Giliberti v Galluzzo

Land and Environment Court (NSW)|2016-10-24

Background

In a residential area of Ryde, Mr and Mrs Giliberti have lived in their dwelling since October 2013, after purchasing the property 12 months earlier. At that time, as it does now, a mature fig tree stood on a neighbouring property near the common boundary, along with other trees and vegetation.
Mr Giliberti uses a walking stick due to his physical abilities. Mrs Giliberti ('the applicant') claims roots of the neighbouring fig tree are lifting pavers in the outdoor living area between their dwelling and the common boundary. She also claims fig tree roots are damaging the retaining wall near the boundary. She says further damage will occur if the tree is not removed.
Pursuant to the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') Mrs Giliberti has applied to the Court seeking orders for the tree to be removed and for the recovery of her costs in making the application.

The hearing

The hearing took place onsite to allow observations of the tree and any damage. Mr Avery-Williams, Counsel, represented Mrs Giliberti. Mrs Galluzzo ('the respondent') was represented by Mr Cavaleri, her husband, and Mr Jackson, an agent.
At the outset, the applicant objected to the respondent's engineer's report being relied upon by the Court, as it was served and filed two weeks after the date directed at the directions hearing. The respondent argued that he had received the applicant's evidence two days late, resulting in his need for further time to gather expert opinion.
Mr Avery-Williams further asserted that the applicant had requested that the respondent's engineer, Mr Murdocca, be available for questioning at the hearing, but Mr Murdocca did not attend. He says that, as the engineer's opinions cannot be questioned, the report provides no assistance to the Court.
The respondent went to some effort to obtain the engineer's report. Had it been served in a more timely manner, there is no suggestion from the applicant that she would have a more detailed response to the report. The findings of the report are not definitive - Mr Murdocca concluded neither that the tree caused or didn't cause damage. The Court accepts Mr Murdocca's report but, due to its limited findings and conclusions, I find that is of little assistance to the Court.

The situation

The tree subject to this application is a Hill's Weeping Fig (Ficus macrocarpa var. hillii) approximately 10 metres tall. Its stem diameter of approximately 900 mm indicates it has grown here for several decades. Near its base the tree's stem is only a metre or so from the fence on the parties' common boundary. Buttress roots, typical for the species, are above the soil surface 200 - 500 mm from the fence and can be seen to grow toward and beneath the fence. Other smaller trees including Lilly Pillies grow on the respondent's property near the boundary fence.

Debris and pipes

The application included a claim that excessive debris falls from the tree onto the applicant's property. Also claimed is that roots, possibly from the tree or from its seedlings, grew into and blocked pipes. A plumber has visited the property to unblock pipes.
At the hearing, Mr Avery-Williams clarified that the applicant was not pressing the issue of debris, as there were other more important issues to deal with. As for the issue of roots in a pipe, the applicant presented no evidence that would satisfy the Court that roots were of the fig tree. If roots resulted from fig seedlings growing in the applicant's roof guttering or elsewhere on her property, that could have been prevented through routine maintenance, the reasonable expectation of which is described in the Court's principle set out in Barker v Kyriakides [2007] NSWLEC 292. It follows that this element of the claim does not enliven the Court's jurisdiction.

Retaining wall

The applicant first noticed damage to the retaining wall in either February 2013 or February 2014 (both dates were stated during the hearing).
The retaining wall is of horizontal treated pine logs supported by vertical pine posts. It is approximately 500 mm in height. There is no evidence that is has been properly constructed to retain as much soil as it does, nor that there is any drainage behind the wall. It has been in place for some time and some decay can be seen in sections of pine logs. The top of the wall has been displaced, pushed away from the common boundary. The applicant contends that this is due to roots of the tree. No evidence was adduced to support this, apart from the mere presence of a tree root in one area of the garden bed, but this was not shown specifically to be causing any damage.
On my observations it appears more likely that the structural strength of the wall is insufficient to support this volume of soil. Even if this is not the case, I cannot be satisfied, based on the evidence provided, that tree roots have damaged the wall. Therefore this element of the application does not satisfy the jurisdictional test as s 10(2) of the Trees Act.

Paving: damage enlivens the Court's jurisdiction

The applicant's dwelling is approximately five metres from the boundary fence. Apart from a narrow garden bed along the boundary, the area between the applicant's dwelling and the boundary fence is a paved porch area covered by a fixed awning. According to the applicant, she noticed in 2015 that two areas of paving had become uneven. When the pavers were lifted and soil removed, tree roots were found beneath. This process was repeated during the onsite hearing.
At the first location a root approximately 200 mm in diameter was observed in the soil beneath the pavers. At the second location, about 1 metre from the dwelling, a smaller root, approximately 100 mm diameter, was observed approximately 160 mm below the top of paving.
The applicant contends that these roots are growing in the paving bedding, causing the pavers to lift as they grow in girth, and that further damage is likely.
For the respondent, Mr Cavaleri argues that the roots are growing at least partly in clay soil rather than bedding material. He says that clay soils are reactive and therefore the lifting is just as likely due to swelling of the clay rather than root growth.
While it is perhaps possible that soil properties have contributed partially to pavers being lifted, I find it most likely that roots are the principal cause for the following reasons.
Considering that reactive clay is present beneath the entire area of paving, and that paving is generally level apart from the two sites of investigation, I cannot accept the respondent's reasoning that clay is the principal cause of damage. Roots of a size sufficient to cause lifting were found directly beneath both sites of lifted paving. The clay beneath these roots is compacted, and would be difficult to displace with root growth. The paving immediately above the roots, on the other hand, is not on a mortar base nor is there mortar in between pavers. As roots grow in girth, they are therefore more likely to push pavers above them upwards rather than displace clay downwards beneath them. The roots are of an equal or greater diameter than the height of lifting experienced by the pavers.
I am satisfied by the evidence before me that the exposed roots have caused the paving to lift. Relying on my own arboricultural expertise and experience, I am also satisfied that the roots observed are roots of the fig tree, not the nearby trees of other species. Even if other causes such as soil type have contributed to the damage, I need only be satisfied that the tree is a cause of damage for this element of the application to meet the jurisdictional test at s 10(2)(a). Therefore, I may make orders on this basis to remedy the damage and to prevent further damage.

Are orders required?

Paving levels are disrupted to the degree that they may make it difficult for Mr Giliberti to use the covered porch. Repairing the paving will require removal of at least the roots beneath the two raised areas of paving. Preventing further damage in the foreseeable future requires prevention of further root growth beneath the pavers, either by their removal or at least severance and separation from the fig tree. The applicant contends that only removal of the tree will guarantee no further damage occurs.
The respondent argues that the tree was present when the Gilibertis purchased their property, so they purchased with a full understanding of the situation and likely consequences. There is no evidence before me that, at the time they purchased, there existed any damage to the applicant's property due to the tree.
The applicants constructed much of the porch area after they purchased the property. That there was a tree close by, and that it was a mature fig tree, are factors they may have wished to consider at the time. For instance, it might have been an opportunity to install a root barrier to prevent root damage. The respondent suggests that this is a reason not to make orders. However, if the situation requires orders, the pre-existence of the tree would not change that. As explained by Moore C and Thyer AC in Black v Johnson (No 2) [2007] NSWLEC 513, the fact that a tree existed at the time a structure was built may be relevant in determining the apportionment of costs to carry out works, although the works are still necessary to remedy existing damage or prevent further damage.

Nature of the orders

Trees provide benefits to the environment and to communities, and many environmental and human influences affect their growth. The Trees Act sets out at s 12 a range of matters the Court must consider when making orders.
This fig is a mature tree with a healthy crown. Although an Australian native species, it is not locally indigenous and not part of the original ecosystem here. Nevertheless, it contributes environmental values: carbon sequestration, reduction of rainfall run-off, shading, cooling and reduction in summer energy requirements, and it provides habitat for birds and other fauna. As Preston CJ discussed at (277) in Robson v Leischke [2008] NSWLEC 152, benefits can extend to the applicant as well as the respondent, and to the broader community.
In Robson, a tree had fallen. His Honour had to determine a matter of compensation. Here the tree is standing and further damage may occur. The nature of orders must consider not only repairs of existing damage but works to prevent further damage, and the apportionment of the costs of those works.
As the tree contributes considerable benefits, I find it should be retained if orders can reasonably address the problems it causes.
The applicants obtained a report from consulting arborist Ms Catriona Mackenzie. In her conclusions she states: 33. A root barrier at the boundary will be costly to install and will not be a reliable, long term solution, although it may reduce root growth into the site for some years. 34. A root barrier is the only practical alternative to tree removal, however, substantial root cutting close to the base of the tree will adversely impact on tree stability and health. I do not believe this is an appropriate treatment for a tree of this size and maturity.
I accept that a root barrier is a 'practical alternative' to tree removal. However I do not accept that a root barrier would need to be installed along the boundary. I find that, if indeed a root barrier is to be installed, it could be installed along the edge of the paving near the base of the retaining wall. As I have found earlier in this judgment, there is no evidence that roots are causing or are likely in the near future to cause damage to the retaining wall. It seems most likely that the wall's current condition is due to the nature of its construction, its age, and its inadequacy for its purpose. No opinion was proffered at the hearing regarding the placement of a root barrier further from the tree, but based on my own experience I do not think this would increase the risk of the fig tree failing due to instability.
The tree was there when the Gilibertis purchased and made changes to their property. Accordingly, as per Black v Johnson (No 2), this is relevant in apportioning costs of any works, but Moore C and Thyer AC also stated the need to consider other factors, such as whether the tree species is appropriate, and the location of its planting, along with whether the applicants had suitable alternatives for locating their structures.
Hill's Weeping Fig is known to grow to a large size with a vigorous root system. It is perhaps not an ideal choice for planting close to dwellings in suburbia. Nevertheless it was there when the Gilibertis constructed and there were options available to them to prevent it damaging their paving. Without a tangible formula, I find it reasonable to apportion the cost of repairing damage and preventing further damage in the near future equally between the neighbouring parties. This can be achieved by lifting pavers in the two damaged areas, removing roots directly beneath, and relaying the pavers, as well as by cutting all roots along the edge of the pavers near the base of the retaining wall. In the absence of evidence to the contrary, it is likely that most roots are in the upper 600 mm of soil.
Those works would put the Gilibertis in the same or better position as when they purchased their property and carried out previous paving works. Should they wish to install a root barrier along the edge of the paved area, that is an option for them to take at their own cost, as it was previously. Similarly, any other works that might be advantageous to carry out at the same time, such as improvements to the retaining wall, are to be at their own cost.

Orders

Based on the foregoing, the orders of the Court are: 1. The applicant is to obtain three quotes to carry out the following works: 1. Remove all uneven pavers in the two areas of lifted paving as shown in the Tree Dispute Application (Exhibit A). Cut and remove all woody roots found beneath the lifted pavers. Relay pavers on a bedding layer such that they create an even surface. 2. Remove pavers along or close to the base of the retaining wall (far enough from the wall so that the stability of its footings remains unaffected) within 10 metres of the fig tree. Trench beneath the removed pavers to a depth of 600 mm, cleanly cutting any roots. Backfill trench and compact the fill. Relay pavers on a bedding layer such that they create an even surface. 1. Should it be advantageous to the applicant to carry out other associated works at the same time, those are to be quoted separately. 2. The applicant is to provide the respondent with copies of the three quotes at (1) within 30 days of the date of these orders. 3. The applicant is to select her preferred contractor from the three quotes at (1) and engage the contractor to carry out and complete within 90 days of the date of these orders the works described at (1). 4. After works are completed, the applicant is to provide the respondent with a receipted paid invoice for the works at (1). 5. The respondent is to pay the applicant 50% of the invoice for works at (1) within 7 days of receiving the invoice. 6. If the respondent does not receive a receipted paid invoice within 120 days of the date of these orders, order (6) lapses.

D Galwey Acting Commissioner of the Court

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: 16 March 2017

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