Anstey v Amon

Land and Environment Court (NSW)|2019-10-17

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

The application

Carolyn Anstey ('the applicant') has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders relating to a tree on neighbouring land in Gateshead belonging to Wendy Amon ('the respondent'). Specifically, she seeks:

Removal of a Bangalay tree at the respondent's expense
Compensation of $13,084 for property repairs already carried out and for property repairs required.

Ms Anstey filed with her application:

A quote for repairing her television antenna ($330)
A report by engineer Robert Sirasch
A quote for building repair works from Precision Building ($6,380)
A quote for repairing internal plaster ($800)
A receipt for repairs to her sewer pipe ($323.40)
A quote for complete sewer renewal ($4,631)

Ms Amon obtained and filed a report from arborist John Atkins.

Framework of this decision

The Bangalay is on land adjoining the applicant's. I am satisfied that the applicant has made reasonable effort to reach agreement (s 10(1) of the Trees Act). Therefore, I must determine whether the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or is likely to cause injury (s 10(2) of the Trees Act).

Brief outline of the situation

Ms Anstey has lived at her property for some 25 years and purchased the property a few years ago. Ms Amon's son planted the Eucalyptus botryoides (Bangalay) ('the tree') approximately 14 years ago. The tree is less than a metre from the common boundary between the two properties. The tree has grown quickly and is now more than 12 metres tall with a stem diameter of approximately 50 cm. It is healthy and structurally sound. Large surface roots can be seen spreading from the base of the tree into both properties. The steel panel fence along the common boundary is slightly displaced and raised above large woody roots passing into Ms Anstey's property. Ms Anstey's dwelling is approximately two metres from the boundary. Roof guttering on this side of her dwelling is filled with leaves and twigs from the tree.
Ms Anstey alleges the tree has damaged her property as outlined below.

Debris from the tree has damaged roof guttering.
The tree's roots have displaced the boundary fence.
Roots from the tree have damaged her sewer pipe. She has had the pipe cleared several times. The plumber found tree roots in the pipe. Ms Anstey said the pipes need replacing and provided a quote for renewing the complete sewer system.
Roots have displaced footings beneath her dwelling, resulting in uneven floor levels, displaced door frames and cracked plaster.
Branches have damaged her television antenna.

Evidence

For the engineering report, Mr Sirasch undertook no investigation. The principle established at [59] in Fang v Li [2017] NSWLEC 1503 outlines the type of investigations that might demonstrate causation. In his report, Mr Sirasch has included some photos and written a half page of text. His findings are general in nature and show no connection between the tree and any damage. His report does not assist the Court.
Mr Atkins' report describes the situation. He made the following conclusions.

The tree is damaging the fence and television antenna and this damage is likely to continue in the near future.
Roots from the tree may have blocked the sewer pipe but roots were not identified. Other trees are in the vicinity, on other neighbouring properties.
Roots may have contributed to movement of the dwelling's footings, but other causes are equally possible (reactive soil, other trees, subsidence, soil moisture variations) and have not been ruled out. No investigations have been undertaken to discover causation.

Mr Atkins gave oral evidence during the hearing. He pointed out Ms Anstey's hot water system and its overflow, next to her dwelling and near the tree. He suggested the overflow might have increased soil moisture levels in this area and encouraged root growth.
Due to the likelihood of ongoing damage, at least to the fence and television antenna, Mr Atkins recommended removing the tree and grinding out its stump and woody surface roots.

Findings

I accept Mr Atkins' findings regarding damage and the contribution of the tree. The tree has damaged the fence and television antenna and will continue to do so. It has not been demonstrated that roots have caused damage to sewer pipes or to the dwelling.

Fence

Woody roots have pushed up the steel panel fence along the common boundary. The tree has damaged the fence. Damage is minor and does not require repair. Ms Anstey has not provided a quote for repairing the fence.

Television antenna

The tree's branches have damaged Ms Anstey's television antenna repeatedly. Damage was foreseeable. It is reasonable that Ms Amon pays the cost of repairing the television antenna. Branches near the antenna need to be pruned.

Sewer pipe

According to Ms Anstey, the damaged sewer pipe is terracotta. Its condition is likely to have deteriorated over time regardless of the tree. There is insufficient evidence before the Court to demonstrate that the tree has caused damage. No orders will be made regarding compensation for the sewer pipe.

Dwelling

There is insufficient evidence before the Court to demonstrate that the tree has caused damage to Ms Anstey's dwelling. No orders will be made regarding compensation for repairs to the dwelling.

Debris in roof guttering

Although debris from the tree has gathered in roof guttering, possibly contributing to some damage, I see no reason to deviate here from the principle established in Barker v Kyriakides [2007] NSWLEC 292 at [20]: "For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree."

Conclusions

While I am satisfied that the tree has caused minor damage to the boundary fence and to Ms Anstey's television antenna, I cannot be satisfied on the adduced evidence that the tree has caused the more severe damage to her dwelling and sewer system as she claims. Ordering the tree's removal would be disproportionate to the damage caused. Orders to interfere with the tree will be limited to removing branches that may cause further damage to the antenna in the near future. Ms Amon indicated her intention to remove the tree, albeit not as a priority. If she determines to do so, these orders do not prevent that course of action.

Orders

As a result of the foregoing, the Court orders 1. Within 60 days of the date of these orders, the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to prune the Bangalay near her side boundary to remove all branches within 2 metres of the applicant's television antenna. 2. Pruning works ordered above must be carried out in accordance with AS4373:2007 Pruning of amenity trees and the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work. 3. The respondent is to give the applicant 7 days' notice of the works ordered above. 4. The applicant is to allow all access required to complete the works ordered above during reasonable hours of the day. 5. Within 30 days of receiving a receipted paid invoice for repairs to the applicant's television antenna, the respondent is to pay the applicant the lesser of $330 or the invoice amount. 6. If the respondent does not receive an invoice for antenna repairs within six months of the date of these orders, order (5) lapses.

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: 18 October 2019

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)