Gardiner v Austin

Jurisdictional requirements

1. With respect to s 7 of the Act, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
2. The Court is obliged to consider a number of matters pursuant to s 10 of the Act which states: (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (2) 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, or is likely to cause injury to any person.
3. It is clear from details in and attached to the application, that the applicant has satisfied the requirements of s 10(1). Copies of correspondence with the respondent's agent display attempts by the applicant to negotiate and includes a final letter of demand. No genuine attempt at resolution was received in response. Ms Gardiner also provided 21 days' notice of the application.
4. With respect to s 10(2)(a), Ms Gardiner claimed that roots from T1 have caused, are causing, or are likely in the near future to cause damage to her property.
5. In Stevens v Russell [2016] NSWLEC 1233 at par 40, Fakes C notes that "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required".
6. Roots often cause uplift of relatively light structures, such as the concrete slab and pavers near T1. Surface roots from T1, which I observed growing under the fence into the applicant's property, are exposed above the soil surface and they have clearly penetrated under the applicant's small concrete slab and caused uplift. This has resulted in water on the slab draining towards the house, rather than flowing away as intended. Roots have also prised pavers out of alignment.
7. As a consequence, the requirements of s 10(2)(a) are met, and thus s 10 is engaged.
8. The applicant is somewhat elderly and safe access along the side path is required generally, and specifically for the movement of bins. Some of T1's exposed roots are relatively large and pronounced above the surface and they present an obvious trip hazard. In this site context, I am thus also satisfied that T1's exposed roots represent a risk to safety, and this shall be remedied.
9. Though T1 has been removed and its roots extensively ground, it is still alive, as green active tissue was exposed upon scraping the root surface. This is a common characteristic of Oleanders, which are often maintained with intermittent heavy pruning in close proximity to their stem/crown base, after which they normally actively re-shoot from multiple stems.
10. It will thus be necessary for the roots from T1 in the applicant's property to be poisoned before they are removed. About 3 weeks after this poisoning, the roots should be removed. Presuming the fence in this area is initially removed, stump grinding may be appropriate near the stump and the path, but manual removal with small hand tools is required on the house side where roots meet structures, to reduce the likelihood of further damage.
11. Similarly, though the residual grindings suggest that the large stump was extensively ground, regrowth from the base is still likely, so orders made will include ongoing poisoning of regrowth until T1 is dead.
12. Branches from T3, which are rubbing on the top of the fence, may be pruned with minimal impact to the tree, which has an attractive vase shaped form, and otherwise poses negligible likelihood of damage or injury. The applicant acknowledged the attractive flowers produced by the tree in late summer, and readily conceded that residual branch overhang after the required pruning is not likely to present problems.
13. With respect to Ms Gardiner's claim 7, to prevent future damage and/or injury to any person resulting from all the respondent's trees growing along the boundary, the only possible issue arose from an apricot tree, which overhung the applicant's garage. While some minor abrasion was apparent, I was not satisfied that this tree was currently causing damage, nor that it was likely to cause damage in the near future. Based on the judgment in Yang v Scerri [2007] NSWLEC 592, the near future, as a rule of thumb, is considered to be a period of 12 months.
14. With s 10 satisfied with respect to damage or injury, I am required to consider relevant discretionary matters in s 12 of the Act. 1. T1 has a large root crown base which has grown into close proximity with the common boundary. T3 is a small-medium sized tree sufficiently clear of the boundary to pose negligible problems once minor pruning is completed (s 12 (a)). 2. In the absence of s 6(3), interference with T3 may require consent under the Environmental Planning and Assessment Act 1979 (s 12 (b)), as administered by the local council. 3. Pruning T3 to remove fence abrasion will be unlikely to stress the tree as this species is hardy, and only minor pruning is required to prevent damage in the medium term (s 12 (b2)). 4. T3 provides aesthetic and amenity benefit to both parties, and it may contribute to privacy and shading from the sun. It would, however, provide minimal benefit to the local ecosystem and biodiversity, the natural landscape of the locality, public amenity, soil stability, or to the water table, and it is not of historical, cultural, social or scientific value (subss 12 (b3), (c), (d), (e), (f) and (g)). In any case, the pruning to be ordered will not compromise the environmental services that T3 provides.

Conclusion

1. I have examined the trees and the site and have reached the following conclusions: 1. Though T1 has been removed, exposed surface roots extending into the applicant's property have caused damage to a concrete slab and have dislodged pavers. This provides a clear causal link between the tree roots and the structural damage which satisfies s 10 of the Act. 2. In the context of this case, I am also satisfied that these roots represent a risk to safety, which can be mitigated by root removal. 3. While the above ground parts of T1 have recently been removed from the respondent's property, the roots are still alive and without intervention are likely to continue to grow. Regrowth from the stem base in the respondent's property is also likely, and thus ongoing monitoring and poisoning will be ordered. 4. Orders will be made for replacement of the fence panels damaged by the respondent's stump grinders, and the removal of panels and rails that this requires should provide access to allow all roots growing into the applicant's property to be separated from the root/ crown base. 5. Ms Gardiner withdrew claims with respect to T2 from her application. 6. Though branches from T3 are rubbing on the top of the shared boundary fence, I am not satisfied that T3 has caused fence damage, but damage in the near future is sufficiently probable to justify minor pruning required to remedy the situation. 7. Environmental services that T3 provides, discussed in consideration of s 12 of the Act, will not be compromised by the required pruning on T3. 8. The applicant claimed orders for Court filing fees, and reimbursement of other costs of case preparation. Claims for items such as these require lodgement of a Notice of Motion to the Court, which are heard before the Registrar, or a Judge.

Orders

1. The Court orders that: 1. The application is granted. 2. The respondent, at his expense, shall employ AQF level 3 qualified arborists with all appropriate insurances (arborists), to poison the roots of T1 exposed along the applicant's side path between the house and the shared boundary, and to poison any regrowth from the stump of T1 on the respondent's land. This poisoning shall be completed within 40 days of the date of these orders. 3. The respondent, at his expense, shall employ contractors, with all appropriate insurances, to replace damaged panels of the common boundary colour bond fence near T1, and reassemble the fence in its existing location. These fencing works shall be completed within 90 days of the date of these orders. 4. At least 21 but no more than 35 days after the root poisoning, the respondent, at his expense, shall employ arborists to sever the roots of T1, which are growing under the common boundary fence and into the applicant's property. The roots shall be severed on the respondent's land to a depth of at least 300mm below the soil surface. Any stump grinding refuse arising from the works shall be removed from the site. 5. Within 75 days of the date of these orders, the respondent, at his expense, shall employ arborists to prune about six (6) small branches from T3, being branches rubbing on the top of the common boundary or in closest proximity to the top of the fence, to their branch collars. The work shall comply with AS4373-2007 Pruning of amenity trees. 6. The respondent shall employ contractors, with all appropriate licencing and insurances, to replace the small concrete slab and repair and re-lay pavers uplifted by roots of T1. The respondent shall pay the contractor upon completion of the works. 7. Each party may get up to two quotes for the works in order 7. If the parties fail to reach agreement on choice of contractor, the cheapest quote shall be used, provided the chosen contractor holds appropriate licencing and insurances. Should Ms Gardiner choose to employ a contractor whose cost is greater than the cost of the cheapest contractor, then Ms Gardiner shall reimburse the respondent the difference in cost between the chosen contractor and the cheapest contractor's price, within 7 days after receipt of a paid invoice for the works from the respondent. 8. The respondent, at his expense, shall employ arborists to perform an inspection of T1, between 170 and 190 days after the poisoning works in Order (2). Any identified Oleander regrowth from T1 shall be poisoned. 9. All tree works shall comply with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work 2016. 10. All works are to be completed during normal work hours. Should access be required into the applicant's property to undertake these works, or for removal of refuse, such right to access shall be granted, subject to 48 hours written notice.

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. Decision last updated: 09 August 2022