damage caused by respondent's tree during period of respondent's ownership
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Catchwords
TREES [NEIGHBOURS] Damage to propertypotential injurydamage caused by respondent's tree during period of respondent's ownership
Judgment (2 paragraphs)
[1]
judgment
COMMISSIONER: Ms Flanagan owns a property in Charlestown. She contends that roots from a Liquidambar have caused damage to her property. The tree has been removed but a number of roots remain and have suckered. Ms Flanagan has applied under s 7 Part 2 of the Trees (Disputes Between neighbours) Act 2006 (Trees Act) for orders seeking the removal of the remaining roots and any consequent regrowth or saplings, as well as remediation and replacement of damaged property.
The damage allegedly caused by the roots of the Liquidambar includes cracking of a concrete slab beneath and beyond security gates under the carport, lifting and cracking of sections of driveway, cracking of a low brick wall and blockage of drainage. The lifting of slabs has resulted in trip hazards.
Ms Kopecky, the respondent, purchased her property from her late father's estate approximately 12 months ago. Mr Wilcher, Ms Kopecky's solicitor, contends that his client took action to remove the tree shortly after she purchased the property and should not be responsible for roots of the tree that would have existed on Ms Flanagan's property before Ms Kopecky owned her property, nor for any damage that may have been caused by them in that period.
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.
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…". Further, 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 an application, and the damage to property.
The hearing was held on site. In order to clarify the alleged cause of the damage to Ms Flanagan's property, Mr Wilcher engaged Mr Guy Paroissien, a consulting arborist, to inspect the property and prepare a report. Mr Paroissien attended the hearing and provided assistance.
Ms Flanagan's application and claim form identifies the location of a number of trees on her property that she has had removed over the years. Mr Paroissien has annotated the diagram in the claim form which shows the location of the other trees and the areas of damage or potential injury. Mr Paroissien's report identifies the roots most likely responsible for the areas of damage.
During the hearing the areas of damage were inspected and the roots identified by Mr Paroissien confirmed.
It is clear that while the Liquidambar was removed and some of the stump ground and poisoned, the treatment was inadequate to kill most of the roots on Ms Flanagan's property. There are a significant number of Liquidambar suckers, some up to 1m high, which have grown from the remaining woody roots. These suckers extend throughout most of Ms Flanagan's front garden, into a garden within the nature strip, and one small sucker was observed in a side courtyard. Some of the woody roots in Ms Flanagan's front garden are at least 100 mm in diameter.
It is also clear that some of the exposed roots are from trees that were, and or are still, growing in Ms Flanagan's property. In 2014 Ms Flanagan had a very large Melaleuca quinquenervia (Broad-leafed Paperbark) removed from the side of her front garden. There are a number of surface roots from that tree still visible within her property. Other roots that were clearly identifiable were from Ms Flanagan's Banksia integrifolia.
The areas of most significant damage are the concrete slab of the carport and the cracked and lifted sections of driveway. There is a large and partly decaying root, which is probably from the Liquidambar, which is very close to a section of cracked concrete beneath the gates to the carport and the corner of the house. While this root may have contributed to the cracking, it is likely to have done so before Ms Kopecky owned her property. An application for compensation for damage to property must be made against the owner of the tree at the time the damage occurred (see Thornberry & anor v Packer & anor [2010] NSWLEC 1069). Ms Flanagan has not sought to join the previous owners of the tree as parties to these proceedings (see Cincotta v Huang & ors [2011] NSWLEC 1086).
In regards to the most lifted section of driveway, it would appear that this has been caused by a root from Ms Flanagan's Paperbark. While there is a very small Liquidambar sucker between other sections of driveway, this does not yet appear to have caused damage but it may do in the near future.
Given the extent of suckering from the remaining Liquidambar roots, and the vigour of some of those suckers, I am satisfied to the extent required by s 10(2) that these roots and suckers are currently causing damage to her garden, and if left to grow, could in the near future cause damage to constructed elements of Ms Flanagan's property.
While I note Mr Wilcher's submissions on whether his client should be responsible for tree roots that were present before she owned her property, in my view, this is a novel interpretation of the Trees Act. The Court has determined that a respondent is responsible for a tree that is wholly or substantially on a respondent's land. While the base of the trunk is taken as the portion of the tree which must be wholly or substantially on a respondent's land, neither the canopy nor the root system can be dissociated as part of the entire system that makes up a 'tree'. The majority of matters dealt with under Part 2 of the Trees Act involve part of a respondent's tree which has encroached onto an applicant's land - be it root or crown. Ms Kopecky became the owner of the whole of the Liquidambar when she purchased her property. While she took steps to remove most of it, parts remain and have continued to grow. Therefore, as it is an uncontested fact that the tree originated on her property, I am satisfied that Ms Kopecky is responsible for any damage it may currently be causing or could in the near future cause.
That said, I am not satisfied that Ms Flanagan has produced any evidence to demonstrate the increase in damage to the driveway and carport slab that would lead me to order any rectification of those structures at Ms Kopecky's expense.
However, I am satisfied that Ms Kopecky, or her agent, should pay for the poisoning and subsequent removal of Liquidambar suckers and exposed sections of Liquidambar roots from Ms Flanagan's property.
During the hearing, Mr Paroissien marked the woody Liquidambar roots and the larger suckers with yellow spray paint. This was done under the supervision of the Court and the parties. Mr Wilcher photographed the sprayed sections as a record. It was agreed that given the location of the suckers and roots amongst Ms Flanagan's other plants, any poisoning must be carefully and selectively applied by someone with appropriate skills and training such as a Bushland Regenerator. The suckers are to be poisoned when they are in full leaf so that any herbicide can be fully assimilated. The dead suckers and sections of exposed roots can then be removed by a combination of mechanical grinding and by hand with a saw, mattock or crowbar. It should be sufficient to sever and remove sections of root rather than attempt to uncover and track all woody roots throughout Ms Flanagan's front garden.
Therefore, the orders of the Court are:
1. The respondent is to engage and pay for a qualified Bush Regenerator with appropriate skills, experience and qualifications in the use and handling of chemicals to carefully apply an appropriate herbicide to all Liquidambar suckers on the applicant's property and to drill and poison the woody roots identified by yellow paint. This work is to be carried out in a way that minimises damage to any other living roots or plants. This work is to be carried out within the last two weeks of October 2017.
1. The respondent is to engage and pay for an arborist to remove, by mechanical grinding and or by hand, the dead suckers and the woody roots identified by yellow paint from the applicant's front garden. This work is to be carried out in a way that minimises damage to any other living roots or plants. Smaller diameter woody roots that cannot be mechanically ground are to be severed in sections and removed by hand. This work is to be carried out between December 7 to 21 2017.
2. The applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and carrying out the works in (1) and (2).
Judy Fakes
Acting Commissioner of the Court
[2]
Amendments
04 August 2017 - Correction to Case Title
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Decision last updated: 04 August 2017