Ferderer v Cunninghame

The hearing

1. Due to COVID-19 restrictions on travel and gatherings, the hearing took place via audio-visual means according to the Land and Environment Court's 'COVID-19 Pandemic Arrangements Policy'. I was satisfied from the extensive material filed with the Court by both parties, considered along with the parties' submissions, that I could determine the matter on its merits and that this decision would not suffer due to the lack of a site inspection.
2. Ms Ferderer obtained the following evidence, which she filed with the Court:

• Quote to repair concrete slab ($13,794);
• Arboriculture report dated 16/10/2019 by Andrew Norman, consulting arborist, that did not comply with the 'Uniform Civil Procedure Rules 2005 - Schedule 7'.

1. The Cunninghames obtained and filed the following evidence:

• Engineering report dated 13 August 2020 by John Condon, amended from an earlier version to comply with the 'Uniform Civil Procedure Rules 2005 - Schedule 7';
• Various documents subpoenaed from Eurobodalla Shire Council ('Council') relating to consent for development on the applicant's property.

1. Ms Ferderer was represented by Mr Fleming; the Cunninghames were represented by Mr Allan. Mr Fleming asked the Court to adjourn until a site view might be possible. Since filing the application and receiving the respondents' evidence, Ms Ferderer's son had excavated a trench parallel to the common boundary to expose roots, which the applicant wished the Court to observe. The nature of this jurisdiction, with onsite hearings being the norm and parties often self-represented, can result in additional evidence being available at an onsite hearing - evidence not filed earlier with the Court. Mr Allan objected to the applicant's proposal, pointing out that the parties have been aware for some time that the hearing may not take place onsite, and that an earlier directions hearing set out a timetable for further evidence (photographs, for example) to be filed with the Court some weeks before the hearing. The applicant has not provided photographs of the trench - in fact, the respondents first heard of the trench at the hearing. Considering the other evidence available to the Court, and the importance of several jurisdictional matters, I decided to proceed with the hearing via audio-visual means, with this issue to be determined at the hearing's end, at which time an onsite view could be arranged for a later date if necessary.

Zoning of the respondents' land

1. The Cunninghames' land, like Ms Ferderer's, is zoned 'RU4 Primary Production Small Lots' ('RU4') in the Eurobodalla Local Environmental Plan 2012 ('the LEP'). It does not fall within any of the designated zones in s 4(1)(a) of the Trees Act. Therefore, for the Trees Act to apply to the Cunninghames' trees, the land must have the substantial character of one of the designated zones, having regard to RU4's purpose.
2. Mr Fleming suggested that the Trees Act applies here because the primary purpose of both properties (the applicant's and the respondents') is residential. Mr Allan, on the other hand, posited that the objectives of RU4 might not have the substantial character of any of the designated zones. Both suggestions are reasonable.
3. The LEP specifies the objectives of RU4: 1 Objectives of zone • To enable sustainable primary industry and other compatible land uses. • To encourage and promote diversity and employment opportunities in relation to primary industry enterprises, particularly those that require smaller lots or that are more intensive in nature. • To minimise conflict between land uses within this zone and land uses within adjoining zones.
4. Activities permitted without consent in RU4 are: "Environmental protection works; Extensive agriculture; Home occupations".
5. The objectives of Zone R5 Large Lot Residential (R5) of the LEP (a residential zone for the purposes of s 4(1)(a) of the Trees Act) include: • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To provide opportunities for small scale rural activities where compatible with the existing residential accommodation.
6. Activities permitted without consent in R5 are: "Bee keeping; Environmental protection works; Extensive agriculture; Home occupations".
7. The properties are close to the township of Moruya (within walking distance) and have the substantial character of the 'Large Lot Residential' Zone. I am satisfied that the Trees Act applies to the respondents' land. The applicant's issues regarding the trees should not be prevented consideration on what is, in this case, a debatable issue of land zoning.

The trees

1. Ms Ferderer's application is for the removal of 19 Leyland Cypress trees ('the trees') located on the Cunninghames' property adjacent to their common boundary. The report of arborist Andrew Norman states there are 30 Leyland Cypress in a row approximately 3 metres from the boundary fence. According to Mr Norman the trees are in good health, with good structure, generally symmetrical with some stem bifurcations and small deadwood.

Damage to the applicant's property

1. Ms Ferderer alleges the trees are damaging her property through their "extending branch canopy and expanding root ingress". No evidence was adduced of any damage caused by the trees' branches. Ms Ferderer alleges that the trees' roots have damaged the concrete slabs and aprons of her two sheds. The sheds are approximately 7 metres from the trees, on lower ground, with a retaining wall between the sheds and the common boundary.
2. The damage consists of cracking in the sheds' concrete slabs and aprons. Shed 1 of Ms Ferderer's application was constructed around 1998 on a concrete slab, with a surrounding concrete apron added later. Shed 2 was constructed on a concrete slab in 2017. Ms Ferderer's application includes photographs showing several cracks in these concrete slabs. Cracks are typical of those often observed in ageing slabs. Some have several millimetres of vertical separation between the concrete either side of the crack.
3. The arboricultural report of Mr Norman provides no evidence of tree roots causing damage. Mr Condon's report includes photographs of several cracks in the concrete slabs. He collected samples from several boreholes between the sheds and the boundary, on the upper side of the retaining wall, and found only small tree roots. Mr Condon concluded there were other reasons for the cracks in the concrete, including concrete shrinkage, the later addition of concrete around the original slab of the older shed, and the lack of expansion joints. He did not attribute any cracking to tree roots. I found his investigations were somewhat limited, and his report lacked proper reasoning for his conclusions.
4. Mr Fleming explained that a trench has now been excavated between the shed and the boundary, along the length of the area of concern, to a depth of approximately 600 mm. Roots were found in the trench. I asked how the trench was dug, and was informed that Ms Ferderer's son used an excavator.
5. Ms Ferderer also alleges that debris falls from the trees, mostly in the form of "pine needles", damaging her water tank filters and affecting water quality.

Findings

1. As I established earlier, the principal jurisdictional test in this matter is at s 10(2)(a): The Court must not make an order under this Part unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property.
2. Taking all the available evidence into account, including the presence of tree roots in the recently excavated trench, I am not satisfied that cracks in the concrete are caused by tree roots. In the words of Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, at [62]: "As the respondents submitted, something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes Between Neighbours) Act to make an order to remedy, restrain or prevent damage as a consequence of a tree. In the language of Jenkinson J in McDonald, confidence on a "bare preponderance of probability" has not been engendered on the evidence adduced that the Sydney Blue Gum was a cause of damage to the applicants' dwelling. Embracing the language of the applicants' submission, I have not been left in a state of belief, on the balance of probabilities, that the tree is a cause of that damage."
3. The evidentiary burden lies with the applicant. On the balance of probabilities, I cannot be satisfied that the trees have damaged Ms Ferderer's sheds.
4. There is no evidence that the trees have caused damage through the growth of their branches above the applicant's property.
5. I have not been presented with any evidence that would convince me that debris from the trees has damaged Ms Ferderer's water tank filters. However, if these filters have been damaged or blocked by debris from the trees, I would not make any orders on this element of her application for two reasons. Firstly, reasonable maintenance could prevent such damage occurring, as per the principle in Barker v Kyriakides [2007] NSWLEC 292 at [20]. Secondly, Ms Ferderer has chosen to place her water tank beneath or close to these trees, which were growing here at the time, when other options were available to her. The relevant principle here, from Black v Johnson (No 2) [2007] NSWLEC 513, is discussed further below.
6. Because I am not satisfied that the trees have caused damage, it follows that I cannot make any orders. However, if sufficient evidence showed that the trees have damaged the applicant's property, enlivening the Court's jurisdiction, I would need to consider matters at s 12 of the Trees Act. Relevant s 12 matters are discussed below.
7. If the applicant demonstrated that a tree root had caused damage, I would need to know which tree caused the damage before I could make any orders for that tree. The Court cannot make a blanket order for removing 19 trees without knowing which ones are causing damage, and which are not.
8. If damaging trees were identified, then the appropriate remedy must be found. In this case, there is no need to remove the trees. A trench has already been excavated by the applicant's son to a depth of 600 mm. It is likely that most roots, if they crossed this line, were in this upper layer of soil and have already been severed. Those that are deeper may be cut by the applicant in the same way, as any damage resulting to the trees is now mostly done. Backfilling the trench with compacted material would minimise future root growth in this area. There is no need to remove the trees.
9. The Court would also consider the principle in Black v Johnson (No 2) at [15]: the trees were here first. The trees were mentioned in Council's written report when considering a 1998 application for a shed on the applicant's property. The trees predate both sheds and the water tank. The applicant has a large parcel of land with numerous options for locating these structures, but chose to locate them close to a row of Leyland Cypress trees. If any remedy was to be ordered (which it is not), the cost and responsibility for the works would lie with the applicant.
10. Considering the conclusions reached above, I saw no need to agree to the applicant's request for an onsite view.
11. Regarding Ms Ferderer's application for costs, Commissioners of the Court do not have the power to make orders for costs. She would need to file a Notice of Motion to be determined by a Judge or the Registrar of the Court. However, I note that her application has otherwise been unsuccessful.

Orders

1. As a result of the foregoing, the Court orders that: 1. The application is refused. 2. The exhibits are returned apart from Exhibits A and B.

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