Cain v Mitchell

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

1. COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr and Mrs Cain of North Bondi, involving damage relating to a range of trees (the trees) located in the adjacent property along the neighbours western boundary.

Introduction

1. Mr and Mrs Cain, the applicants, have owned and occupied their residence since 1996, and have had an acrimonious relationship with the respondent, primarily related to tree problems, for at least a decade.
2. The respondent, Ms Mitchell, who had been living with her mother in the neighbouring property since 1998, became the owner in January 2016.
3. The trees are located along Ms Mitchell's western side boundary.

The hearing

1. Mr and Mrs Cain were self-represented, while Ms Mitchell was represented by Mr Benjamin Chedid and Ms Felicia Lay and Mr Jeremy Farrell (Counsel). Also in attendance with Ms Mitchell was her partner, Mr Bruce Melmon, and Ms Melanie Howden, consultant arborist. The Tree Management Officer (TMO) from Waverley Council was also present.
2. Starting at the street entrance to the north of Ms Mitchell's property, T1 is a clump of Dypsis lutescens (Golden Cane Palm). It is located about 10 metres in from the northern boundary, and its roots are in direct contact with the single brick boundary wall about 800mm in height. The wall has sustained a vertical crack at this point and part of the base has shifted from its foundations. It is also leaning slightly into the Cain property.
3. Further southward along the boundary, the next trees (T2-T4), had all initially been identified as Archontophoenix alexandrae (Alexandra Palm), but on site Ms Howden clarified that they were in fact two Archontophoenix cunninhamiana (Bangalow Palm) and one Archontophoenix alexandrae (T2). These species are easy to confuse and have very similar growth habits.
4. The thick fibrous roots at the base of these palms are growing adjacent to and hard up against the base of a timber paling fence, and are also obvious protruding under the fence, distending the base of the palings.
5. T5 is located in the rear yard of the property, and appears to be a Eucalyptus botryoides or Eucalyptus robusta (Southern or Swamp Mahogany). It is mature but quite small for this species, at about 10 metres tall. The Cains' issues with this tree relate to damage caused by overhanging branches, with respect to sticks and other refuse dropping onto the skylights and tiles of their rear roof, and the courtyard beyond it.
6. T6 is a Cotoneaster glaucophyllus (Cotoneaster), and again the issue is branches overhanging the Cains' rear courtyard. It is long established and though considered a tree by Waverley Council, this species can be classified as a large shrub/small tree.
7. The Court next inspected the damage along the boundary and within the rear courtyard on the Cains' side, before assembling at Ms Mitchell's for oral submissions.

The applicant's case

1. In their application, Mr and Mrs Cain seek the following orders; 1. (T1) Remove Dypsis lutescens (Golden Cane Palm) clumping. 2. (T2, T3, T4) Remove Archontophoenix alexandrae (Alexandra Palm) trees x 3 3. (T5) Remove/prune back to boundary Eucalyptus tree. 4. (T6) Prune back Cotoneaster glaucophyllus to boundary (Environmental weed). 5. As well as fence damage, Mrs Cain, in her written affidavit, contends that the palms fronds have caused building damage, and seeks "removal of T1 - T4 and "compensation for all damage to our property." At paragraph 24, Mrs Cain notes this includes "construction of a replacement masonry wall (of suitable engineering standards)." A quote of $22,418 plus GST for new boundary masonry wall, and $2400 plus GST for "replacement of damaged timber paling fence" from Ducros Constructions was provided by the Cains in the Tree Dispute Claim Details. 6. The building damage from T1 - T4 that Mr and Mrs Cain also claim for comprises: 1. Abrasion to surfaces of upper floor lightweight cladding, window frames, and roof gutters and fascia boards, along with holes in the fly screens. The Cains' noted that it was not possible to inspect and gain quotes for this damage without the removal of T1-T4. 2. Abrasive damage and corrosion to the metal deck roof. A quote for replacement of damaged metal deck roof for $6050 plus GST from Ducros Constructions was provided by Mr and Mrs Cain. 3. Vermin infestation from insects, rats and possums accessing the Cain property from the palm fronds, and internal water damage due to water channelling down the fronds and collecting in the window sill channels. 4. Restricted use of the windows due to palm frond pressing against them, along with associated "nuisance noise", reduction of natural light, and restricted air flow and ventilation of the bedroom and bathroom. 5. Inability to complete building works including corner window flashing, entry portico, external shading to the head of the windows required for BASIX Certification, and a DA approved boundary masonry wall. 6. Inability to successfully apply for Building Certificate.
2. The Cains' also claimed for likelihood of injury from "collapse of the masonry wall onto side access footpath adjacent to main front entry door", from large fronds that "regularly fall onto our side access footpath".
3. With respect to the Eucalyptus tree (T5), in Tree Dispute Claim Details under the heading Sudden Branch Drop (SBD), the Cains' note that "Large limbs regularly fall onto our roof, rear garden deck and side footpath. There are currently two damaged concrete roof tiles and a dented skylight metal frame above our living room." They cite water damage to plasterboard below the cracked roof tiles, and previous damage to garden furniture from dropping branches. They highlight future risk of injury from this tree, and included a quote for replacement of damaged concrete roof tiles for $510 plus GST from Ducros Constructions.
4. As to the Cotoneaster (T6), Mr and Mrs Cain claim that overhanging branches have previously broken and damaged a privacy screen and a step ladder, restrict access to sunlight and thus reduce amenity, and that the berries that drop from the tree are poisonous and likely to cause injury.

The respondent's case

1. Mr and Mrs Cain proposed orders are resisted by Ms Mitchell, and she has submitted alternative orders.
2. These request: "1. The Respondent to remove T1 … at her expense; 2. The Applicants to prune the branches of [T2-T6] to the boundary of the Applicants' property and to be clear of any existing or new fences, at the Applicants' expense; 3. The Respondent to prune the roots of [T2-T6], to be clear of any existing or new fences, at the Respondent's expense; 4. The Respondent to install timber sleepers along the current timber fence to retain soil on her property, with the costs to be divided in equal shares between the Applicants and the Respondent; 5. The Respondent to spot-repair the current timber fence by replacing wooden panels affected by the trees with the costs to be divided in equal shares between the Applicants and the Respondent; 6. The current masonry wall to be repaired to a solid and stable wall with an adequate foundation, to an overall standard required for a sufficient dividing fence; 7. The parties are to grant access to each other and any tradesmen, contractors, agents, and servants to their properties, as necessary to carry out work for the above orders on 24 hours written notice; 8. The Applicants to pay the Respondent's costs as agreed or assessed; and 9. Any other orders the Court deems fit."

Jurisdictional requirements

1. With respect to s 7, 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.
2. The Court is obliged to consider a number of matters pursuant to s 10 of the Act.
3. As required by s 10(1), I am satisfied that there has been an attempt by the Mr and Mrs Cain to reach agreement with the owner of the land on which the trees are situated, notwithstanding that extensive correspondence provided attests to a difficult relationship between the parties over many years. The Cains' contend that Ms Mitchell has obstructed their attempts to protect and maintain their property, particularly by refusing to grant the owner's permission required by Waverley Council along with applications for pruning. Ms Mitchell submitted that she was largely unaware of these requests, particularly prior to taking ownership in 2016, and that her mother's illness in her final years, plus her own diagnosis and treatment for cancer since 2015 had distracted her from such considerations. Evidence showing unsuccessful attempts to organise mediation was provided, though the attempts by Ms Mitchell dating from September 2018, appear somewhat belated.
4. The next major test that is posed, by s 10(2)(a) of the Act, is that the Court must be satisfied that the tree concerned 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 to any person.
5. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination.

Cracked masonry wall

1. Based on the location of the Golden Cane Palm (T1), and the vertical wall crack immediately adjacent, I accept that the roots of T1 are a cause, and the jurisdiction of the Act is thus enlivened. T1 is to be removed at the respondent's expense. The wall is to be replaced, and to facilitate this, a large, established Strelitzia shrub to the north of T1 will also require removal. Ms Mitchell committed to undertake this, at her expense.
2. The single brick boundary wall about 800mm in height was constructed more than 40 years ago. It does not possess the structural integrity to perform as a retaining wall, and does not appear to have foundations that would approach current engineering standards. Photographs provided show the wall originally had supporting piers, and that it leaned slightly into the Cains' even decades ago. Ms Mitchell contends that removal of piers, plus drainage and concrete works over recent years are the major reason for the wall failure, while the Cains' contend that progressive raising of the soil level on the high side of the wall, and planting of large shrubs too close to it, along with T1, have been major contributors towards the cracking.
3. Though the Cains' provided a quote for $22,418 plus GST for "construction of a replacement masonry wall of suitable engineering standards", the respondent has submitted that the wall's considerable age and original construction methods must be considered in determining liability. Citing similar circumstances in Bentley v Hinchen [2008] NSWLEC 1348, the respondent has noted at [12] that: "the wall has been constructed, we are satisfied, in a fashion which does not represent sound practice as to the depth the retaining posts are embedded in the ground and the orientation used in laying the sleepers for the retaining structure", and at [13], "As a consequence of those mitigating matters on the potential liability of the Hinchens, we are satisfied we are satisfied that it would be inappropriate to award the entirety of the amount claimed."
4. Normal wear and tear is expected to arise with any structure over time (s 12(i)) and this is a relevant discretionary factor under s 12 of the Act. Consideration must be given to the age and nature of the structure when determining the extent to which a tree may or may not have caused the alleged damage.
5. With consideration for all these factors, Mr and Mrs Cain are to seek three written builder's quotes for replacement of the approximately 800mm tall single brick boundary wall, to be constructed on a 'like for like' basis on the existing foundations. The quotes, which should include refuse removal of current fence, are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 65% of the lowest quote upon receipt of these quotes.
6. Should the Cains' proceed to replace the foundations of the front boundary wall, a level AQF5 arborist is to supervise the works to minimise adjacent root damage.

Timber fence damage (T 2-4)

1. I observed that T2 is very close to the boundary and is growing roots that are damaging the paling fence, and thus the jurisdiction of the Act is again engaged. Ms Howden recommended root pruning on the boundary side of the palm, including a buffer strip and ongoing maintenance to remove root regrowth. She submitted that stability in the ground was unlikely to be compromised. I disagree. After consideration of Missenden v Thompson & anor [2012] NSWLEC 1226, and the fact that it is the closest palm to the Cains' wall and roof, I order that tree T2 be removed at the respondent's expense. Roots overlapping and within 150 mm of the boundary shall also be removed. T3-4 do not appear to be causing wall damage, they contribute to shading and privacy for both properties, and should be retained.
2. The front half of the timber paling fence, where the damage is located, has sufficient paling and post deterioration to justify replacement. The rear section displays only minor paling damage, thus gap-filling with new palings is appropriate. I accept Mr Cain's argument that paling durability is enhanced by minimising litter accumulation and moisture at their base, and that the relative condition of fence palings on the different sides of his rear yard reflects this. Ms Mitchell's rear yard, being higher up the slope, and with T5 and T6 above, would be subject to ongoing accumulation of soil and natural debris against the western fence. Though soil and other ecosystem contributions justify consideration, the moisture accumulation against the fence could easily have been avoided by Ms Mitchell through regular maintenance. Having said this, I reiterate that the fence damage is relatively minor in this southern half and needs only specific paling replacement.
3. It is reasonable, therefore, that the 65% contribution to damage repair should again fall on Ms Mitchell. Mr and Mrs Cain are to seek three written builder's quotes for replacement of the front half (approximately) of the paling fence, plus replacement of palings in the rear half on a 'need' basis. The quote for $2400 plus GST from Ducros Constructions supplied by the Cains, for complete "replacement of damaged timber paling fence" can be used as a guide.
4. The quotes, which should include refuse removal of current fence, are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 65% of the lowest quote upon receipt of these quotes.

Building damage (T 2-4)

1. While I believe that Ms Mitchell may not have known the full extent of historical problems surrounding the trees, I do not accept her submission that receipt of claims to resolve tree and fence issues had come as a complete surprise; it seems quite disingenuous in the light of all the Cains' written evidence regarding communication, and because Ms Mitchell was clearly involved in dealings with the Cains' regarding trees, along with her mother.
2. However, I also accept the respondent's submission that the Cains' "failed to protect their own property". In s 12(i), I have discretion to consider: "anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and any steps taken by the applicant or the owner of land on which the tree is situated to prevent or rectify any such damage." See Zhang & anor v Long & anor [2007] NSWLEC 632 at [94]-[104].
3. The Cains' claim ongoing rebuttal, harassment and threats of legal action in response to their requests to prune any parts of Ms Mitchell's trees over many years. Regardless of this, and particularly given the extent of the damage that they assert, their response seems to be disproportionately inadequate.
4. Informed by Council TMO that they could not remove palm fronds without their neighbour's consent, and apparent threats of legal action, they responded with apparent inaction. They do not appear to have sought legal advice which would be reasonable and prudent, nor advice from an arborist.
5. The Council TMO has not assisted resolution of these issues in being rigidly focussed on 'owner's permission', without sufficient pragmatism or consideration of context. His submission upon questioning by respondent's Counsel that Waverley Council has never prosecuted for pruning without owner's permission, was quite telling.
6. Council Tree Management also recently sent an email to Ms Lay on behalf of the respondent making it clear that live or dead fronds and deadwood can be removed without Council's permission. One would think that the Cains' would have already clarified this, and as such become more emboldened, particularly given their claim at paragraph 9 of "Restricted use of the windows due to palm frond pressing against them, along with associated nuisance noise, reduction of natural light, and restricted air flow and ventilation of the bedroom and bathroom".
7. Reference should also be made to Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [225], in respect to this possible and or future damage or injury, where Preston CJ states: "the mere fact that a tree is situated on a person's land is insufficient reason by itself to justify making that person an insurer of other persons for any harm the tree may have caused to them or their property."
8. Therefore the Cains' contribution to property damage due to inaction, or omission to take action, must be taken into account when determining liability. With respect to abrasive damage and corrosion to the metal deck roof, rather than replacement, Mr and Mrs Cain are to seek three written quotes from appropriate paint specialists for repair. The quotes are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 100% of the lowest quote for these repairs upon receipt of these quotes.
9. No order shall be made in relation to "Abrasion to surfaces of upper floor lightweight cladding, window frames, and roof gutters and fascia boards, along with holes in the fly screens" in para 6, nor damage from vermin (para 8) as the Act applies to damage by trees, not to damage caused by animals that may occupy such trees.

Tile replacement and dropping debris

1. With respect to replacement of two roof tiles, due to damage from branches and twigs falling from the tree, and maintenance required to clear house gutters of leaves and debris from the tree, Mr and Mrs Cain is seeking an order for heavy pruning and compensation for roof damage.
2. In Robson v Leischke, at [56], Preston CJ states that mere encroachment is not damage, and at [171] annoyance or discomfort to an applicant by such things as leaves and flowers blown onto their property from their neighbour's land is not "damage to property on land" within s 7 of this Act unless they also cause damage to property on the neighbour's land.
3. Though there is some small deadwood in the Eucalypt's overhanging branches, it is unclear if responsibility for this roof damage falls on T5. Mr Cain produced a large dead branch by way of example, and noted that this apparently fell into their property from a Eucalyptus tree in rear yard of their western neighbour.
4. The issue of claimed damage to roof infrastructure from falling leaves is dealt with in Barker v Kyriakides [2007] NSWLEC 292 and the subsequent tree dispute principle, that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree.
5. This principle applies, in that it is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. The tile damage is considered minor, and the maintenance required reasonable, so this element of the claim is therefore dismissed.
6. It is reasonable that the Cains' suffer less physical obtrusion from the trees into their rear yard. Overhanging branches from T5 should be pruned back to branch collars so the overhang is approximately in line with the bottom storey roof line. T6 should be pruned back to branch collars approximately in line with the property boundary.
7. This work should be completed at the respondent's expense as it is not considered necessary.

Risk of injury

1. The Cains' request for tree pruning is also based on the perceived risk of injury from fronds dropping on to people or animals walking or congregating on the areas below the trees.
2. Using the guidance decision published in Yang v Scerri [2007] NSWLEC 592 with respect to injury, the Court considers the risk posed by trees based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.
3. There are no obvious characteristics of these trees that cause concern, and no evidence or claims of previous injury from falling fronds or a history of branch failures, other than during storms.
4. There is therefore no evidence to support the applicant's apprehension of injury. No tree risk assessment was provided to support this claim, and the level of risk is considered low and acceptable. This element is also dismissed.

Discretionary matters - s 12

1. In making an order, the Court considers relevant matters in s 12 of the Act.

• The trees are located in the respondent's property close to the boundary (s 12(a));
• In considering s 12(b), the trees are protected by Council's Tree Management controls under its Development Control Plan.
• With respect to s 12(b2), past pruning of the Eucalyptus tree has been of a reasonable standard, and the tree retains an apparent sound and aesthetically pleasing branch structure. Subsequent pruning specifications should maintain this and heavy pruning of overhanging branches should be avoided.
• As highlighted in Ms Mitchell's affidavit, the trees contribute to protection from the sun, to landscaping, to the amenity of the respondents' property, and to the immediate locality. The trees are visible from neighbouring houses and thus have intrinsic value to public amenity (s 12(b3)(e)(f)).
• T5 especially, being of a species native to the area, and because of its flowering and fruiting characteristics, could be expected to provide food and or shelter for local fauna and thus would contribute to local biodiversity (s 12(d)). This fauna diversity is also noted in Ms Mitchell's affidavit.
• Particularly given the slope of the land of both properties, the trees are likely to be providing benefit to soil stability, and to reducing localised water accumulation, erosion and run off (s 12(g)).

Orders

1. The orders of the Court are: 1. Tree T1 and T2 are to be removed, along with all roots overlapping and within 150 mm of the boundary, at the respondent's expense. 2. Whilst removing T2, any fronds from T3 and T4, currently impacting, or likely to impact the applicants' house in the near future, shall be removed at the respondent's expense. 3. Branches from T5 should be pruned back to branch collars so the overhang is approximately in line with the bottom storey roof line. This work is at the applicants' expense. 4. Branches from T6 should be pruned back to branch collars approximately in line with the property boundary. This work is also at the applicants' expense. 5. All tree work shall be undertaken by AQF level 3 qualified arborist, meet Safework NSW Work, Health and Safety guidelines, and comply with AS 4373-2007 Australian Pruning Standard. These works will likely require access to both properties, and such access is to be provided during reasonable working hours, subject to 24 hours written notice being provided. 6. With respect to the front masonry wall, Mr and Mrs Cain are to seek three written builder's quotes for replacement of the approximately 800mm tall single brick boundary wall, to be constructed on a 'like for like' basis on the existing foundations. The quotes, which should include refuse removal of current fence, are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 65% of the lowest price within 48 hours of receipt of these quotes. 7. With respect to the timber paling fence, Mr and Mrs Cain are to seek three written builder's quotes for replacement of the front half (approximately) of the paling fence, plus replacement of palings in the rear half on a 'need' basis. The quotes, which should include refuse removal of current fence, are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 65% of the lowest price within 48 hours of receipt of these quotes. 8. With respect to abrasive damage and corrosion to the metal deck roof, rather than replacement, Mr and Mrs Cain are to seek three written quotes from appropriate paint specialists for repair. The quotes are to be submitted to Ms Mitchell within 60 days of the date of these orders. Ms Mitchell is to pay Mr and Mrs Cain 100% of the lowest price for these repairs within 48 hours of receipt of these quotes. 9. Upon receipt of these orders, Ms Mitchell is to provide contact details including email address to Mr and Mrs Cain, and transmission of quotes to this email address shall be deemed as providing them to Ms Mitchell. 10. If the respective quotes are not provided to Ms Mitchell within 60 days of the date of these orders, orders (6)-(8) will lapse.

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