Dean v Ellsworth

CASES CITED: Yang v Scerri [2007] NSWLEC 592

APPLICANTS Ronald and Audrey Dean (litigants in person)

LEGAL REPRESENTATIVES: RESPONDENTS Steven Ellsworth (litigant in person) Catherine Ellsworth (did not attend hearing)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

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 s7 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) made by Mr and Mrs Dean of 44 Bulgonia Road Brightwaters (Lake Macquarie local government area) against the owners of 2 eucalypts growing at 44a Bulgonia Road. The owners of that property are Mr and Mrs Ellsworth. 2 The applicants are seeking the following orders: 1. The removal of the 2 trees at the owners' expense, 2. The repair of damage to an asphalt driveway said to have been caused by those trees. The applicants have a quote for $14,949 for this work. 3. Reimbursement for previous damage caused to the driveway and water pipes said to have been caused by another tree on the respondents' property but not a tree subject to this application, 4. The recovery of legal expenses and costs associated with the application, and 5. The removal of any branches from trees or shrubs that overhang the driveway.

3 Before proceeding, item 3 cannot be considered as it relates to a tree that is not subject to this application. Commissioners do not have the jurisdiction to allow the costs in item 4. 4 The applicants are seeking these orders as they contend that the trees have caused damage to their driveway and could continue to do so. They also contend that the trees could cause damage to underground services. They also state that the trees pose a risk of injury to persons, presumably due to the uneven surface of the driveway. 5 An amended/ supplementary form supports the removal of one of the trees due to the desire by Mr Dean to align a boundary wall with the actual property line. He contends that the tree will be in the way of the works. This matter falls outside the Court's jurisdiction with respect to the Trees Act in so far as it meets none of the tests under s 10(2). 6 According to Mr Ellsworth, the land on which the parties' houses now sit was subdivided in 1988, some 22 years ago. The respondents purchased their block from the owner of the land in 1992 and built their house in 1997. Mr Ellsworth's uncontested oral evidence given on site was that the driveway dates from the time of the subdivision. The Deans purchased their property in late 2003 and have lived there since May 2006. 7 Prior to the paving of the driveway, the original owner installed the water, power and telephone services underground. These services run under the south-eastern side of the driveway close to the boundary of the lot eventually purchased by the respondents. 8 Based on evidence from an excavated trench along the edge of the driveway, the driveway appears to consist of about 50 mm of asphalt over about 50 mm of road base over a consolidated mixture of sandy soil, gravel, aggregate and sandstone. 9 The driveway provides access off Bulgonia Road to the applicants' property which is located on the lake front and to the rear of the respondents' property. The asphalt section is about 60m long. The respondents' property bounds the south-eastern side of the driveway. 10 The trees in question are 2 mature eucalypts, identified by the respondents' arborist as Eucalyptus tereticornis (Forest Red Gum). Tree 1 in this judgement is the tree growing towards the front of the respondents' property closest to Bulgonia Road. Tree 2 is located at the rear of the respondents' property and closest to the applicants' property. They are remnant trees in good health with no obvious structural defects. There are several other remnant trees on the respondents' property. 11 The respondents do not want the trees removed as they value the shade they provide thus avoiding the need for air conditioning. They also value the wildlife they attract and their visual amenity. 12 Tree 1 is located adjacent to the driveway. When Mr Dean raised the issue of realigning the boundary fence with the actual surveyed boundary, the question was asked as to the ownership of the tree. The Court has jurisdiction under s 4(3) of the Act only if the tree "is situated wholly or principally on the land". Mr Dean assured me that the tree was located on the respondents' property and I accept this. 13 The driveway extends to the base of tree 1. There are cracks and lifting in the asphalt radiating from the base of the tree that are consistent with being caused by upward displacement by woody roots. There are no roots visible in the cracks or on the surface of the driveway. 14 Tree 2 is located in the south-western corner of the respondents' property about 1.5m from the edge of the driveway. The applicants have excavated a trench along that edge in the vicinity of cracks and an exposed surface root. The trench shows two substantial woody roots at about 300mm depth with a diameter in excess of 150mm. These are most likely to be from tree 2. These roots have not been cut but the trenching has severed numerous small surface roots. 15 The applicants want the trees removed so that further damage does not occur once the driveway is repaired. The option of a root barrier was considered but rejected by the respondents, as this would entail the severing of these large roots and therefore the potential destabilising of the tree. 16 As stated earlier, the applicants are also concerned about the potential impact of the tree roots on the underground services located beneath the driveway. 17 In early 2006, a water pipe was broken. Photographs of an excavation of the driveway showed a woody root had grown between the pipes and was growing against the electricity conduit. The advice from the plumber was that the root had damaged the water pipe. This was questioned by Mr Ellsworth. The root was cut, the pipe repaired and the area backfilled and resealed. 18 The damage was not caused by a tree subject to this application but is the reason for the applicants' concern about future damage. 19 Under s10(2) of the Act, the Court must not make an order unless it is satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are a risk of injury to persons. In, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay. The tests under s 10(2) must be applied to each tree.

20 The Court must consider a number of matters under s12 of the Act. The relevant clauses in this case are; (a) The trees are wholly located on the respondents' property. (d) The trees are remnant, and from the uncontradicted evidence produced by the respondents, they do contribute to the local ecosystem and to biodiversity. There is a nearby designated wildlife corridor and the north-eastern side of Bulgonia Road is bushland. (e) The trees contribute to the scenic value of the land on which they are growing and to the locality. (f) The trees are visible from the street and form part of the canopy that contributes to the landscape character of the area and thus have value to public amenity. (h)(i) Anything other than the trees that may contribute to the damage. In this matter, the age and construction of the driveway is relevant. In uncontested evidence, the driveway is said to be 22 years old. Apart from areas that have been patched due to works by service authorities, the surface is original. We walked the length of the driveway and observed numerous cracks over its full extent. Some cracks showed radiating patterns of cracks not near trees, other cracks were straight and parallel or perpendicular to the direction of the driveway. The surface is uneven in areas away from trees as well as near them. The surface layer is thin and unlikely to meet current industry standards of construction. The driveway has been subject to 22 years of vehicular traffic.

21 Returning to the application and to s 10(2), it is found that the trees subject to this application have contributed to the damage to the driveway. However, the age and construction of the driveway are considered to be the main causes of its deterioration. 22 There is no evidence to suggest that they will, in the near future, cause damage to the underground services. 23 There is also no evidence that branches from trees and shrubs along the driveway have caused, are causing or could, in the near future, cause damage to property. 24 Similarly, there is no evidence that the trees pose an unacceptable risk of injury to any person. 25 However, as one of the tests under s 10(2) is satisfied for both trees, the jurisdiction is enlivened and the Court can make an order. 26 The Orders of the Court are: 1. The application to remove the trees is dismissed. 2. The application for compensation for damage said to have been caused by a tree not subject to this application is dismissed. 3. The applicants are to obtain 3 quotes for the repair of 2 sections of driveway adjacent to the 2 trees subject to this application. Section 1 is an area beside tree one for a distance of 5 m extending from the south-western edge of the brick path that leads to the respondents' front door to the north-east and for the width of the driveway. Section 2 is from a point midway on the patched section of driveway over a council drainage easement to the 4 th fence post on the metal dividing fence between the driveway and the respondents' property to the width of the driveway. This is adjacent to tree 2. 4. The quotes are to include the removal of the existing asphalt and base to a depth of 100mm and its replacement to this depth with asphalt to the appropriate industry standard. 5. With respect to tree 1, no roots greater than 50mm in diameter are to be cut. Where roots of this diameter are encountered, they are to be retained and the asphalt is to be ramped over the roots. [As the trench beside the area affected by tree 2 has cut roots to a depth of at leat 300mm, this condition does not apply to section 2.] 6. The removal of the existing asphalt within a radius of 2m from the base of tree 1 is to be done by hand. 7. The applicants are to discuss the quotes with the respondents and both parties are to agree on the choice of contractor. 8. The works are to be completed within 90 days of the date of these orders. 9. The respondents are to reimburse the applicants 40% of the cost of these works within 21 days of the receipt of a tax invoice for the completed works.

J Fakes Commissioner of the Court

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