Channon & anor v Norton & anor [2015] NSWLEC 1391 | Case summary

Land and Environment Court (NSW)|2015-09-25

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

Background

Mr and Mrs Channon ('the applicants') have lived at their Bargo property for 15 years. In their backyard they have a roofed structure next to their pool - a 'cabana'. Around three years ago they noticed cracking of the brick wall along the northern side of the cabana, alongside their side boundary, which is the common boundary shared with Mr and Ms Norton ('the respondents'). A 14-metre Tallowwood (Eucalyptus microcorys) grows on the Nortons' property, close to the Channons' cracked brick wall. The Channons informed the Nortons of the damage when they first noticed it.
The Channons wish to repair the wall but say this requires the removal of the Tallowwood. They have applied to the Land and Environment Court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for its removal. They do not seek orders for compensation. They seek orders for costs regarding reports and filing the application, but if they wish to pursue this they will need to file a Notice of Motion to be heard by the Registrar or a Judge of the Court.

Jurisdiction under the Trees Act

Before I can make any orders I must be satisfied that each tree has caused, is causing, or is likely in the near future to cause, damage to the applicants' property or injury to a person.

Have the Tallowwood's roots caused damage to the brick wall?

The hearing took place onsite so the situation could be observed from within both properties. Each party has obtained a report from an arborist. There are no reports from engineers regarding the wall. I bring my own arboricultural expertise and experience to the matter.
The cracked wall appears to have been constructed in two stages: the older part closer to the house and the newer part added later along the eastern half. Near the interface of these two parts of the wall, a crack extends from the bottom of the wall up and to the west to the top of the wall, through the mortar joints, opening up and widening towards the top so that the separation between bricks at the top of the wall is several centimetres.
The applicants have lifted paving that was on the ground within the cabana, and excavated soil, to reveal woody roots greater than 100 mm in diameter just to the east of the crack in the wall and in line with the adjacent neighbouring Tallowwood. They contend that growth of these roots has lifted the newer section of the wall and caused the cracking. They took levels which they say showed that the section of wall above the roots was lifted by the height of a brick.
The Nortons say they used a level on the wall and contend that the newer section is still level and that it is the older section to the west of the crack that has subsided. They contend that the footing beneath the older section of wall is inadequate and is less substantial than the footing beneath the newer brickwork.
There is no expert evidence to support either contention. I observed that it is the newer brickwork to the east of the crack that is now higher than both the older brickwork to the west and the newer brickwork at the eastern end of the wall. The apparent levels along the top of the wall are consistent with the wall being lifted by the large exposed roots. The pattern of cracking is also consistent with lifting by tree roots. Cracking from lifting is more likely to result in the widest part of the crack being at the top of the wall, whereas if the wall had subsided in the central part, as suggested by the Nortons, cracking should be widest at the bottom of the wall.
The exposed roots are close to the Tallowwood and there is no suggestion that they are from any other tree. I find that the roots are large enough, and the brick wall light enough, that it would be possible for root growth to lift and crack the wall. Given the high probability that roots are the primary cause of damage, and the lack of evidence as to other possible causes, I accept on the balance of probabilities that roots of the Tallowwood have caused damage to the Channons' wall. Therefore the Court's jurisdiction is enlivened with regard to this tree.

Does the Tallowwood need to be removed?

Both arborist reports identify structural defects within the Tallowwood, notably the bifurcated nature of the main stem and the presence of forks with included bark, especially where the stem forks into two. The applicants' arborist, Mr Mitchell Marino, views these defects as severe enough to require removal of the tree, whereas the respondents' arborist, Mr Paul Vezgoff, recommends that the tree might be retained with pruning, including the removal of one of the stems above the bifurcation.
Having viewed the tree I note that the extent of included bark is severe. On my assessment, removing one side of the bifurcated fork would leave a large wound in the remaining stem, with insufficient holding wood to support the remaining crown without risk of failure. Any such failure would be likely to cause significant damage to the Channons' cabana.
The Nortons suggested that the Channons might build a new wall on an alternative footing design that would not require the cutting of large roots that cross the boundary. This might be feasible if the tree was viable in the long term, but this is not the case here for reasons described above. Replacing their wall on a strip footing will require the removal of structural roots, and this will require removal of the tree, but there is no justification here to seek alternative solutions that would allow tree retention.

Other matters

The Nortons suggested that the tree would have been present when the previous owners of the Channons' property extended the brick wall by adding the newer brickwork. They say the presence of the tree should have been considered and the wall's footing designed accordingly. This might be relevant in apportioning the cost of repair works if compensation was being ordered, but the Channons are not seeking compensation. The extent of damage is severe and the brick wall needs to be repaired to allow the safe use of the cabana. The current condition of the tree does not justify consideration now being made for its presence when rebuilding the wall.
The Channons raised other issues regarding the risk of falling limbs, and the maintenance required to pick up leaves and twigs that fall onto their roof, their yard and into their pool. They also expressed concerns that roots might damage their pool. Because I have already found that tree removal is required, these are not matters I need to consider in making this decision.
The Nortons submit that they would require up to 60 days to arrange and complete tree removal. I accept this is reasonable. For simplicity the Nortons will be required to remove the tree and sections of the stump and roots within their property, and it will be left to the Channons to remove roots within their property as necessary when they do repair works to their cabana.

The Silky Oak

Turning to the Silky Oak further along the boundary, there is no evidence that it has caused or is causing damage to the Channons' property. Mr Norton has recently pruned branches clear of the Channons' shed as best he can. I accept that the tree is only 4 or 5 centimetres from the timber fence and that this might make it difficult to replace the fence. However this does not enliven the Court's jurisdiction. It is clear that it will eventually grow against the fence but this is unlikely to occur within the next 12 months, a period regularly adopted as a rule-of-thumb to represent 'the near future', since Yang v Scerri [2007] NSWLEC 592. Therefore I will not be making orders regarding the Silky Oak. I note that Mr Norton made a verbal commitment to the Channons during the hearing that he will remove the Silky Oak if that is required to replace the fence.

Orders

Therefore the orders of the Court are: 1. The application is upheld. 2. Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove the Tallowwood to ground level and to grind out all sections of the stump and woody roots within their property that are within 1 metre of the centre of the tree, to the common boundary, to a depth of at least 400mm below ground level. 3. The respondents are to give the applicants 7 days' notice of the works in (2). 4. The applicants are to allow any access to their property required for the works in (2) to be completed.

D Galwey Acting Commissioner of the Court

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: 28 September 2015

Channon & anor v Norton & anor

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