Edwards & Munn v Ellis

CASES CITED: Yang v Scerri [2007] NSWLEC 592 Nair v Edwards [2006] NSWSC 1310

APPLICANT Ms P. Edwards and Mr D. Munn, litigants in person LEGAL REPRESENTATIVES:

RESPONDENT Ms D. Ellis, litigant in person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: Two trees grow on the western side of the front yard of 95 Surf Street, Long Jetty. The tree within 1 m of the street boundary is a Sydney Red Gum. The the other is an English Oak tree located a few metres to the south. The property is owned by Dianne Ellis, and the trees were there, a bit smaller in size when her mother owned the property 30 years ago. Both trees are growing close to the common boundary with 93 Surf Street, Long Jetty, the adjoining property to the west.

2 Ms Edwards and Mr Munn are the owners of 93 Surf Street, Long Jetty. They purchased their property in December 2005. The property had been redeveloped from a single house to two, separate, brick units with a large concrete driveway on the eastern side, about eight years ago.

3 Ms Edwards and Mr Munn seek orders for the removal of both trees to rectify or prevent property damage, and compensation for damage to the common boundary fence.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 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 each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? 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? The issues 6 In their application and at the hearing, Ms Edwards and Mr Munn had five issues as their basis for seeking removal of the trees. Those issues are: o The Sydney Red Gum has damaged the metal fence between 93 and 95 Surf Street, and will cause further damage to the fence; o The English Oak tree has damaged the metal fence between 93 and 95 Surf Street, and will cause further damage; o Roots of the Sydney Red Gum may damage the water main under the road reserve outside 93 Surf Street; o Roots of the Sydney Red Gum have lifted a concrete garden edge on 93 Surf Street, and will cause further damage to the garden edge; o Roots of the Sydney Red Gum may damage the water meters and water pipes, the brick letter boxes and the concrete driveway on 93 Surf Street.

7 The claim for compensation by Ms Edwards and Mr Munn is based on the quoted cost to repair the metal boundary fence.

8 A letter in Ms Edwards and Mr Munn's application includes a statement that leaves had blocked a gutter and caused flooding that blew a light. At the hearing they advised that issue does not form part of this application, it relates to other trees at the back of the block that have already been pruned. The trees 9 The tree closest the road is a Sydney Red Gum (Angophora costata). It is about 10 m tall with spread of about 10 m and trunk diameter of about 0.4 m at breast height. The trunk is about 0.3 m clear of the boundary fence but the root crown is enlarged and extends about 0.3 m beyond the fence into 93 Surf Street.

10 The English Oak tree (Quercus robur) is about 9 m tall with spread of about 8 m and trunk diameter of about 0.25 m. The trunk is about 0.1 m clear of the boundary fence.

11 Both trees appear to be in good condition. From the history of the trees provided by Mrs Ellis' husband who was present at the hearing, the trees appear to have a slow rate of growth. Damage - first part 12 The first part of Ms Edwards and Mr Munn's claim is that the Sydney Red Gum has damaged the metal fence between 93 and 95 Surf Street, and will cause further damage. At the hearing we observed that the first panel of the metal fencing has been pushed out of alignment by the enlarged root crown, and was bowed into 93 Surf Street adjacent the Sydney Red Gum .

13 Mr Ellis drew our attention to a survey peg on the front boundary in the line of the common boundary. That peg was entirely on Ms Edward's and Mr Munn's side of the fence. Mr Ellis explained that when 93 Surf Street was redeveloped about eight years ago, there was an agreement made between the developer and Mrs Ellis' mother Mrs Nicholson who owned the property 95 Surf Street at that time, for the fence to be constructed entirely on Mrs Nicholson's property. The hearing was adjourned for a short time to allow Ms Edwards and Mr Munn to look for a survey plan of their property; however they were unable to find a survey that made comment on the position of the fence. On the basis of the observed location of the survey peg and information provided by Mr Ellis I accept that the fence is entirely the property of Mrs Ellis. Therefore damage to the fence does not meet the tests in s 10(2)(a) of the Act because the damage is not to the applicants' property.

Damage - second part 14 The second part of Ms Edwards and Mr Munn's claim is that the English Oak tree has caused a crack in the metal fence between 93 and 95 Surf Street, and will cause further damage. I inspected the fence beside the tree but did not see any damage. I find that what was purported in the photograph provided in the application to be a crack in the fence, is in fact just a visual effect caused by sunlight and shadow. Also, as the tree trunk is about 0.1 m clear of the fence I find that damage is not likely in the near future. On that basis I find that the tests in s 10(2) (a) of the Act are not met. Even if there had been damage to the fence, it would not have met the tests in s 10(2) (a) of the Act because, as previously explained, the damage would not have been to the applicants' property.

Damage - third part 15 The third part of Ms Edwards and Mr Munn's claim is that roots of the Sydney Red Gum may damage the water main under the road reserve outside 93 Surf Street. No evidence has been provided that such damage is likely in the near future, and as the water main under the road reserve is not the applicants' property, damage to it would not meet the tests in s 10(2)(a) of the Act.

Damage - fourth part 16 The fourth part of Ms Edwards and Mr Munn's claim is that roots of the Sydney Red Gum have lifted a concrete garden edge on the front boundary of 93 Surf Street, and will cause further damage to the garden edge. I observed the garden edge to be less than 1 m long extending from the brick letter boxes to the fence and base of the Sydney Red Gum.

17 Ms Edwards and Mr Munn's application contains an undated, one paragraph report by Treecorp Solutions that states: The tree concerned has also lifted the concrete garden edging….

18 I observed however, that the ground on the nature strip beside the garden edge was sandy and appeared to be eroded, and there was less grass there than in other locations around the tree. I consider that the erosion may be caused partly by foot or wheel traffic to the adjacent letter boxes on 93 Surf Street. Further, I consider that the eastern end of the edging is higher because it was laid on the existing sloping ground, as was the garden edge on the western side of the letter boxes that is on a greater slope. For these reasons I find that the garden edge has not been damaged by the tree, and therefore the first two tests in s 10(2) (a) of the Act have not been met. If I am wrong in this regard, and the roots of the tree have lifted the garden edging, I would find that the lifting is so minor that no intervention should be ordered with the tree.

19 As the garden edge abuts the fence post and base of the tree on Mrs Ellis' property, I consider that future growth of the tree may exert pressure on the garden edge. However, I find that damage to the garden edge is not likely in the near future, and therefore the third test in s 10(2)(a) of the Act is not met. If I am wrong in this regard, I would find the likely damage to be so minor that no intervention should be ordered with the tree.

20 Also, I observed that the garden edge extends beyond the common boundary as marked by the survey peg. Under s 12 (h) (i) of the Act, I am required to consider if anything, other than the tree, has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant. I consider that if the garden edge was cut back to the boundary, it would be clear of the tree and fence post, and any chance of damage in the near future would be further reduced. To not cut the edging back to the boundary would be an omission by the applicant of a preventitive action to avoid damage. On that basis I would also determine that there should be no intervention with the tree. Damage - fifth part 21 The fifth part of Ms Edwards and Mr Munn's claim is that roots of the Sydney Red Gum may damage their water meters and water pipes, the brick letter boxes and the concrete driveway. They rely on their own fears and observation that the soil near the tree appears to be raised by growth of tree roots, and on two short reports. The first report is a hand written note from Bateau Bay Plumbing dated 2/6/08 that states: Re: 1/2 - 93 Surf St, Long Jetty. Upon visual inspection of the front boundary of premises it is obvious roots from nearby tree could possibly damage services and utilities for these dwellings. ie water supply and metering devices . The second report, by Treecorp Solutions, referred to previously, states: The tree concerned …… could cause damage to the nearby water meters for the two units located at #93 .

22 Ms Edwards and Mr Munn confirmed at the hearing that no trench has been dug, nor any other below ground investigation carried out to determine what tree roots may be in the area between the tree and the structures on 93 Surf Street.

23 I note that Ms Edwards and Mr Munn do not claim there has been past or present damage, and no evidence has been provided of such damage. On that basis I find that the first two tests in s 10(2) (a) of the Act, concerning damage caused or being caused, are not met.

24 I observed that the brick letter box structure and the closest water pipe and meter are located about 1 m from the root crown of the tree, and that the concrete driveway is about 2 m from the root crown of tree. I note that Ms Edwards and Mr Munn's fears are based on the proximity of the tree, but I find no reason to assume that the mere proximity of the tree indicates that damage is likely in the near future.

25 I also observed that the ground surface between the tree and the structures was higher than other nearby areas on 93 Surf Street, but do not find that unusual considering the natural landform and excavation that had occurred to construct the driveway. I saw no reason to assume that the area had been lifted by tree roots.

26 The two reports appear to be based on nothing more than visual assessments of the general location of the tree and structures. Further, the plumber's report states only that roots of the tree 'could possibly damage' the water supply and meters, and the Treecorp report states only that the tree 'could cause damage' to the water meters. Neither report places that possibility in the near future, nor mentions the letter boxes or driveway.

27 In Yang v Scerri [2007]NSWLEC 592, the Court set out, for future consideration, a rule of thumb as to what might constitute the near future for the purposes of s 10(2)(a) of the Act. In that case, twelve months was adopted as an appropriate period. I also note that twelve months is a more generous period of time than was discussed in Nair v Edwards [2006] NSWSC 1310 (a tree nuisance case in the Supreme Court) where Windeyer J held that an appropriate period of time for future damage might be as short as six months. I find no reason to depart from those timeframes in this case.

28 On the basis that no evidence has been provided and I did not observe anything at the hearing to make me think that damage to the structures is likely in the near future, I find that such damage is not likely and therefore the third test in s 10(2)(a) of the Act is not met.

29 Even if some evidence of damage in the near future was likely, I am required to consider the matters in s 12 of the Act before determining the application.

30 Under s 12 (d) of the Act, I consider that the tree may be at least 50 years old and is likely to be a remnant tree or to be self seeded from the local native vegetation. Even if the tree was planted, I find that it contributes to the local ecosystem and biodiversity by providing food, shelter and habitat for various fauna.

31 Under s 12 (e) of the Act, I find that the tree is a significant landscape element in Mrs Ellis' front yard, being both attractive and interesting, and providing beneficial summer shade. Also, the tree is visible from surrounding properties and for a long distance in Surf Street, making a positive contribution to the local area.

32 Under s 12 (f) of the Act, I find that the tree provides intrinsic value through oxygen production, carbon sequestration; and climate amelioration particularly through cooling summer shade and interference with strong winds.

33 Under s 12 (g) of the Act, I find that the tree is likely to provide local stability to the sandy soil of 95 Surf Street and the adjacent road reserve.

34 Under s 12 (h) (i) of the Act, I note that Mr Ellis advised the hearing that the previous point of water supply entry to 93 Surf Street was in about the middle of the frontage of the property. He says that when the property was redeveloped as two units in about 2000, the new water meters were located near the tree. Similarly, the driveway was previously on the western side of 93 Surf Street, and was relocated to the eastern side near the tree with associated excavation and building of the retaining wall along much of the boundary with 95 Surf Street. I also understood him to say that the letter box was not under the tree prior to the redevelopment. I do not have any information regarding conditions that Wyong Shire Council may have set for protection of the tree as part of the development in 2000, but as 93 Surf Street was entirely cleared and redeveloped, I consider that the developer had the opportunity to avoid possible future problems by locating services, letterboxes and driveway at suitable distances from the tree. On that basis I assume that the developer made an informed decision that the structures could be placed in their present positions without the likelihood of damage by the tree for many years.

35 On the basis of these considerations I would also find that no intervention with the tree should be ordered. Compensation 36 The claim for compensation by Ms Edwards and Mr Munn is based on the quoted cost of $193 to repair the metal fence. I am only able to make an order if the relevant tree or trees meet one or more of the tests in s 10(2) of the Act. As none of the tests have been met by either of the trees, I cannot make any orders. I note however that at the hearing, Mrs Ellis agreed to repair the fence at her cost and to carry out that work by 31 December 2008. Conclusion 37 I find that damage to the fence, and any future damage to the fence, by the Sydney Red Gum does not meet the tests in s 10(2) (a) of the Act because the fence is not the applicants' property.

38 I find that the English Oak tree has not caused, is not causing, and is not likely in the near future to cause damage to the fence, and also, as the fence is not the applicants' property, this tree does not meet the tests in s10(2)(a) of the Act.

39 I find that any likelihood of damage to the water main under the road reserve outside 93 Surf Street by roots of the Sydney Red Gum does not meet the tests in s 10(2)(a) of the Act because the water main is not the applicants' property.

40 I find that the Sydney Red Gum has not caused, is not causing, and is not likely in the near future to cause damage to the concrete garden edge, therefore none of the tests in s 10(2)(a) of the Act are met in this regard.

41 I find that the water meters and water pipes, the brick letter boxes and the concrete driveway are not likely to be damaged in the near future by the Sydney Red Gum, therefore none of the tests in s 10(2)(a) of the Act are met in this regard.

42 As none of the tests in s 10(2) (a) and (b) of the Act have been met by either tree, I intend to dismiss the application. Orders 43 The Orders of the Court are that the application is dismissed.

      Peter Thyer
      Acting Commissioner of the Court
      The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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.