function. There is any number of such plants to satisfy all tastes.
I understand that in the A.C.T. there is legislation to enable the ordering of the destruction of a tree where it deprives a ratepayer of solar access between the hours of 9 a.m. and 3 p.m. in winter. With increasing emphasis on solar efficient housing and on reducing heating costs, this appears an excellent concept, worthy of general adoption.
There can be no excuse in suburbia for anybody to plant tall trees on the north side of any property where they will destroy the winter sunlight of neighbours.
There needs to be far better education of the public as to the appropriateness of and location of plant material placed in suburbia.
I trust in due course these types of issues will receive the attention of Government. I write as one who loves trees, but in their appropriate, non-invasive places.
Only last weekend residents in the northern part of my electorate raised with me the issue of "spite trees". It is hard to believe, but some people plant trees to "pay back" a neighbour with whom they are in dispute, even though the initial problem did not even involve trees. We do not condone the planting of "spite trees". Although the Coalition does not oppose the bill, we have various concerns about it. We believe the bill should apply also to trees situated on rural-residential land and on council land, as myriad disputes can emanate from those areas.
Mr DAVID BARR (Manly) [11.15 a.m.]: The Trees (Disputes between Neighbours) Bill results from a New South Wales Law Reform Commission report that found that the common law of nuisance that governs disputes between private parties about trees does not provide an adequate dispute resolution process for people in urban areas. The bill is intended to provide a simple, inexpensive and accessible process for resolving disputes between neighbours regarding trees. The Land and Environment Court will be able to make orders in respect of trees on adjoining properties that are causing damage or that pose a danger.
I am concerned about what is not in the bill. My main concern, and that of many of my constituents, is that the bill does not address recommendation No. 7 of the Law Reform Commission report, which is that a person whose enjoyment of property has been severely affected by a neighbour's blocking out a view should be able to apply to the Local Court under the proposed new procedure. I understand that for the moment the Government has put that recommendation in the too-hard basket. If people in the Manly local government area want to build even a modest structure, such as a small deck, that is 1.5 metres above ground level, they must submit a development application to the council. However, people can plant any old trees they feel like, irrespective of the height to which they will grow and irrespective of whether they will affect adversely the amenity of neighbours. No regulations govern the planting of trees. That is a huge anomaly.
If a tree is not a structure, I do not know what it is because trees can be massive. I have received considerable correspondence from constituents about this issue. The northern beaches district is characterised by hilly topography and residents have views over the district and to the ocean, and solar access. Water views are a priority in the development applications submitted to Manly and Warringah councils. That issue causes more disputes than any other. Understandably, people like to maintain their views and the councils have view-sharing policies regarding dwellings that are built on adjoining properties that can cause view loss. But those policies do not apply to trees. Trees can block people's views, and there is nothing they can do about it. The bill does not address that serious issue. I contemplated moving an amendment to the bill in Committee, but the matter is sufficiently complex—I particularly question the reference of disputes to the Land and Environment Court—as to require entirely new legislation.
I foreshadow that in the next parliamentary session I will introduce a bill that addresses the loss of views caused by trees. I believe it is more appropriate to deal with such disputes in a more informal tribunal than in a court. This is a huge issue that must be resolved. I have received numerous letters from my constituents about this matter. Coral Johnson of Balgowlah Heights wrote to me, pointing out that last year one of her northern neighbours planted 24 Leyland cypresses, one metre apart, next to the fence line. The trees are, therefore, four metres from Ms Johnson's house, with the possibility that, without pruning, the trees, which are already three metres high and growing very fast, will soon block the sunlight to her family room and courtyard and overhang her driveway. Ms Johnson wrote:
No discussion has occurred about the trees and we are awaiting the outcome of the proposed sale of this house to review to whom we discuss the hedge, now that we are aware of its potential height of 40 metres.
I also received an email from Mr Ray Cavenaugh from North Curl Curl, who states:
This bill bears no relation to the problems being caused by trees in residential areas, and ignores the sensible recommendations of the Law Reform Commission in 1998. It can only be seen as a piece of spite legislation against people who are presumed to be rich. It only deals with safety (and poorly at that), the only matter that the Law Reform Commission considered that can already by dealt with by Local Government. It provides no services for people who are suffering from the random acts of people who are now encouraged to believe that they can plant any type or number of trees in their yard and the only consideration they need to have is whether at some stage a branch MIGHT be about to fall, or a root MIGHT be causing sewage to flow through someone's house. And nothing can be done until it is on the point of occurring! What nonsense!
Mr Cavenaugh sent the following case studies about views:
1. When this Beacon Hill house was purchased 25 years ago the owners had an extensive view of the ocean from the rear of their house. Some years ago the Council sent them a second storey development plan for a house two doors down. They placed no objections because they still had plenty of view left. Since then the neighbours have grown two huge pines and a poplar in their back yard. There is only the faintest glimpse of ocean left.
2. This Bilgola Heights house had a pleasant view down the valley. The neighbour has planted bamboo right along his back fence. It is a variety that grows very rapidly, and very tall. The view is disappearing.
3. This North Curl Curl resident moved in 36 years ago and for many years enjoyed an extensive view across the valley and the sea beyond. Some years ago a neighbour further down the slope took to planting huge pines and eucalypts in his back and front yards. She still has a view but it has been greatly reduced. She can't work out why the neighbour either wishes to plant such trees or is allowed to.
4. This Allambie Heights resident lives on the high side of the road, and once had extensive distant ocean views. The neighbour across the street has grown conifers of such a size and density that her view has been seriously restricted. It is no surprise that the conifers are conveniently in the front of the neighbour's house where their views are not affected.
There is a long list of many other people with common problems that this bill does not address and that neither State governments nor councils have dealt with adequately over the years. It is absurd that people are allowed, unaccountably and without permission, in effect to erect structures in the form of large tree species. The issue is inappropriate plantings, either through naivety, ignorance or spite. I have received stories of people deliberately planting trees to block out their neighbour's view as a retribution or payback for some dispute. It is unfortunate but it does happen and people can get away with it. It affects the amenity of a home that no longer has a view and it affects the value of a dwelling.
It is wonderful to have a water view and the beauty of Sydney is that because of its topography and vast water areas many people enjoy that benefit. It is totally unacceptable for neighbours to be allowed to plant willy-nilly whatever trees they want that block other people's water views as it severely impacts on the rights of others. The legislation does not address that issue in any way, shape or form. In the next session of Parliament I will put forward a private member's bill to address this complex issue. I believe it would be more appropriate to have a tribunal deal with these matters informally rather than a court. Councils also need to have powers to determine much more strictly the suitability of vegetation, its height and the impact it will have on other people. Landscaping plans are lodged with development applications and councils stipulate certain trees that must be planted, but conditions often are not adhered to. Breach of application consent conditions causes great difficulties for all concerned when a matter has to be addressed down the track. Often, the endless battles that arise between neighbours also involve local councils. That very unsatisfactory state of affairs is not addressed by this bill and we need legislation that does address it.
Mr ALEX McTAGGART (Pittwater) [11.25 a.m.]: I support the Trees (Disputes Between Neighbours) Bill and I am at odds with most of the previous speakers. I am usually the last speaker in this Chamber on any matter—I do not know why. I do not need to regurgitate the ins and outs of debate on this bill. I acknowledge that the Minister for Planning is in the Chamber. Whilst this bill looks at disputes relating to damage being caused by the type and location of trees, it fails to address the loss of light and views caused by those trees. I will first address the intent of the bill which is to provide a mechanism for resolution of disputes between neighbours. I note that council and crown lands are exempt and that resolution of disputes is by action in the Land and Environment Court.
I note that proceedings require, first, an attempt at mediation via the regulations. I encourage that methodology and it should be strengthened as much as possible. Actions in the Land and Environment Court are very expensive, and are becoming more expensive each day as expectations rise higher and higher. Eventually, ordinary citizens will not be able to afford to go to the Land and Environment Court. I would like a regulatory mechanism, perhaps in the form of a tribunal, that helps people avoid court action as much as possible. I note that a council will not be the initiator of an action on behalf of a resident. I do not know whether the bill sets out how a matter should proceed to a court hearing. I also note that the local council or the Heritage Council may appear at a court hearing if the case involves a tree of significance. Who will pay council costs? Can council be enjoined if it takes a particular position? That issue has not been established in the legislation.
The bill fails to address the two most vexing and significant issues in Pittwater, which I am sure have been raised by all speakers: loss of light and loss of views. Those two most important issues affect the very essence of Pittwater. Pittwater's environmental mantra is "the built form shall not dominate" or "houses nestling amongst the trees". Trees are an important part of our environment, particularly canopy trees. The planting of canopy trees is a standard condition of consent by Pittwater Council for development applications for new construction, for alterations and additions, and for tree removal under the tree preservation Act. Pittwater Council requires in each development application for alterations or new buildings that when a tree is removed it is to be replaced with three new canopy trees. Council is endeavouring to recover the tree canopy in Pittwater.
One problem is that when a tree has been planted as a condition of consent for a development application, that tree exists for the life of the development. If a court required removal of a tree because of damage to another property, how would that affect the original condition of consent. I reiterate that trees are an integral part of our community, and to remove trees because of view loss is not acceptable. I know the concerns that those in adjoining properties have about view loss, but views can be filtered through canopy trees. I think the problem is with a particular species such as a plant mentioned by the honourable member for Manly, Cupressus leylandii, which blocks out views and is impenetrable by light. This plant is unacceptable and should be placed on the noxious weeds list. I note that at the Local Government Association conference last month the Cupressus species were included in a motion as plants to be banned.
The main problem I see is trying to remove a tree several streets away that blocks a particular view. I do not believe that is reasonable. With respect to loss of light, I think it is a reasonable position that light should be regarded as a must, not a luxury, and I encourage the Minister for Planning to bring an action in the Land and Environment Court, on behalf of the community, to have a judgment handed down on view sharing, such as that in the case of Tenacity Consulting v Warringah. That is now a well-used guide on what the courts regard as reasonable.
I would like to acknowledge a number of residents who have written to me and made submissions to the exposure draft in August 2006: Mrs Kirk from Elanora, Mr Cavenaugh from North Curl Curl, and Mrs Shomberg from Newport, representing Problem Hedges Australia. I appreciate the hard work that they have done. I am unable to support their position on views, but I sympathise with them on the issue of light, and again would encourage the Government to test that issue in the courts so that we will have a reasonable position that people can measure their arguments against. I would reiterate that Pittwater council provides a list of suitable planting trees to fit into our environment, and I would encourage other councils to do the same.
Mrs JILLIAN SKINNER (North Shore) [11.31 a.m.]: I am conscious that the issue raised with me by my constituents is not strictly covered by the provisions of the Trees (Disputes Between Neighbours) Bill, although the bill goes some way towards allowing neighbours to resolve their differences in relation to tree plantings. It seems to me that in electorates like mine, where views are a prime consideration of many residents, tree plantings can lead to a lot of disputes. Involving the Environment Protection Authority in decision making is a good idea, but the bill does not go far enough. I have had correspondence from constituents who have asked me to lobby for modification of the bill to cover planting of hedges that restrict views.
If ever I needed convincing that this is a major problem, it was brought home in photographs taken from a window on the ground floor of the house of a resident in 2002 and 2006. In the 2002 photograph is a view overlooking Mosman Bay and extending to the other side of the bay. All I can see in the photograph of the view from the same window in 2006 is a huge bank of pine trees. I think there is something to be said for providing neighbours with a mechanism to deal with these kinds of disputes. No-one is saying we should chop down all trees. Nobody is saying we should restrict the planting of trees—least of all me, keen gardener that I am. But I think there is a case for appropriate plantings and a case for neighbours to have a mechanism that they can use to deal with these kinds of problems. I want to read onto the record part of a letter from constituent Julie Giannesini of Beauty Point Road, Mosman:
I have a problem with a hedge (defined as two or more adjacent evergreens which together form a vegetative barrier and often consisting of Leighton Greens which are a very fast growing cypress tree) which can be planted at any time without being subject to height restrictions and which left unchecked can grow to 30-40 metres high. These hedges end up being the equivalent of growing a rapidly rising green wall directly in front of or on the side of houses impinging on views and sunlight and subject to no known planning controls.
Unfortunately this bill does not cover the case of hedges when they deprive neighbours of views and/or light. I am appealing to you to attempt to modify this bill to protect persons whose light or views are severely affected by high hedges or trees.
I do not propose to do that. These are the dying days of the Labor Government. I assure my constituent and the many others affected by very inconsiderate plantings, not only by neighbours but by councils, that this legislation will be revisited after the Coalition is returned to government in March next year. The Parliamentary Secretary is demonstrating the playing of a violin. I am very sympathetic towards my constituent. I have lost a view from my house. We can live with that because I am a member of Parliament. But these people have invested millions of dollars in their properties, are very house proud, and have every right to expect that they will be able to maintain the sunlight and views that they paid millions of dollars for. The bill should have gone further. I am sorry that it does not go further; it will when we regain government.
Mr BRAD HAZZARD (Wakehurst) [11.36 a.m.]: As the shadow Minister indicated, the Opposition will not oppose the Trees (Disputes Between Neighbours) Bill. But I wish to express, on behalf of residents of Wakehurst and the northern beaches, concern that the bill does not address a number of issues that often affect my constituents. When I first entered Parliament I held a series of public meetings in the electorate; I continue to hold them. But the very first public meeting must have been attended by more than 100 people and probably 30 or 40 per cent of them had had problems with trees and neighbours' responses to those problems.
Their concerns related particularly to the interface of the law between what they were required to do vis-à-vis their neighbours, what they were required to do under the Local Government Act, and the powers that councils could exercise in relation to the preservation of trees. Trees are part and parcel of the life of residents on the northern beaches. Trees and other vegetation are found throughout the entirety of the amazing northern beaches area. Residential blocks often have trees on them, but some of those residential blocks are next to council reserves and parks, and that creates problems not only for residential neighbours but also for those whose residences abut a council property or a national park.
A number of members have spoken about the issue that often arises of the lack of a right to light and the lack of a right to a view. The bill makes it almost impossible for most people to have their problems resolved. I say that because anybody who has ever dealt with the Land and Environment Court would know that, despite its strengths, such court proceedings can be quite expensive, given the cost of briefing solicitors and barristers to appear before the court and to present material.
I note that the bill provides for mediation before the commencement of proceedings in the Land and Environment Court, but we need a far more cost-effective and timely system rather than having to wait for matters to be dealt with in that court. We need a system that will enable matters to be dealt with quickly, cheaply and fairly. We need a system that will promote goodwill between neighbours because this problem can create great ill will between neighbours, and great angst between residents and their local councils. Mediation is a good concept, but the bill is half baked. It does not go anywhere near far enough in providing an expedient and simple method to deal with problems that may arise between neighbours.
The honourable member for Pittwater suggested the creation of another tribunal. I do not agree with that at all. Creating more bureaucracy is totally unnecessary. However, other methods could be considered. For example, the registrar of the Local Court could be empowered to deal with these types of matters. Some years ago, when there was a huge backlog of civil actions in the Local Court, the former Coalition Government enacted the Arbitration (Civil Actions) Act, which empowered qualified solicitors to act as court arbitrators in disputes between parties. In the early years of that system I was President of the Northern Beaches Solicitors Association.
Mr Chris Hartcher: They were great days, weren't they?
Mr BRAD HAZZARD: They were great days. They were very good days, but that was before I had the pleasure of the company of the honourable member for Gosford. A number of solicitors on the northern beaches were appointed through the Manly Local Court and, together with others, I performed the duties of a court arbitrator. The parties came before us, we heard the disputes and the appeal rate was extremely small. Most people were able to access justice expediently and fairly cheaply, and we were able to remove the massive backlog of civil actions from the court. I fail to understand why the State Labor Government could not have considered a similar system. There is absolutely no logic in demanding that parties to a dispute go to the Land and Environment Court with all its consequent expense, as opposed to the Local Court, where the registrar could refer them to a solicitor who has the power to deal with the matter. In 99 per cent of cases that would result in a positive outcome. There might be rights of appeal to a judicial forum, such as the Local Court, but I fail to understand why people have to go to the expense of going to the Land and Environment Court.
The northern beaches is a great place to live, but because there are so many trees that often restrict access to water views, as the honourable member for Manly said earlier, we tend to experience what might be loosely termed tree terrorism. The Manly Daily, our wonderful newspaper of record on the northern beaches, regularly features articles about trees being poisoned. Often the suspicion falls on neighbours who are not far away from the trees and who, if it were not for the trees, would be in a line of sight of a view. However, there is a long way between suspicion and proof. The fact that the trees have been growing for years and that neighbours have been watching the trees with increasing frustration tends to promote tree terrorism. We need a system that promotes goodwill between neighbours, so that as soon as a tree is planted and neighbours know that it is, say, a eucalyptus that will grow to 30 or 40 metres and completely obstruct the view, neighbours can approach each other to discuss the issue before aggravation and anger smoulder for years. If they cannot do that, they can go to mediation. If they cannot do that they can go to an arbitrator appointed through the Local Court rather than take the expensive option of going to the Land and Environment Court.
Councils should not have been excluded from the bill. It is an atrocious cop-out by the Labor Government. Councils have the power to determine what trees remain on properties, but we must also have protection. We cannot allow the trees to be removed absolutely, and people cannot be allowed to remove trees capriciously. Trees make Sydney a wonderful place to live and the northern beaches the best of places to live. To allow councils to override decisions and to deny neighbours the right to appeal against council decisions is inappropriate. The bill provided the Labor Government with the opportunity to do something. After 12 years one would think that the Labor Government could have introduced a bill that would deal with residents' frustrations with councils. Over the years I have had to deal with a number of these types of cases. One involves a resident of Frenchs Forest who, some years ago, sought to develop her property. Warringah Council imposed a requirement that a tree not be removed from the property. I will not mention the name of the person but refer to her as "a Warringah resident". I refer to a letter I wrote to the administrator of Warringah Council on 15 August 2006:
I enclose an original letter from a Warringah resident seeking damages from Warringah Council.
The Warringah resident advises me that she sought permission from Council to remove a tree in 1992 and again in 1995.
It would appear that on both occasions Council refused to give such permission, even though the Warringah resident had received written advice in 1992 from Grow-How that the tree should be removed.
The Warringah resident has now incurred substantial costs ($5,980) in relation to damages to her patio as a result of roots from the said tree and additional costs to remove the tree also arise from the current damage caused.
You will note that part of the additional expense related to having to remove the tree across the existing house which would not have been the situation if the tree had been removed prior to the house being constructed as was her intention.
As the Warringah resident made available expert advice to Council in 1992 which confirmed the need for the tree to be removed she is of the view that she has a claim for damages arising out of the alleged negligence of the Council.
I ask that consideration be given for the expenses incurred.
Your urgent advice would be appreciated.
The letter highlights the fact that councils can be right at the centre of ridiculous decisions. This person has suffered long-term frustration and damages because of council's decision to force her to retain a tree that, clearly, was far too close to the proposed construction. Another example involves a child-care centre operator. A tree was dropping small berries into the area of the long day care centre where the children were playing. The Department of Community Services requires, and parents expect, child care centre operators to provide a safe environment for children, which means the removal of any object that little children could put in their mouths and choke on.
Mr John Turner: If it had been a toy, it would have been banned.
Mr BRAD HAZZARD: Yes. Because the council was involved and the object was something that was dropping from a tree, the council adopted what I consider to be a hopelessly impractical position. The council decided that the tree had to stay and could not be trimmed. The matter was complicated by the fact that the tree was on a neighbouring property. Under its tree preservation order the council demanded that the tree remain. That placed the operator of the long day care centre in the ridiculous position of having to send someone every day to pick up the berries and having to be constantly vigilant to ensure that the berries had been removed. The bill represents a golden opportunity that has been lost. Tree terrorism will continue and councils will continue to make decisions that are sometimes appropriate and sometimes just plain dumb. The bill should not have been plonked into the New South Wales Parliament in the dying days of the Labor Government. Even after 12 years, the Labor Government has failed. Doubtless the Coalition will have to address the whole issue and resolve these problems after the next State election.
Mr JOHN TURNER (Myall Lakes) [11.50 a.m.]: I endorse the remarks of the honourable member for Wakehurst relating to the exclusion from the bill of councils and the Crown. As the shadow Minister for Local Government, my opinion is that this legislation should include councils because in numerous court cases councils have been held to be liable. The honourable member for Wakehurst referred to examples in his electorate, and I recall another case involving the Eurobodalla Shire Council. A man approached the council five or six times to have a tree removed. The man was told that the tree could not be removed. Subsequently the tree fell and killed the man who had made the request. In the subsequent court case, the plaintiff's family successfully sued the council.
The debate on trees has to be brought back to a sensible position. I concur with the remarks of Michael Duffy in an article published in the Sydney Morning Herald last Saturday. I would never condone the deliberate destruction of trees. I recall as a boy being with my father, who used to keep trees in the boot of his car. He and I went around Cessnock on Sunday mornings planting trees. I was happy doing so and I would be happy to continue doing so, but the issues involved in the debate on trees must be kept in balance. Seeing the honourable member for Newcastle at the table reminds me of what has been occurring in Newcastle. In the Civic Precinct, a number of new and beautiful developments have been constructed. They provide a beautiful lifestyle and amenity for people who purchase properties there.
The council deliberately planted trees along the foreshore that will reach a height equal to two or three storeys, thereby immediately destroying the amenity of some of the properties. As Mr Duffy points out in an example he cited, property has been devalued by $100,000 by the inappropriate planting of trees. I am not against the planting of trees, but trees should be planted in sympathy with existing developments. The council claims that the trees were planted to provide shade for pedestrians, but a tree approximately eight or ten feet high can provide just as much shade as a tree approximately 30 or 40 feet high, and a tree of that height would obscure the view of the owners of existing properties. Enquiries I have undertaken indicate to me that there has been an element of malice in the manner in which the trees have been planted.
Before I deal with my own electorate, I remind the House that I live at Burgess Beach. The problems I am about to discuss do not affect my property and I cannot imagine that they will do so in the foreseeable future. A 1974 photograph of the southern end of Burgess Beach shows a windswept bluff covered by grass. There are plenty of other photographs that depict the same scene. Throughout the development of the area, it has been alleged that the council directed the road network's drainage at the southern end of Burgess Beach across to the escarpment. Subsequently trees on the bluff have reached a height of approximately 30. 40 or 50 feet and they have grown up in front of houses that were there before the drainage was undertaken. Householders in that area previously enjoyed a sea view. When approached the council indicated that under no circumstances would it restore to them the amenity of their properties, even though their amenity had been artificially altered by the drainage of nutrients from the road network and channelling them onto the headland, thereby stimulating the growth of the trees.
A sense of balance should be restored to the debate on trees. Everyone acknowledges that we have to have trees and beautiful parklands, but people have to live in harmony. It is ironic that developments must comply with requirements for the provision of shade and must not contravene the amenity of existing properties by, for example, destroying views, but tree planting by councils is not subject to the same planning rigours that councils apply in considering development applications. There is an inherent contradiction in the function of councils. Although the bill does not provide for a resolution of these conflicts, the matters I have mentioned deserve serious consideration. Clearly this legislation should include councils.
In conclusion, I note in the overview that the bill will enable the owner of land to apply to the Land and Environment Court for an order to remedy, restrain or prevent damage to the owner's property, or to prevent injury as a consequence of a tree that is situated on adjoining land. There are innumerable examples of adjoining land being owned by councils, yet the bill does not include councils. I also point out that significantly the bill is silent in relation to amenity.
Ms CLOVER MOORE (Bligh) [11.55 a.m.]: The Trees (Disputes Between Neighbours) Bill provides an avenue for neighbours to settle disputes over a tree on an adjoining property by allowing the Land and Environment Court to make orders to remedy, restrain or prevent damage to property or injury to persons caused by trees. I take this opportunity to briefly point out how important trees are and the important contribution they make to amenity and environment. As everyone knows, trees are of great environmental value. They inhale greenhouse gases from the atmosphere and exhale life-giving oxygen. They block air and noise pollution from city streets and provide privacy. They also add value to homes and provide vital habitats for birdlife.
People have an emotional attachment to trees and feel a sense of loss after the removal of a tree they have grown up with. It is not surprising that tree owners are reluctant to remove or lop trees, and that is one of the most emotional issues that I regularly deal with at the Council of the City of Sydney. The Council of the City of Sydney is very proud of having planted 1,900 trees since April. Those trees are highly appreciated by people who live and work in the Sydney area and who share ongoing concern about the massacring of trees by electricity authorities. There is a definite need for electricity supply cables to be laid underground or for bundling of cables when underground cabling is not possible.
Honourable members who have spoken in this debate have referred to an article by Michael Duffy in last Saturday's newspaper. The article focuses on an issue in Glebe. On many occasions, and particularly on this occasion, Michael Duffy is quite barking mad. In an era of global warming it is quite extraordinary that he has repeated the stance that has contributed to the removal of two-thirds of Australia's tree coverage over the past 200 years. While on the one hand he says that angophoras block views, on the other hand he says that angophoras do not provide shade. I suggest that he take a trip to the Central Coast to note the stunning angophoras that are currently flowering. I was pleased to note that on the day after that his article was published, a resident from Paddington and a resident from Leichhardt responded by mocking the stupidity of the article. However, I am not surprised by the supporters of the article in this House; they are members who for many years have opposed forestry protection legislation.
I support the provision in the bill of a much-needed path for neighbours who are unable to resolve disputes among themselves. However, I believe that it would be better if the mediation process could be undertaken before issues need to be determined by a court. The bill should provide for that mediation process beforehand, and the Land and Environment Court should be a last resort where mediation fails. I am concerned also that the bill may discourage people from planting trees. Knowing that potential disputes with neighbours about overhanging branches or falling leaves could result in a court case, people may not be willing to plant as many trees. With so many benefits that trees offer—and we are aware of that now, given the whole global warming issue—I would welcome new measures from the Government to encourage tree planting to complement the bill.
The potential court costs to parties could be quite high, particularly with the need to engage experts to provide worthwhile evidence in court, especially where the dispute involves complex matters such as potential damage. Some of the reservations I have about the bill relate to how courts will determine whether a tree is likely to cause damage in the near future. In some cases that would be easy to assess, such as a rotting tree that is about to fall down. However, in other cases it may be quite complex, such as assessing the potential damage of a tree that is drying the surrounding soil and contributing to building settlement. I am concerned also about the cost to councils, which have additional responsibilities under the bill—which happens frequently in this place. Cost-sharing is a very serious issue for local government.
If interference or removal of a tree in question would normally require council approval, the relevant council can attend court to provide evidence. In such cases, councils will require resources to determine whether a court appearance is necessary, and if so, further resources for legal costs and evidence will be required. Councils also play a part in enforcing orders and there is a risk that they could be liable for damage if they fail to do so. This will require additional resources, including tree management and compliance staff and I call for additional assistance for local governments to enforce orders made under the bill.
In conclusion, I am pleased that the bill incorporates many of the City of Sydney council's suggestions about the exposure draft. I am especially relieved that the bill does not apply to councils, as it could have dramatically changed our urban tree management programs, which are so important, and would add the burden of court-related expenses to current tree settlements. I am proud of the greening initiatives undertaken by the City of Sydney council. So far this year it has planted 1,946 trees, and with the proposed increase in the city's population that ongoing policy is vitally important to the health and wellbeing of its residents and workers.
Mr DARYL MAGUIRE (Wagga Wagga) [12.02 p.m.]: The Trees (Disputes Between Neighbours) Bill will enable proceedings to be brought in the Land and Environment Court to resolve disputes between neighbours concerning trees in urban areas. The bill enables the owner of land to apply to the court for an order to remedy, restrain or prevent damage to the owner's property, or to prevent injury, as a consequence of a tree situated on adjoining land. An article in the Wagga Wagga Daily Advertiser of Tuesday 7 November 2006 had the headline "Tree the root of all evil". The article concerned a tree that both neighbours unanimously agreed was causing problems. However, the council refused permission to cut down the tree. The article stated:
ON THE NOSE: Ashmont resident Geoff Petts has asked council to remove a tree that is causing blockages in a neighbour's property, but he says they have refused to do so. The offending tree—
which is pictured in the article—
is on the property of another neighbour.
Wagga City Council's refusal to remove a tree continually blocking a sewage pipe stinks, according to Ashmont residents.
The moment retiree Geoff Petts first realised yesterday that pipes in a neighbouring property had burst was when his Jack Russell leapt onto his lap at breakfast, reeking, and covered in filth.
He said it isn't for the first time, and estimates that he has been forced to hose down effluent from his backyard seven times over the past three years.
"It's just putrid and I've had enough," he said.
The sewage streams into Mr Petts' shed and carport, before trickling down his driveway and out onto Truscott Drive.
"My requests to Council fall on deaf ears," he said.
"All they do is come and offer a 'band aid' solution by cleaning out the pipes."
He believes the problem is an imposing tree in the backyard of a neighbour, Jacki Warhurst, whose Mallory Street property adjoins Mr Petts' house and the residence where the effluent is spurting from.
Both Mr Petts and Mrs Warhurst asked council to lop the offending tree when the sewage pipes last burst in May, but they were unwilling to.
"We asked council to chop it down and they said 'we can't go round cutting every tree down'," he said.
Not only is the tree causing sewage to the pool, just metres from the side fence of Mrs Warhurst, a mother of two small boys, but its roots are also threatening her house.
"The roots are lifting up the footpath out the front and I'm worried the roots will come under the bricks of the house and bring it down," Mrs Warhurst said.
Council were unable to provide comment on Mr Petts' and Mrs Warhurst's grievances yesterday. The owner of the property where the sewage was springing from was also unavailable for comment.
The two neighbours are in unanimous agreement about lopping the tree, or removing it, but the council said it is unable to do anything about it. I perceive that the bill will allow Mr Petts to take action. He can apply to the Land and Environment Court to have the tree removed. Clearly, from the evidence I have read into Hansard, the tree is at fault and needs to go. I do not agree with the wholesale cutting down of trees; there is a little bit of greenie in all of us. We are all very conscious about the environment and how we must protect it, but there has to be commonsense in issues that confront local government and councils from time to time—and this is just one such issue.
A recent court case in Wagga Wagga involved a tree that had fallen on a house, after numerous requests to have it removed. If this bill helps to alleviate that sort of problem it is a step in the right direction. I have put that case on the record for the edification of honourable members because usually neighbours are adversaries in tree matters, with one neighbour not complying. In the case I mentioned, the two neighbours were in unanimous agreement, but the council was unable to assist. I understand the reason for councils not being able to assist in that kind of situation; it is a difficult problem that councils face daily. They receive numerous requests for the removal of trees, and perhaps some requests are unfounded, but others, such as the one I mentioned, certainly are based on good science and deserve to be agreed to.
The bill empowers a council to enter land to do the work. Isn't that ironic! In the abovementioned case the neighbour applied to the council, but the council would not help. The neighbour can go to the Land and Environment Court and be granted an order to enable the council to enter the land to cut down the tree, which it refused to do in the first place. That is hilarious in itself, but if it works I would have to say that it is another step in the right direction. I thank honourable members for allowing me to make a small, but important, contribution to the bill.
Mr BRYCE GAUDRY (Newcastle—Parliamentary Secretary) [12.07 p.m.], in reply: I have listened to the input from the honourable members representing the electorates of Manly, Wakehurst, Myall Lakes, Bligh and, finally, Wagga Wagga. The honourable member for Wagga Wagga gave his usual considered response to legislation. I thank all members who have taken part in the debate, which draws me to a famous verse that I will read into Hansard:
I think that I shall never see
A poem lovely as a tree …
A tree that looks at God all day
And lifts her leafy arms to pray.
A tree that may in Summer wear
A nest of robins in her hair.
Poems are made by fools like me,
But only God can make a tree.
And that is the case. The contributions we heard today generally support the Government's moves in that direction. I suggest that every member could have spoken in this debate today and brought to the House issues within their electorates concerning neighbour disputes about trees. The Trees (Disputes Between Neighbours) Bill replaces laws that are centuries old and will provide a simple and accessible process for the resolution of disputes about trees. The proposed legislation allows an application to be made to the Land and Environment Court for an order to remedy, restrain or prevent damage to property, or to prevent injury from a tree on adjoining land. The court is a specialist environmental jurisdiction. The court already employs a range of commissioners with relevant experience and will employ additional commissioners, including qualified arborists, to assist in dealing with applications under the legislation. The procedures available under the Land and Environment Court will allow for preliminary and on-site hearings.
These processes facilitate negotiation between the parties with the expert assistance of a commissioner. They promote alternative dispute resolution and minimise legalistic and adversarial proceedings. The proposed legislation is of significance to many people in the community who have sought a workable remedy for damage caused by a tree on a neighbouring property. A number of submissions from councils raised concerns that the bill has potential cost implications for councils, such as the potential for a substantial number of applications to be made in respect of trees in some local government areas.
Councils would not have the resources to comply with a significant number of orders made by the Land and Environment Court within a short time frame. Some councils have paid out substantial amounts in relation to damage caused by trees on council land. Having to defend claims in the Land and Environment Court instead of negotiating settlements would increase the costs associated with such matters. The Government therefore considers that, on balance, trees on land vested in or managed by council should be exempt from the operation of the proposed legislation. However, as made clear in the second reading speech, local government should expect this exemption to be removed following the review of the legislation in two years time, unless there are compelling reasons in support of an ongoing exemption.
The honourable member for Gosford suggested that the Government would exempt Crown land from the ambit of the bill. For his information, that is not the case. Clause 19 specifically provides that the Act binds the Crown, and this will not change. The definition of a tree will allow an order to be made where other vegetation, such as bamboo, causes damage. This is appropriate and will mean that disputes involving damage by any vegetation can be addressed. The proposed legislation does not allow for an application to be made to the Land and Environment Court for an order where a tree or a hedge is blocking sunlight or a view—a matter raised by many honourable members who contributed to this debate.
Urban trees play an important role in reducing air pollution, resulting in energy savings through reduced cooling costs and reduced stormwater run-off, and they have aesthetic and social benefits. Studies undertaken by the United States of America Department of Agriculture have shown that urban trees can remove thousands of tonnes of air pollutants each year at an estimated value of many millions of dollars. There is great potential in Sydney for loss of canopy cover if trees are removed on the basis of property value or loss of a view. Whilst the removal of trees may benefit an individual landowner by ensuring access to a view, it may also deprive nearby residents of the benefits associated with being able to view trees.
Land values may be increased by the presence of a view. However, it is not clear that individual property values should outweigh considerations such as environmental benefits and the community facility associated with trees. The Trees (Disputes Between Neighbours) Bill forges new ground. The Government considers it would be preferable to allow some time to assess the new scheme before considering if and how the statutory scheme might be applied in situations that do not involve damage to property or risk of injury. The legislation will be the subject of a review in two years instead of the usual five years.
In regard to so-called problem hedges, the legislation is not intended to regulate the types of vegetation that might be planted, or the appropriate height of foliage on private properties. These are matters that are governed by local government and planning laws. The Attorney General has written to the Minister for Planning, the Hon. Frank Sartor, requesting that consideration be given to introducing an appropriate form of regulation regarding hedges. As I said, the legislation is not intended to regulate the type of vegetation that might be planted or the appropriate height of foliage on private properties. Energy-saving devices such as solar heating play a significant role in preserving the environment, although energy efficiency might also be addressed by other means. For example, some councils allow new developments to adopt either solar water heating or five-star gas water heating.
The honourable member for Gosford suggested that if a hedge causes damage it is not governed by this scheme. As I have said, that is not the case. If a hedge causes damage, a property owner can make an application to the court for an order to remedy the situation. As is the case with conflicts about dividing fences, most disputes involving trees occur in built-up areas. The legislation applies to trees situated in areas with certain zonings, such as areas designated as residential, township, industrial and business under an environmental planning instrument. Trees on non-urban land may be subject to various statutory regimes, including legislation relating to native vegetation, land clearing, catchments and national parks.
In order to ensure that the provisions of the bill do not capture trees that are subject to such other statutory requirements, the bill has been drafted so as to limit the areas to which it applies. Once again, it will be subject to review in two years time. The Land and Environment Court is the appropriate jurisdiction to hear disputes under the proposed legislation. The Land and Environment Court is a specialist environmental jurisdiction. The court and its judges and commissioners have extensive experience with trees and deal with landscapes and tree issues every day. The court recently advertised for a number of acting commissioners with qualifications in arboriculture, ecology, heritage and engineering, all of which may be relevant to a dispute involving a tree.
The court may also engage arborists as court-appointed experts. It is anticipated that the majority of applications will be dealt with in preliminary hearings. This process facilitates negotiation between the parties with the expert assistance of a commissioner. It promotes alternative dispute resolution and maximises opportunities to avoid legalistic and adversarial proceedings, and also assists in clarifying the issues in dispute. Historically, the Land and Environment Court has had a country circuit. Depending on the number of matters filed under the proposed legislation and the demand for country on-site hearings, the court will reconsider establishing country circuits. This would ensure accessibility to the court by residents in regional and rural areas.
The honourable member for Pittwater spoke of the importance of mediation for tree disputes. The Land and Environment Court has the power to order mandatory mediation. This power will be utilised in relation to tree disputes, where appropriate. The honourable member for Wakehurst referred to fees. Fees relating to applications brought in the Land and Environment Court will be made consistent with fees in the Local Court to minimise costs associated with making an application. Where appropriate, the Land and Environment Court may appoint a court-appointed expert such as an arborist to assist the court. The cost to the parties would be less than each retaining his or her own expert, as they would bear only 50 per cent of the cost of a court-appointed expert. I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.