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[2012] NSWLEC 1290
Land and Environment Court (NSW)
2012-10-17
Original judgment source is linked above.
Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicant in this matter has owned her property in Chatswood for the last 14 months. She is seeking orders for the removal of two Monterey Cypress trees, and their stumps, from the respondents' property on the basis that the trees have caused damage to her property and pose a risk of injury to anyone in her backyard. 2The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 3The respondents have only recently purchased their property but were made aware of the application during the purchasing process. The application had been originally been made against the former owner of their property. The Court upheld a Notice of Motion from the applicant to amend the application to delete the former owner as respondent and to involve the new owners. 4The applicant originally sought orders for the repair of the storm water pipe and retaining wall. However, the applicant has since withdrawn that claim. If the order had been pressed, the applicant would have had to join both the former and new owners of the respondent property. In line with the discussion in Thornberry & anor v Packer & anor [2010] NSWLEC 1069 at [5], any claim for rectification of damaged property must be made against the owner of the tree at the time the damage occurred.
The trees 5The trees are two mature Cupressus macrocarpa (Monterey Cypress) trees growing very close to the timber dividing fence between the parties' properties and located towards the rear of the respondents' garden. 6The trees are labelled T1 and T2 on the diagram in the claim form. T2 is to the west of T1 and is larger in diameter than T1; both trees are of a similar height and their canopies overhang a portion of the applicant's back garden but no part of either tree overhangs the roof of the applicant's dwelling. 7As neither party engaged an arborist to inspect and report on the trees, my findings are based on the expertise I bring to the Court, the observations made at the time of the hearing and an assessment of the evidence before me. My assessment of the trees was limited to a visual assessment of their external features. 8Both trees appear to be healthy and retain a normal percentage of internal dead wood. I saw one 'hanging' branch in T2, but in my opinion, given its location and size, it is unlikely to cause damage or injury should it fall. T2 has signs of an old basal cavity but there appears to be substantial growth of new wood around it. 9During the inspection of the trees from the respondents' property I noted a recent excavation near the base of T1. According to the respondents, this is something they had undertaken as the PVC stormwater pipes in the vicinity of the trees had been blocked by roots and soil and required clearing. A new section of pipe was being installed to allow access to the storm water pipes. 10It appears that at some time prior to the applicant moving in, the ceramic storm water pipes at the rear of the respondents' property were replaced with PVC pipes. A linear depression in the ground to the west of the trees suggests that a trench was dug in order to replace the pipes. While this is relatively close to the trees, no evidence was adduced as to what if any root damage may have occurred and if there has been any impact on tree stability. 11According to the applicant, the former owner of the respondent's property was given permission by Willoughby Council to remove T1 in 2007 and again in 2011 however, the tree was not removed. At the hearing, the applicant stated that she may have numbered the trees incorrectly and it was probably T2 that council had approved for removal. 12The respondents do not oppose the removal of the trees.
The damage and potential injury 13The damage the applicant says has been caused by the trees is displacement and splitting of a PVC storm water pipe that runs along the base of the dividing fence along the top of a retaining wall, damage to the retaining wall and associated garden bed, and damage to the dividing fence between the parties' properties. 14In addition, the applicant contends that leaves and other debris from the trees had accumulated on a portion of the roof of the dwelling over the laundry and which had been constantly leaking. According to the application, the applicant's insurer identified the cause of the problem as a significant build up of pine needles blocking the valleys at the junctions of overlapping tiles. The applicant states that the insurance company would not cover the cost of cleaning the valleys and replacing the tiles as they deemed this to be a maintenance issue. The applicant's contention is that this would be unnecessary if the trees were not there, and that unless the trees are removed, this will continue to be a problem. 15The timber dividing fence was repaired and a section replaced in 2011; it was constructed to incorporate T2 into the fence. This new section includes two small pieces of paling that are nailed to the upper portion of the trunk. 16The risk of injury is said to be from falling dead branches and pinecones onto the applicant's backyard and clothesline. At the hearing, the applicant stated that a dead branch about one metre long and about 30 mm in diameter fell from the tree during windy weather; however, nobody was home at the time.
The Court's jurisdiction 17In applications made under s 7 Part 2 of the Act, the key jurisdictional test is s 10(2). This states that the Court must not make an order 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. This must be applied to all trees the subject of the application. 18If the jurisdiction is engaged, the Court must consider what, if any, orders should be made under s 9 to prevent, remedy or restrain damage to property or injury to any person. 19As the applicant is 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; a timeframe I consider appropriate in this matter. 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 and the circumstances of the site apparent at the time of the hearing.
The evidence and findings 20In regards to T1, I am not satisfied on the evidence before me and to the level required by s 10(2), that this tree has caused, is causing, or could in the near future cause, damage to the applicant's property or injury to any person. 21However, if I am wrong in this, as a matter of discretion afforded by s 9, I am not minded to make the orders sought by the applicant on the basis that the alleged damage is very minor to negligible. 22Specifically the damage, said to be caused, to the retaining wall is the cracking of the mortar between several pieces of vertically arranged sandstone 'bush rock' slabs at the edge of a retained garden bed about a metre away from the tree. In regards to the fence, there may be a very minor displacement, however, I did not see any direct contact between T1 and the fence. 23Even if there is some influence of tree roots on the sandstone edge of the garden bed, I note that the wall is not an engineered retaining wall but rather a style of landscaping popular many decades ago [I note that the applicant's dwelling was built in 1958]. It is not unreasonable to assume that soil and water movement over time could have placed pressure on the wall; similarly, works on the respondents' property adjacent to that section of wall may have had some influence. 24The damage, if indeed the tree has contributed to it, is so minimal as to not warrant an order of the Court. Removal of the tree would be a very disproportionate response to the extent of the alleged damage. 25With respect to the issue of leaves on the roof, the applicant was given leave to submit additional photographic evidence of, amongst other things, the condition the roof. 26Several of the photographs taken in June this year show debris between the tiles. The roof at the rear of the applicant's dwelling is part tile and part metal - the metal component being over a more recent addition. The tiles are likely to be the originals. The leak occurred in the area between the newer and older sections of the roof. 27My assessment of the photographs is that the debris between the tiles is likely to have been there for some considerable time prior to the applicant's purchase of her property. While the applicant stated that the gutters of the house are regularly cleaned, they had not undertaken any cleaning of valleys prior to the leak, as they were unaware that this would be a problem. 28While some water damage may have occurred to the laundry ceiling, and the insurer identified the cause as a build up of debris, the insurance company also indicated that this was a maintenance issue. Even if I were satisfied that there was a nexus between the tree/s and the damage, as a matter of discretion I am not minded to make the orders the applicant seeks. 29Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. 30There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter. While the applicant contends that the leaf material is very fine and the cleaning of the valleys requires removal and replacement of tiles, I am not satisfied that these are circumstances that warrant a departure from this Principle. The applicant is now aware of the specific maintenance requirements of that particular form of roof. 31Therefore the application to remove T1 is dismissed on the basis of damage to property. 32In regards to the potential risk of injury arising from falling fruit and dead branches from the overhanging parts of the canopies of the trees, the fruit is quite small and unlikely to cause injury. I saw no substantial dead wood or any structurally unsound branches that are likely to cause injury to anyone. As noted before, the hanging branch in T2 is in a position, that should it fall, it is unlikely to cause injury to anyone on either property. 33Therefore, the application to remove the trees on the basis of injury is dismissed. 34With respect to T2 and the damage to the 'retaining wall' and the storm water pipe, the applicant contends that the retaining wall at the base of T2 became clearly unstable and stones were dislodged in May this year after some heavy rain. At that time the water pipe was found to be dislodged and leaking. 35I am satisfied on the evidence that T2 has contributed to the damage to the applicant's property, thus satisfying s 10(2), and engaging the Court's jurisdiction. However, in determining what orders are appropriate, I must consider a number of matters in s 12 of the Act. 36In my view, of most relevance are factors other than the tree that may have contributed to the damage (s 12(h)(i)). In this regard, the nature of the 'retaining wall' is that it is an arrangement of loosely stacked sandstone rocks; it is not an engineered wall. It supports a depth of soil of at least 800mm and it is located immediately adjacent to the base of the tree. 37While there is likely to be some impact of root pressure on the rocks, there is also likely to have been soil and water movement over time, and especially after heavy rainfall. The displacement may have been exacerbated by the leaking of the storm water pipe, which in turn, may have been cracked at the join by a combination of root, soil and water pressure. 38The minor displacement of two small pieces of paling nailed to the trunk has not made the fence dysfunctional. 39Given the relatively minor nature of the damage and the nature, location and condition of the wall, I consider they do not warrant an order of the Court, particularly an order to remove the tree (and subsequent restoration of the fence). 40While I note that both parties agree that the trees should be removed, on the evidence before me, this is not something with which the Court can concur. This does not prevent the respondents from making an application under Willoughby Council's Tree Preservation Order. 41Similarly, for the applicant, as discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can 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.
Orders 42Therefore, as a consequence of the evidence before me, the Orders of the Court are: (1)The application is dismissed.
J Fakes 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: 17 October 2012
Hadfield
Strano & anor