Berridale Building & Joinery P/L v Zhou Property Management P/L

Land and Environment Court (NSW)|2022-08-16|Before: Joinery P, Property Management P, Australia Wanjiang P

Judgment

COMMISSIONER: Light drizzle accompanied the Court for an inspection of a tree in Berridale, in the Cooma Monaro region. The tree is the subject of an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by Berridale Building & Joinery P/L (Berridale Building), which is represented by a director, Mr Klaus Tietz.
The tree is a mature Platanus x hybrida (London Plane) (the tree) about 12 metres (m) tall. It is located in the adjacent neighbouring property about one m from the applicant's east side boundary, which is shared with the respondents, Zhou Property Management P/L & Australia Wanjiang P/L, who operate a motor inn on their land.
The applicant's large block of land, which contains a variety of workshops and storage spaces, is mainly paved with thick reinforced concrete, with expansion joints between rectangular slabs. Mr Tietz has submitted that the tree's root system is causing uplift of concrete slabs, and that concrete has been undermined and eroded due to water runoff caused by "damming" from the tree. In his application, and in his verbal submissions, Mr Tietz also noted the maintenance burden of cleaning the tree's leaves from his property each autumn.
As a consequence, Mr Tietz proposed that the Court make orders to "remedy, restrain and prevent damage to (his) property".

Jurisdictional requirements

With respect to s 7 of the Trees Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
From the site inspection, it was apparent that available surveys were inadequate to clarify whether the tree was situated on "adjoining land". Therefore, I implemented a procedural framework used by Galwey AC in Chan v McDonald [2018] NSWLEC 1692 (Chan). In that case, the hearing continued, with resolution of the initial jurisdictional question arising from the tree's location, remaining subject to the evidence provided in a subsequently submitted survey.
Upon proceeding in this way, directions were made on the basis of Chan at [8], which stipulated a copy of Awad v Hardie (No 2) [2010] NSWLEC 1258 (Awad), be provided to the surveyor to define the level of survey detail required. Awad was thus provided to the parties, and to the applicant's surveyor.
The compliant survey, lodged with the Court on 9 September 2022, displayed that the tree base was about 95% on the applicant's property, and about 5% on the property to the south of the respondents' land, with which the applicant also shares a long common boundary.
When trees straddle a boundary, for the purposes of the Trees Act, the tree is situated on adjoining land if it is wholly or principally on that land (s 4(3)). The court has previously found, as in Dive v Lin &[2017] NSWLEC 1348, that to be principally situated on land, more than 50% of the areas of the tree's stem, where it enters the ground, must be on that property.
As the survey plan showed that about 95% of the tree base is positioned on the respondents' land, it is principally situated on its land, such that the application for orders may proceed.
The Court is next obliged to consider matters pursuant to s 10 of the Trees Act.
As required by s 10(1)(a) of the Trees Act, I am satisfied that there has been an attempt by the applicant to reach agreement with the owners of the land on which the trees are situated. Mr Tietz provided evidence of multiple reasonable written requests for removal of the tree, including consideration for the impact of COVID-19 on the respondents' business.
The next major test that is posed, by s 10(2) of the Trees Act, is that the Court must be 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.

Concrete pavement damage

A web of roots is growing from the tree base into the applicant's land. In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C notes that "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
Though the applicant undertook no excavation to expose the nature of any damage occurring as a consequence of the tree roots, and though I was not persuaded that the damage suffered to date was as severe as the applicant claims, I am satisfied that minor concrete pavement damage, manifested as uplift, has occurred in both the applicant's and respondents' properties.
I am also satisfied that, without intervention, damage resulting from the tree, and increasingly serious damage, is likely in future. Mr Tietz's statement that the tree is about 50 years old, with the propensity to grow considerably to an age of about 120 years, is entirely reasonable.
Notwithstanding only minor damage having occurred, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285, indicates that even relatively minor damage engages the Court's jurisdiction. As a consequence, s 10(2)(a) of the Trees Act is engaged.
Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2) of the Trees Act but it can be relevant in determining what orders, if any, should be made.
If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons.
In making an order, the Court considers relevant matters in s 12 of the Act.

Discretionary matters - s 12

Tree 1 is located in the south-west corner of the respondents' property about one metre from the common side boundary. The survey of 9 September 2022 indicated that about 5 % of the trunk base was located on the land of the respondents' southern neighbour, who also shares a long common boundary with the applicant, which continues south beyond that shared with the respondents. This location presents significant challenges to viable options for intervention with the tree's roots (ss 12(a)).
With respect to removal, the tree appears to be protected by Council's Tree Management Policy (ss 12(b)).
Past pruning of the tree has been rough and contrary to the guidelines in Australian Standard, AS4373-2007: Pruning of amenity trees, but has largely been restricted to the quadrant over the applicant's garage. No doubt, this pruning is intended to reduce the extent, and thus annoyance, of leaves dropping from the tree in autumn (ss 12(b2)).
There is, however, no restriction or remedy available under the Trees Act for trees overhanging neighbouring properties, if they are not also causing damage as defined in the Trees Act. This issue is addressed at [171] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), where Preston CJ says: "However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."
Further, the Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 (Barker), which, at [20], states that: "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, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree."
As a result, the dropping of refuse associated with the tree is not deemed to be damage under the Trees Act, and the required maintenance to clear leaves, seeds, flowers and small sticks from the garage roof, its gutters, and the surrounding area is considered to be reasonable (ss 12(b2)).
The tree is said to contribute to privacy, and to the amenity of the respondents. It also provides scenic value to the respondents' land, and intrinsic value to public amenity (subss 12(b3)(e)(f)).
Though the tree's contribution to local biodiversity is reduced because the tree is exotic, it may be expected to provide some food and or shelter for local fauna (ss 12(d)).
Ironically perhaps, the trees is likely to be providing benefit to soil stability and absorbing water, thus reducing localised water accumulation (ss 12(g)).

Conclusion

I have examined the tree and the site and have reached the following conclusions:
I am satisfied that roots from the tree have caused minor damage thus far, which has not caused consequential damage for which the respondents should be liable. In forming this conclusion, I accept Mr Neville's submission that the applicant's planned excavation for a drainage sump near the tree will incidentally clear tree roots from this area.
I am also satisfied, however, that, without intervention, this tree is likely to grow much bigger, and that moderate to major damage is likely as a consequence of its roots. Considering the reported strength of the applicant's concrete surfaces, this may mainly manifest as uplift, but as the roots thicken and spread, cracking of slabs and other unpredictable damage is also likely, in both parties' properties.
The jurisdiction of the Trees Act covers damage likely to be caused by a tree in the near future, and in Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year. While I am not convinced there will be much change over the coming year, considerable damage is inevitable in the short to medium term, and this must inform my orders. As a consequence, I am satisfied that, regardless of the tree's benefits, intervention is appropriate and required.
Plane trees are amongst the most tolerant of all amenity trees in terms of root damage impacts. In contemplating orders, I considered the option of a deep reinforced concrete block root barrier, inside the respondents' land along the common boundary, to retain the tree's benefits but remove the applicant's root problems. To be effective in deflecting likely root regrowth away from the applicant's land, the root barrier would need to extend at least four metres both north and south of the tree.
As the survey shows the tree's base partially on the respondents' southern neighbours land, the barrier could only extend to the southern property boundary. There would thus be no restriction of likely many roots growing across this southern neighbour's property into the applicant's land, and no root barrier can be inserted along this southern boundary, as the tree base envelops the boundary.
As a consequence, a root barrier is not a viable option to prevent likely serious damage, and thus tree removal shall be ordered, at the respondents' expense. In general, when orders are made by the Court, respondents carry the financial burden for the execution of such orders, unless there is a good reason otherwise. No such good reason was provided by the respondents, though I have ordered an extended period for the completion of the works, in consideration of COVID-19 impacts on the respondents.

Orders

The Court orders that: 1. The application is granted. 2. Within 120 days of the date of these orders, the respondents, at their expense, shall employ AQF level 3 qualified arborists who hold all industry appropriate insurances, to remove the Plane tree in the south-western corner of their property, to near ground level, and poison the stump. All refuse from the tree shall be removed from the site. 3. The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 4. The respondents shall provide the applicant with at least 72 hours written notice of the date and approximate start time of the tree removal works. 5. Should it be required, the applicant shall allow all reasonable access for the contracted arborists, who hold all industry appropriate insurances, to complete the works and remove all refuse from the tree from the applicant's property, upon receipt of at least 72 hours written notice. 6. The tree removal works shall be undertaken during reasonable working hours.

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 November 2022

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