Chu v Dalamagas

[2023] NSWLEC 1202

Land and Environment Court (NSW)|2023-01-24

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2023-01-24

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

Background

The applicant, Damien Chu, shares a rear boundary between his Burwood property and that owned by the respondents, George and Georgina Dalamagas. Mr Chu occupies his residence while the respondents' property is leased to tenants. Both properties have been owned by the respective party's families for at least 20 years.
At issue is a Cinnamomum camphora (Camphor laurel) (the tree) that is growing close to and across the common boundary in the respondents' rear yard. The applicant claims that the tree has caused and is causing damage to his property and is likely to cause further damage in the near future.
The applicant provided evidence of correspondence with the respondents since October 2021 via the respondents' property agent, but his claims were consistently rebuffed.
Consequently, on 12 October 2022, Mr Chu made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), in order to remedy damage caused by the tree.

[2]

The applicant's claim

The applicant proposed the Court make the following order: 1. "to trim/ remove the branches of the offending tree to prevent injury to any person, and further damage to my property and to the surrounding areas."
The respondents resist the applicant's claims. During submissions, the applicant advised that his preference was tree removal, but claimed he nonetheless sought orders in his application for pruning as a result of the respondents' daughter Dimitra advising, via an email from the respondents' property agent dated 13 December 2021, that the "removal of the tree is extremely expensive and unaffordable for my father".

[6]

Damaged concrete

Camphor laurel trees are generally well anchored in the soil with large root systems, which are known by arborists to have the capacity to cause extensive damage to adjacent structures. This tree is sufficiently vigorous, and its trunk and primary roots are sufficiently large for it to have caused, and to be causing, such damage, particularly given that two of the concrete slabs extend to the common boundary in close proximity to the tree's trunk base.
In Stevens v Russell [2016] NSWLEC 1233 at [41], Commissioner Fakes noted 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."
Notwithstanding that excavation is thus generally required to expose relevant roots and prove a causal relationship between roots and damage, based on the arboricultural expertise I bring to the Court, and my inspection of the location of the tree's buttressing primary roots and their likely pattern of lateral distribution away from the trunk, I was satisfied that the obvious upward heaving, distortion and cracking of three concrete slabs, was probably caused by the tree's roots. Two concrete slabs are adjacent to the common boundary between a shed and the applicant's northern boundary and the third slab is adjacent to the applicant's northern boundary immediately east of the corner slab. There were no other trees or other likely alternative causes of this damage in the vicinity of the Camphor laurel. Consequently, s 10(2) of the Act is engaged by damage to the applicant's concrete.
The respondents claimed that they should not be responsible for damage to the concrete slabs as uplift and cracking must have progressed over many years, but the applicant had only informed the respondents about such damage relatively recently. The respondents submitted that had they been informed much earlier, the damage would have been far less severe and the resulting cost of repair much lower.

[7]

Damage from branches

The orders proposed by the applicant were "to trim/ remove the branches of the offending tree to prevent injury to any person, and further damage to my property and to the surrounding areas". Upon inspecting the tree in the applicant's rear yard, the applicant initially drew the Court's attention to the encroachment of much of the tree's canopy over his back yard and the rear of his dwelling, including foliage contacting the roof and gutter.
The applicant, however, made no claim that the roof or gutters had been damaged by the tree's foliage or branches, and no such damage, such as cracked tiles, was apparent. Further, I was not satisfied that such damage was likely in the near future, where, based on a guidance decision published in Yang v Scerri [2007] NSWLEC 592 (Yang), the 'near future', as a rule of thumb, is considered to be a period of 12 months from the date of the determination.
The respondents claimed that the applicant could prune the tree to avoid damage to the roof and gutters, and that such pruning should be considered "normal maintenance" that the applicant should have undertaken to protect his property.
When s 10(a) of the Act is engaged and orders are thus contemplated, the Court is required to consider relevant factors in s 12 of the Act. Subsection 12 (h)(i) considers "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 the land on which the tree is situated to prevent or rectify any such damage." As a consequence of s 12 (h)(i), given that the foliage impacting the roof and gutters was fairly insubstantial growth at the ends of relatively minor branches that could readily have been pruned with a pole pruner, it is reasonable for this to be considered an "omission by the applicant", in failing to maintain his own property. I therefore accepted the respondents' claim regarding "normal maintenance", above at [27].
In the absence of damage, the Trees Act does not prohibit encroachment of branches over neighbouring land. This issue is addressed in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), where the Chief Judge, Preston CJ, at [56], discussing the issue of nuisance, states that "mere encroachment is insufficient to complete a cause of action".
Similarly, though the applicant, in correspondence to the respondents, noted nuisance resulting from the "constant barrage of leaves that litter the surrounding properties", his Honour addressed this issue at [171] of Robson: "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."
Claims regarding excessive maintenance and/or the cost to manage such debris are considered in Barker v Kyriakides [2007] NSWLEC 292 (Barker), which, at [20], establishes the Tree Dispute Principle: "It is now appropriate to state these in a more specific form as a principle which may be applied when considering urban trees and ordinary maintenance issues arising from them. We state the principle in the following terms: 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 will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree."
As a result of the considerations above at [25] - [31], no remedy arising from damage caused by branches of this tree is available under the Act.

[8]

Risk from branches

Using the guidance decision published in McPherson v Lake [2017] NSWLEC 1081, at [10], with respect to injury, the Court considers the risk posed by a tree based on the characteristics of the tree, any history of previous failures and the circumstances of the site apparent at the time of the hearing.
While the question of damage caused by the tree is considered only with respect to the applicant's land, risk of injury covers both parties' properties, and relevant surrounding areas. The determination of Yang, which limits consideration of future damage to about 12 months, does not apply to injury.
Though the live branch scaffold appears to be sound, there are small to medium sized dead branches that overhang the applicant's yard close to their dwelling that constitute a risk of injury. The risk is relatively low but is sufficient to engage s 10(b) of the Act, and there is no consideration in s 12 of the Act that would prevent orders being made for the pruning of this deadwood required to mitigate this risk.
Based on the presence of damage to the fence and concrete slabs engaging s 10(a) of the Act, but orders only for pruning of deadwood likely to arise from the applicant's proposed orders for pruning, this outcome would fail to resolve the dispute. Consequently, the applicant sought leave to amend his proposed orders to tree removal and rectification of damage. Based on the respondents' submission that the applicant's lack of notification nullified or limited their liability for the damaged concrete, I granted the applicant leave to provide historical photographs that may assist the Court.
On 28 February 2023, I made the following directions: "Directions 1) At the onsite hearing on 24 January 2023 of Class 2 application 2022/304472 Chu v Dalamagas, made under Pt 2 of the Trees (Disputes Between Neighbours) Act 2006, the applicant made an oral application for amendment of proposed orders from tree pruning to include an alternate order for tree removal and rectification of damage. While the respondents maintained a position of refuting liability in relation to the tree, the respondents did not oppose such proposed amended orders. After consideration of the tree roots and the property damage I observed at the site inspection during the onsite hearing I allowed the applicant to amend his application to include an alternate order of tree removal and rectification of damage. 2) Prior to adjourning the hearing, I made oral orders for the applicant to provide historical photographs to the Court to allow a 'before and after' comparison of the property damage the applicant claimed was caused by the tree roots. 3) On 30 January 2023 the applicant provided such photographs to the Court as evidence and medical evidence under a heading of Additional Evidence 2 - "Extenuating circumstances". As I ordered only the provision of the historical photographs, I reject the Additional Evidence 2. 4) It appears that the photographs were not provided to the respondents, notwithstanding that both parties would have previously been advised that all correspondence to the Court must also be provided to the other party. I therefore direct that the applicant email the 10 photographs comprising Additional Evidence 1 to the respondents, within 7 days, by 7 March 2023. 5) In the event that the respondents would like to make a submission in response to the photographs I direct that they do so, within 14 days, by 14 March 2023." Thereafter, I will consider all the evidence including any submission from the respondents and proceed to final orders.
The respondents chose not to provide a response to these directions.
As the jurisdictional test in s 10(2) is satisfied by both the fence and concrete damage, s 9 of the 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 must consider relevant matters in s 12 of the Act, as follows:

[9]

Discretionary matters - s 12

The tree's trunk base and root buttresses are located adjacent to, and within, the applicant's property. While the respondents submitted that the fence could be retained around the tree within the applicant's property, I am not satisfied that this is a reasonable long-term solution (ss 12(a)).
With respect to removal, the tree is protected under Burwood Development Control Plan 2013 (DCP). As a result of the known propensity of Camphor Laurel's to cause structural damage, however, special consideration for applications for their removal is noted in the DCP at 6.1.5, an excerpt of which follows: "6.1.5 Assessment Process for a Tree Permit Application - Criteria for a Tree Permit Application. Applications for a Tree Permit will be considered by Council in accordance with the following criteria: The trunk of the tree is located within three metres of a building or five metres in the case of the following species: i) Camphor Laurel (Cinnamomum camphora). ii) Liquidambar (Liquidambar styraciflua). iii) Broad-leaf Paper Bark (Melaleuca quinquenervia). iv) River She-Oak (Casuarina cunninghamiana). v) Chinese Tallow Tree (Triadica sebifera syn. Sapium sebiferum). Whether the tree is a Camphor Laurel (Cinnamomum camphora) under 15m in height (ss 12(b))."
Pruning of the tree will not remedy damage caused by its roots (s 12(b2)).
The tree is valued by the respondents' family, who noted that it would provide considerable shade for the applicant and may add value to both parties' properties. It also provides scenic value to the respondents' land, and some intrinsic value to public amenity as it may be viewed from the street (ss 12(b3)(e)(f)).
As noted above at [28], s 12 (h)(i) considers "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 the land on which the tree is situated to prevent or rectify any such damage." Two elements relevant here are the applicant's failure to give notice to the tree owner when concrete damage was noticed, and the associated failure of the applicant to give the tree owner an adequate opportunity to respond to the damage.

[10]

Conclusions

After consideration of the parties' submissions, the applicant's photographs, and the site inspection which exposed that the tree's trunk and buttressed roots had grown across the boundary and considerably encroached into the applicant's land, I am satisfied that tree removal is the only viable option, regardless of the substantial benefits that the tree provides.
I am also satisfied that the costs of tree removal and fence repair should be borne by the respondents. Though the respondents claimed ignorance of damage caused by the tree, it is a reasonable expectation for the respondents or their property agents, as for any landowners, to inspect the site relatively regularly.
Based on the respondents' submissions, the tree may be expected to be at least 60 years old. Given the considerable extent of the tree's encroachment into the applicant's land, it is likely that the fence distortion damage has been occurring for many years, if not decades. The damage is obvious and visible from a considerable distance, and the tree's location close to the fence at the point of greatest damage should provide an obvious prompt for inspection. Even with only occasional site inspections, it is reasonable to expect that the fence damage should have been noticed long ago.
Responsibility for repair of the damage to the applicant's concrete slabs is less clearcut. Though the applicant displayed that damage to the concrete has also been progressing for many years, the applicant acknowledged his failure to give notice to the tree owner when damage was noticed, as claimed by the respondents.
Unlike the conspicuous fence damage, an expectation for the respondents or their property agents to look over the common boundary fence to see damage that the tree may have caused on the applicant's land is less reasonable. Though the applicant submitted that he received no response for more than 10 years to attempts to contact the respondents to progress this claim, as a consequence of the damage likely being less severe and extensive and the repairs thus likely being less expensive if the respondents had been notified when or soon after the damage was noticed, it is unreasonable for the cost of the concrete repairs to be borne solely by the respondents.
Having said this, because concrete slabs would not usually be subject to regular inspection, and nor would the reasonable homeowner usually be alert to the likelihood of cracking and upward heaving of concrete simply because of a tree's presence, it is likely that such damage would need to be obvious and thus probably quite significant before it was noticed. As such, because patching of the concrete slabs would usually not provide an adequate remedy for such damage, it is likely that the two concrete slabs closest to the tree would have required replacement when the damage was first noticed, though the extent of root thickening and work required for root removal would likely also have been less.
Consequently, I am satisfied that the costs arising from orders for concrete works should be apportioned equally between the parties, notwithstanding that the applicant may choose not to replace the removed concrete, but instead use the area for garden or lawn.
Camphor laurel trees are prone to produce vigorous root suckers if they are not adequately poisoned. Therefore, the orders will require poisoning of the tree some weeks prior to removal to improve poisoning efficacy.

[11]

Orders

The Court orders that: 1. Within 30 days of the date of these orders, the respondents, at their expense, shall employ AQF level 3 qualified arborists with all appropriate insurances (the arborists) to poison the Cinnamomum camphora (Camphor Laurel) in their rear yard, using a frill ring for herbicide application low on the trunk. This will require access to the tree base from both parties' properties. 2. Within 40 days of the date of these orders, the applicant, initially at his expense, shall employ contractors with all appropriate insurances, to remove three concrete slabs raised and/or cracked by the tree roots, including removal of the concrete from the site via the applicant's access. These are two slabs adjacent to the common boundary between a shed and the applicant's northern boundary and a third slab adjacent to the applicant's northern boundary immediately east of the corner slab. 3. To facilitate the works in Order 2, each party may procure up to two itemised quotations from contractors with all appropriate insurances, and exchange quotations. The apportionment of the cost for the works in order 2 shall be based on the cheapest of these quotations, subject to the chosen contractor satisfying the insurance requirements of the said order. Within 7 days of the completion of the works in Order 2, the applicant shall provide the respondents with a copy of an itemised paid invoice for the works in Order 2. 4. Within 7 days after receipt of the paid invoice in Order 3, the respondents shall reimburse the applicant by E.F.T. or Bank Cheque, for a quantum of 50% of the cheapest of the acceptable quotations from insured contractors, regardless of whether the applicant chose to proceed on the basis of a more expensive quotation. 5. At least 28 days after poisoning, by which time the Camphor Laurel should display extensive leaf death and defoliation, the respondents, at their expense, shall remove the fence panel impacted by the tree and employ 'the arborists' to remove the Camphor Laurel. The Camphor Laurel removal shall include sufficient grinding of the stump on the respondents' side of the boundary to enable reinstatement of the fence on the boundary line at the original level of the fence, and grinding of the entire stump base on the applicants land and of all roots exposed by the concrete removal to a sufficient depth to allow for replacement of concrete of the same thickness as the applicant's remaining concrete slabs, at the level that the concrete slabs were originally laid. All stump grinding debris including grindings mixed with soil shall be removed from the site in conjunction with the tree removal, at the respondents' expense. 6. All tree works shall be completed in compliance with Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 7. Presuming the applicant wishes to replace the three concrete slabs, within 14 days of the completion of the tree works, the applicant, initially at his expense, shall employ licenced builders or licenced concreters, to replace the three concrete slabs on a like for like basis with respect to concrete thickness and original levels and locations. 8. To facilitate the works in Order 7, each party may procure up to two itemised quotations from said contractors with all appropriate licencing and insurances, and exchange quotations. The apportionment of the cost for the works in order 7 shall be based on the cheapest of these quotations, subject to the chosen contractor satisfying the licencing and insurance requirements of order 7. Within 7 days of the completion of the works in Order 7, the applicant shall provide the respondents with a copy of an itemised paid invoice for the works in Order 7. 9. Within 7 days after receipt of the paid invoice in Order 8, the respondents shall reimburse the applicant by E.F.T. or Bank Cheque, for a quantum of 50% of the cheapest of the acceptable quotations from licenced builders or licenced concreters, regardless of whether the applicant chose to proceed on the basis of a more expensive quotation. 10. Within 7 days of the completion of the concreting works, or within 7 days of the completion of the tree works if the applicant elects not to install the 3 replacement concrete slabs, the respondents, at their expense, shall employ fencing contractors, with all appropriate insurances, to replace one or more Colorbond metal fencing panels as required to reinstate the common boundary fence at its original level in a straight line on the boundary, and the same colour. 11. The applicant shall allow all reasonable access for the contractors to complete the works, subject to a minimum of 72 hours emailed notice from the respondent, or the respondents' property agent, of the date and approximate start time of each parts of the works. Even if access is not required, the respondent, or the respondents' property agent shall advise the applicant of the date and approximate start time of each parts of the works, subject to a minimum of 72 hours emailed notice. 12. All works shall be undertaken during reasonable daytime working hours.