Calve v Deeth

CASES CITED: Krivoshev v Mahadevan [2009] NSWLEC 1277

APPLICANT Mr Ippolito (solicitor) SOLICITOR Ippolito Lawyers LEGAL REPRESENTATIVES:

RESONDENT Mr Mednis (solicitor) SOLICITOR MacElbing Mednis & Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

20357 of 2009 Serge and Cindy Calve v Michael and Kim Deeth

JUDGMENT 1 An English Oak Tree (the tree) is growing on the northern side of the front yard of 32 Girraween Avenue, Como West. The northern edge of the trunk is approximately on the common boundary with the adjoining property to the north.

2 Mr and Mrs Calve are the owners of 30 Girraween Avenue, Como West, the adjoining property to the north. They make an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify and prevent property damage, to prevent injury to people and for compensation. They seek orders for removal of the tree at the owner's expense, and compensation for $980 to carry out removal of roots under the driveway and repair of the driveway paving and edge. They are represented at the hearing by solicitor Mr Ippolito, and have provided two arboricultural reports by Mr Varley.

3 Mr and Mrs Deeth are the owners of the land where the tree is situated. They are represented at the hearing by solicitor Mr Mednis. They have provided an arboricultural report by Mr English who attended the hearing.

4 When assessing an application under the Act, the Court must be satisfied that one or more of the four tests in s 10(2)(a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property on the land? Is the tree now causing damage to the applicant's property on the land? Is the tree likely in the near future to cause damage to the applicant's property on the land? Is the tree likely to cause injury to any person? 5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 6 Further, before determining an application, the Court is to consider the matters in s 12 of the Act. The tree 7 The tree is an English Oak (Quercus robur) and is a tree within the meaning of that term in s 3(1) of the Act. The trunk of the tree appears to be situated wholly on the property, meeting s 4(3) and s 7 of the Act. As a consequence there is an application that the Court may determine.

8 The tree is about 13 m tall, has a crown spread of about 10 m and trunk diameter of about 680 mm. The tree is reported to be about 55 years old. It is a mature tree that would normally be expected to have a slow rate of growth but I note Mr Varley's measure that the circumference of the tree grew 5 cm in the four months from December 2008 to March 2009.

Damage 9 Although some pavers were slightly raised in a few mounded areas, none of those pavers had been lifted prior to the hearing in order to discover if the mounding was caused by roots. At the hearing the two most mounded areas were investigated.

10 A root of about 25 mm diameter was observed under the path to the front door, north of the driveway. That root was growing east-west, not from the direction of the tree. However, Mr English thought the root was from the English Oak, not from a Eucalyptus tree growing in the adjacent road reserve. The path pavers were thinner than the driveway pavers, and the base material appeared to be sandy site soil, not paving sand. I find that the base material is likely to have contributed to the growth of the tree root.

11 No root was observed under the most mounded driveway paving closer to the tree, even though the base sand was excavated to about 60 mm deep. Regardless, I am satisfied on the basis of proximity to the tree, that roots of the tree are likely to have contributed to mounding of the driveway pavers. However, I find that the mounding is such that could reasonably be expected from general wear and tear within the 16 years since the paving was installed, and should be corrected by the Calves as general maintenance.

12 I observed that the concrete strip that was the base of an older, removed fence has been cracked and pushed out of alignment at the base of the tree. However, the driveway paving appears to have been laid after most of that movement occurred.

13 I observed that some vertically installed edging pavers at the base of the tree have been pushed out of alignment, and find that damage to be caused by the tree.

14 The Calve's claim that the post of their carport closest the tree has been pushed out of alignment. We inspected the post by line of sight to other vertical elements, and with Mr Calve's spirit level. On the basis of those observations, I do not find that the post has been pushed out of alignment, nor that damage is likely in the near future.

15 No evidence of damage to the footings of the house has been provided, nor that any damage to the footings is likely in the near future.

16 In summary of damage, I find that the tree has, is, and is likely in the near future to cause minor damage to the brick paving of the Calves' driveway and path, the vertical brick edging of the driveway near the base of the tree, and the concrete strip of the base of the removed fence near the trunk of the tree. This damage meets the first, second and third tests in s 10(2)(a) of the Act. Consequently, the Court has power to make Orders in accordance with s 9 of the Act. Injury 17 Although some pavers are raised in slight mounds, I am satisfied that the paving does not present a serious risk of injury. Further, I find that the condition of the paving is such that could reasonably be expected from general wear and tear within the 16 years since the paving was installed, and thus does not meet the test in s 10(2)(b) of the Act, and should be corrected by the Calves as general maintenance. Considerations under s 12 18 The tree has intrinsic value to public amenity due to its location near the street corner where it is visible for some distance.

19 The tree is located very close to the common boundary and overhangs both properties, which the Calves consider detrimental to them. A similar matter was discussed by Commissioners of the Court in Krivoshev v Mahadevan [2009] NSWLEC 1277. In that case the Commissioners recognised that some disputes could be avoided if trees were planted well clear of boundaries, and they would generally recommend such placement. However, they also recognised that there are many well established trees in garden suburbs and environments that support canopy trees for all their benefits, and that those trees do not and should not be expected to strictly respect property boundaries. Mutual sharing of space for canopy trees that overhang boundaries is necessary so those trees can continue to contribute to the character of the area. Similarly in this case, I find it reasonable that the tree overhangs the common boundary and in so doing provides amenity to both properties and the community, and such overhang in itself is not a reason for removal of the tree.

20 Sutherland Shire Council has given consent to remove the tree, but does not require the tree to be removed, and the consent is conditional on the owners agreement to do so. At the hearing, the Deeths confirmed that they wish to retain the tree, and proposed that they pay for some pruning of the tree.

21 The Deeths say that the tree attracts possums in springtime, and it is likely to provide food, shelter and protection for numerous birds and other animals.

22 The parties were given a short adjournment during the hearing, in order to find some agreement on repairs and who should pay. I note that no agreement was reached, and Mr Calve would have required further time to resolve his position. I declined to adjourn the hearing to another time.

23 On the applicants own evidence, I find that much of the damage existed prior to 2005 when he first gave notice. I also note that there is no quantified change in the amount of damage since 2005. On that basis I dismiss the claim for past damage. Similarly, I find that any future damage has not been adequately identified and is likely to be very minor. On that basis I will not order any action to prevent future damage.

24 On consideration of the matters under s 12 of the Act, I find that the tree should be retained and no compensation should be ordered. Orders 25 The orders of the Court are: 1. The application is dismissed.

      Peter Thyer
      Acting Commissioner of the Court
      ljr

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