TREES [NEIGHBOURS] : Damage to propertypotential injurycompensation
Judgment (3 paragraphs)
[1]
JUDGMENT
COMMISSIONER: The applicants purchased their Sussex Inlet property in 2007. Growing along the common side boundary on the respondent's property was, and remains, a well-established row of trees. The applicants contend that a number of the trees have caused, or could potentially cause, damage to their property or could cause injury to anyone on their land, especially their small children. They note that they have no trees on their property.
The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the trees and the rectification of the damage to their property. The orders are sought at the respondents' cost.
The applicants' primary contention is that the trees have caused significant damage to their dwelling to the extent that it will require demolition. In material filed with the court (Exhibit B), amongst other things is a quote for $22,000 for the demolition of their dwelling.
The first respondent questioned the evidence that any of the trees have caused the damage to the applicants' house. He also observed that the applicants, being younger, could easily have removed some of the smaller overhanging branches. The respondent stated that his financial circumstances were very limited.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:
(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:
(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or
(b) is likely to cause injury to any person.
These tests must be applied to each of the trees the subject of the application.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…". In Robson v Leischke [2008] NSWLEC 152 at paragraphs [176] to [189] Preston CJ discusses the requirement for a clear nexus between the tree, the subject of the application, and the damage to property. At [179] in Robson, His Honour notes that a tree that is the subject of the application does not need to be the sole cause of the damage in order to engage the court's jurisdiction.
As the applicants are concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.
[2]
The trees and the alleged problems
Neither party engaged an arborist to prepare either an expert report or to attend the on-site hearing. The following comments are based on the arboricultural expertise I bring to the Court.
The application claim form identifies eight trees, numbered from the rear (east) to the front (west) of the parties' properties. The species were confirmed on site and the list in the claim form corrected accordingly.
Tree 1 (T1) is a Hymenosporum flavum (Native Frangipani) which extends over the boundary fence. The ends of the small diameter lower branches are in contact with the roof of the Granny Flat located at the rear of the applicants' property. While they do not appear to have caused any damage at this stage, given the contact it would be prudent to prevent future damage and remove the branches to achieve a clearance of at least one metre. I agree with the first respondent that the branches are small enough to have been managed by the applicants however, as s 10(2)(a) is met for this tree, orders will be made for the respondents to have the branches removed. While this tree leans heavily towards the applicants' property the lean appears to be a result of growing towards the light rather than instability.
Tree 2 is a Pittosporum undulatum (Native Daphne). The branches partially overhang the applicants' property but do not appear to have caused any damage. Encroachment in itself is not actionable under the Trees Act (see Robson v Leischke [2008] NSWLEC 152 at [169]). I saw nothing that would lead me to conclude that this tree poses a risk of injury or future damage. As s 10(2) is not met for this tree, no orders can be made for any interference with it.
Tree 3 is a Grevillea robusta (Silky Oak). This is a tall and well-established tree with little of the canopy overhanging the applicants' property. While there is some minor dead wood in the canopy I saw nothing that would satisfy the jurisdictional tests in s 10(2) and thus, as for T2, no orders will be made for any actions to be taken in regards to this tree.
Tree 4 is a large and healthy tree, probably a Eucalyptus botryoides (Bangalay), a locally indigenous species, and given its size, quite possibly a remnant of the original vegetation. Part of the canopy overhangs the applicants' property and there is a normal quantity of relatively small diameter dead branches within the canopy, some of which has the potential to fall into the applicants' property. While the tree has co-dominant stems with some included bark, I saw nothing that would lead me to conclude that failure is foreseeable within the Court's usual time frame.
The lower portion of the trunk of T4 has encroached across the boundary and has displaced a couple of sections of the shared metal dividing fence. According to the first respondent, the fence was erected prior to the applicants' purchase of their property, and installed in such a way as to accommodate the base of the tree. The applicants stressed that the displacement had worsened over the period they have owned their property.
I am satisfied to the extent required by s 10(2) that the dead wood in T4 that could fall into the applicants' property should be removed so as to prevent possible injury. Orders will also be made for the repositioning of the fence panels to allow for the base of the tree. As the displacement is towards the applicants' property, the orders will require the repositioning of part of the shared fence onto the applicants' land and the possible insertion of an additional small section of panel to fully secure the panels. No part of the tree is to be damaged in the process. The relatively minor displacement of an otherwise functional fence is insufficient to warrant the removal of a healthy and ecologically valuable tree.
Trees 5 and 6 are Pittosporum undulatum both of which partially overhang the applicants' property. T5 has recently died and some branches may fall into the applicants' backyard as the branches decay. As these could cause injury to small children, orders will be made for any such branches to be removed. Tree 6 is partly in contact with an incomplete cubby house. According to the applicants the cubby has been in this state for some time. The branches in contact with the structure are small and unlikely to cause damage to it or injury to anyone. No orders will be made for any interference with this tree. Consistent with the intent of the Tree Dispute Principle published in Black v Johnson (No 2) [2007] NSWLEC 513, the applicants have a large back yard and there are other areas away from trees in which the cubby could have been located.
Tree 7 is a Callistemon salignus (Willow Bottlebrush); this tree and Tree 8, a Liquidambar styraciflua (Liquidambar), are located closest to the applicants' dwelling. As stated above, the applicants' primary concerns are about the damage allegedly caused by the respondents' trees to their dwelling. During the hearing the focus of discussions was on the Liquidambar.
The applicants have not provided any written expert opinion. In their supplementary material (Exhibit B), they state:
Unfortunately we were unable to secure a building inspector at such short notice, but the damages are very noticeable and they speak for themselves. We have had a licensed builder overlook our place and he did say that demolition will be required but as he is not a building inspector or engineer he was unable to write a report.
The applicants filed their Class 2 application with the Court on 14 September 2017 and presumably were aware of the damage prior to filing. On the face of it, it would appear that the applicants have had some time to engage an expert however, for whatever reason they were unable to do so and rely on the photographs included with the claim form and the damages they say 'speak for themselves'.
The damage allegedly caused by the Liquidambar to their dwelling is listed in the application claim form and cross-referenced to the photographs. The damage includes: cracks in internal plasterboard ceilings, walls, cornices, and along skirtings and above robes; problems with windows and doors not closing properly if at all; lifting of splashback tiles; an uneven floor between the kitchen and the southern end of the dwelling (closest to the trees); a hairline crack in the front concrete path; a crack in a lower corner of a sheet of the external fibro cladding; lifting of a section of paved patio at the rear of the dwelling; and a leaking roof. The majority of the cracks between or of plasterboard sheets are in the range of 0-1-2mm.
In Exhibit B the applicants state:
Our understanding is that our house will need demolition as the roots have gone underneath the concrete slab and have lifted the foundations off the piers. This problem is only going to continue if those tree roots aren't removed. These trees have caused a lot of stress, worry and unnecessary extra work loads (and costs to us) on the weekends to keep our property looking its best. We have also not been able to undergo renovations which have been a long term plan of ours since the day of purchase.
The applicants were asked to show me evidence to prove the connection or nexus between the tree/s and the damage to the house. I was shown a slighted mounded section of earth between the Liquidambar and the southern façade of the applicants' dwelling. No excavations had been carried out to determine if the mounding was caused by a root and if so where it went. At ground level along the southern edge of the building is a narrow concrete strip. Absent any excavation, its depth, width, construction and purpose are unknown. Apart from one very fine crack, the strip appeared level and in good order.
From discussions on site, it appears that the southern end of the dwelling was an addition over what was once a driveway. Part of the dwelling is said to be on piers and a section at the rear of the southern façade is on a concrete slab. The section on the slab is a family room with a tiled floor. I saw no signs of any damage, such as cracking or lifting, in that floor. I agree that there is a change in levels between the southern kitchen door -the end of the original dwelling, and the southern rooms built at a later stage. The dwelling is thought to be at least 30 years old and is a single-storey, timber-framed fibrous cement cottage.
A Tree Dispute Principle developed by Galwey AC, published and discussed in Fang v Li & anor [2017] NSWLEC 1503, provides some guidance as to how the cause of alleged structural damage could be demonstrated. At [58]-[60] the Commissioner writes:
58 At this point, it may assist future parties applying to the Court pursuant to Part 2 of the Trees Act, where such applications include claims of structural damage to property, to provide some framework for inquiry that might assist an engaged expert to carry out the relevant investigations that would assist the Court to consider and determine the matter. This list of investigations is not exhaustive, but would assist in forming a sound chain of reasoning to demonstrate causation, and to eliminate other factors. Each site is unique, and each situation may require its own combination of investigations.
59 In cases where it is alleged that tree roots are causing structural damage to a building or other property, consideration of the following matters, via appropriate investigations, may provide useful information.
(1) If roots are found near footings, especially in areas where footings have moved, it is necessary to identify the tree to which the roots belong. This may be possible by physically tracing a root's path, or may require microscopic or DNA analysis. An arborist can provide useful information regarding species and growth traits of any nearby trees.
(2) It is important to collect information on the building's history and construction methods, as well as the history of the surrounding area, including any trees removed in recent years.
(3) The age, depth and construction type of the footings, especially in areas where footing movement is identified, is relevant and should be investigated and reported.
(4) Identifying the part of the building or structure that has moved, and in which way it has moved, is critical to determining causation. This might be done by undertaking a survey of the building or structure to identify and be able to demonstrate where and how it has moved and the nature of the movement (whether lateral, rotational or vertical). This is important as some movements of a building or structure may not, in the circumstances, be possible to attribute to a tree.
(5) Knowledge of where the building is still actively moving, during which seasons, and in which directions, will further assist in identifying causation. Where time constraints allow, this might be done by repeating the level survey over time, as well as monitoring any cracking patterns.
(6) Where footing movement is identified, it is important to know the ground conditions and soil moisture conditions in the vicinity of movement, as well as in other areas for comparative purposes. This can be done by undertaking routine soil investigation, such as boreholes for soil classification and soil moisture testing. If these conditions vary over time as a consequence of seasonal or other climatic conditions, more extensive testing to ascertain the impact of such variable conditions may be required.
(7) Downpipes and other pipes near the building, especially those near any areas of relatively higher soil moisture levels, can contribute to movement of footings. Therefore, the condition of all downpipes and other pipes should be investigated and reported.
60 To the extent to which the Court must be satisfied of causation, the burden of proof lies with the applicant. Such investigations would ordinarily be expected of an engineer engaged by an applicant to demonstrate the cause of structural damage. It would be unusual for an engineer to be able to demonstrate cause by simply recording the locations of cracking and noting the proximity of trees and locations of tree roots. Reports that include consideration of the above matters, with photographs and plans that clearly show their findings, would greatly assist the Court.
This Tree Dispute Principle implies a preliminary step; that is the presence of a root/ roots in the immediate vicinity of, or in contact with, footings has been demonstrated and not merely assumed. The applicants have failed to demonstrate any nexus between the respondents' trees and the damage but have assumed the damage has been caused solely by the respondents' trees. Also sometimes helpful in matters such as these are building inspection reports which are detailed enough to identify the condition of a structure when an applicant purchased it (see Freeman v Dillon [2012] NSWLEC 1057).
While there is a hypothetical possibility that a root or roots from one or more of the respondents' trees may have caused or contributed to some of the damage to the applicants' dwelling, there is no evidence, sufficient to meet the tests in s 10(2), that has been adduced. Therefore the Court has no jurisdiction to make any orders for compensation or for removal of the trees on the basis of structural damage. While the Liquidambar has several stems, I saw no evidence that it or the Callistemon were likely to fail or cause injury to anyone.
In their application claim form the applicants also raise concerns/ complaints about leaf litter and other debris [for a discussion of debris see the Tree Dispute Principle in Robson v Leischke [2008] NSWLEC 152 (2008) at [171] and in Barker v Kryiakides [2007] NSWLEC 292]. There is no evidence of any damage caused by the accumulation of debris. Concerns are also raised about whole tree failure. I saw nothing that would lead me to conclude that any one of the trees is poorly anchored and likely to fail onto the applicants' property in the foreseeable future.
As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.
[3]
Orders
On the basis of the evidence before me, with the benefit of the site inspection and hearing from the parties, and on the basis of the findings made in this judgment, the Orders of the Court are:
1. The application for removal of eight trees growing on the respondents' property is dismissed.
2. The application for compensation is dismissed.
3. Within 60 days of the date of these orders, the respondents are to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3 to carry out the following work:
1. Removal of the lowest branches of the Hymenosporum flavum (identified as T1 in the application claim form) at the north-eastern end of the respondents' property to achieve a clearance from the applicants' Granny Flat of at least one metre;
2. Removal of dead wood 30mm or more in diameter at its base from all parts of the large Eucalyptus sp (identified as T4) which overhang the applicants' property and other parts of the canopy within 2 m of the dividing fence within the respondents' property; and
3. Remove all parts of the dead Pittosporum undulatum (T5) which have the potential to fall into the applicants' property.
1. The work in order (3) is to be carried out in accordance with AS4373: 2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry or equivalent safety standard.
2. Within 120 days of the date of these orders, the respondents are to engage and pay for a fencing contractor or suitable tradesperson to rectify and make good the sections of dividing fence displaced by the trunk of the Eucalyptus sp. This may include but not be limited to the extension of a section of fence further on to the applicants' land and the insertion of a filler panel. No part of the tree is to be damaged in the carrying out of these works.
3. The applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and the safe and efficient carrying out of the works in orders (3) and (5).
Judy Fakes
Acting Commissioner of the Court
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Decision last updated: 23 November 2017