Hansen v Hetherington

CASES CITED: Gan v Anderson & anor [2008] NSWLEC 1257 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280

APPLICANT Ms M-L Taylor (Solicitor) of Bartier Perry LEGAL REPRESENTATIVES:

RESPONDENT Mr M McMahon (Solicitor) of M E McMahon & Associates

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 COMMISSIONERS: There are 16 trees (the trees) on the southern side of 32 Kedumba Crescent, North Turramurra (the property) generally within a metre or two of the common boundary with the adjoining property to the south.

2 Ms Hetherington is the owner of the property. She is represented at the hearing by a solicitor, Mrs Taylor. Ms Hetherington has provided a bushfire assessment report by Mr Travers dated 28 May 2009, and an arboricultural report by Mr Castor dated May 2009. Mr Castor attended the hearing.

3 Mr and Mrs Hansen live at 34 Kedumba Crescent, North Turramurra, the adjoining land (the land) to the south. They make an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify and prevent property damage to their driveway, shed and power line, to prevent injury to people and compensation for proposed repair of the driveway.

4 They seek orders for removal of damaging and dangerous trees, substantial pruning of other trees to reduce bushfire risk and future damage, compensation and costs.

5 They are represented at the hearing by a solicitor, Mr McMahon. They have provided an arboricultural statement by Mr Bolans. Mr Bolans attended the hearing.

6 On the basis that the application has proceeded beyond the directions hearing to this on-site hearing, we are satisfied that: o The applicants have made reasonable effort to reach agreement with the respondent in accordance with s 10(1)(a); o The applicants have given notice to the parties in accordance with s 8; o The trees are on certain land in accordance with s 4(1), and not on land to which the Act does not apply s 4(2); o The applicants are owners / occupiers of the land in accordance with s 3(1) and s 7 of the Act.

7 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property on the land? Is the tree now causing damage to the applicant's property on the land? Is the tree likely in the near future to cause damage to the applicant's property on the land? Is the tree likely to cause injury to any person?

8 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders?

9 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

The trees 10 Most of the trees are large Cypress trees. They are all trees within the meaning of that term in s 3(1) of the Act. The trees are identified by number as shown in the arboriculture report by Mr Castor, and are located sequentially with Tree 1 closest to Kedumba Crescent and Tree 16 closest to the rear boundary of 32 Kedumba Crescent.

11 Having observed the dividing fence, and with no statement from the parties that the fence is not on the common boundary, we find that the trees are situated wholly on the property, meeting s 4(3) and s 7 of the Act.

12 As a consequence there is an application that the Court may determine.

13 At the hearing, we were advised, and we observed that Trees 14 and 16 have been removed by Ms Hetherington and that those trees had not caused damage to the Hansens' property on the land. The Hansens advised that Trees 6, 8, 11, 12, 13, and 15 have not caused and are not causing, damage to their property on the land. The arborists agree that those trees are not likely in the near future to cause damage to the property or injury to any person. On that basis we find that those trees do not meet any of the tests in s 10(2)(a) or s 10(2)(b) of the Act and we cannot make orders regarding them.

14 Tree 1, a Pinus species is growing close to the insulated overhead power supply wires to the Hansens' home. We find this tree is likely to damage that cable in the near future, meeting the third test in s 10(2)(a) of the Act.

15 We find that Trees 2, 3, and 5 are likely to have caused and be causing damage to the Hansens' driveway, and are likely to cause further damage to the driveway in the near future, meeting the tests in s 10(2)(a) of the Act. The crowns of these trees also appear to have damage or structural faults that may cause injury to a person, meeting the test in s 10(2)(b) of the Act.

16 We are advised that a falling branch from Tree 4 damaged the Hansens' telephone and power lines about two years ago, meeting the first test in s 10(2)(a) of the Act. We observed that the crown of this tree appears to have damage and structural faults that may cause injury to a person, meeting the test in s 10(2)(b) of the Act.

17 We are advised that a falling branch from Tree 7 damaged the Hansens' shed in 2006, meeting the first test in s 10(2)(a) of the Act. We observed that the crown of this tree appears to have damage and structural faults that may cause injury to a person, meeting the test in s 10(2)(b) of the Act.

18 We are advised that a falling branch from Tree 9 damaged the Hansens' shed recently, meeting the first test in s 10(2)(a) of the Act. We were shown a large branch of this tree that overhangs the Hansens' land and has poor connection due to partial bark inclusion. We find that failure of that branch may cause injury to a person, meeting the test in s 10(2)(b) of the Act.

19 We observed that the crown of Tree 10 appears to have damage and structural faults that may cause injury to a person, meeting the test in s 10(2)(b) of the Act.

20 As a consequence the Court has power to make such orders as it thinks fit in accordance with s 9 of the Act regarding Trees 1, 2, 3, 4, 5, 7, 9 and 10.

s 12 Considerations 21 Addressing the matters in s 12 which the Court is required to consider: (a) The trees are located close to the boundary of the Hansens' land, and overhang that land. (b) Local Council consent would ordinarily be required to interfere with the trees. We do not know if Ms Hetherington has applied for consent to prune or remove any of the trees. (c) We have not been advised that the trees have historical, cultural, social or scientific value. As the trees appear to be common exotic species, were not planted by Mrs Hetherington, and are likely to be less than 40 years old, we find that they do not have any of those values. (d) The trees are likely to make only a small contribution to the local ecosystem, through provision of food, shelter and nesting sites for some species. (e) The trees make some contribution to the natural landscape and scenic value of the property and the locality by providing a large mass of vegetation, but the large size of the trees is out of scale with the adjacent houses and properties, and their type is not complementary to the adjacent national park bushland. (f) The trees contribute to public amenity by providing intrinsic value through oxygen production, carbon sequestration, cooling summer shade, reduction of stormwater runoff, and deflection and dispersal of strong winds. (g) The roots of the trees are likely to help stabilise nearby soil, but are causing damage to the Hansens' driveway and may in time damage retaining walls on Ms Hetherington's property. (h) Damage (i) & (ii) Ms Hetherington says that Mrs Hansen's mother laid the driveway pavers herself in 1992. Mrs Hansen says there was some gravel on the driveway prior to her mother laying the pavers on a sand base. Mr Hansen says that he re-laid the pavers about three years ago. Working with a licensed paving contractor, he lifted the pavers, cut out tree roots to about 50 mm deep, and re-laid the pavers with additional sand where necessary. He says that he was advised not to provide any other base, and did not compact the soil under the bedding sand. We observed some small roots up to about 30 mm diameter in the sand and soil under the paving at the three locations where pavers were lifted for inspection. We consider that the normal specification for such a residential driveway would include at least 100 mm depth of compacted road-base under the bedding sand, and a mortar edge sealing the bedding sand from tree root entry. We find that the under-engineering of the driveway is the major reason why tree roots have caused damage. We also note that the Hansens did not give Ms Hetherington notice of damage to the driveway except in their application to the Court. We also observed that there are some small trees on the Hansens' land immediately adjacent the driveway, and some larger Gum trees further away, all of which may have or may in the future contribute to damage of the driveway. For these reasons we do not find that Ms Hetherington should pay compensation for repair of the Hansens' driveway, or pay for any works to prune or control tree roots growing under or near the Hansens' driveway.

(i) (a) Mr McMahon asked us to award compensation to the Hansens for driveway repair on a similar basis to the findings in Gan v Anderson & anor [2008] NSWLEC 1257. We have considered that case, and find similarly to paras 31 and 37 of that case, that any compensation should be discounted on the timing, or in the present case, lack of notice of damage. As there is no evidence of damage since notice was given, no compensation is due. Further, we find there is an assumption in Gan v Anderson that the pipes were originally laid to a satisfactory specification, which is quite different to our findings regarding the driveway in the present case. (b) In other matters relevant in the circumstances of the case, we note that Mr Travers' Bushfire Assessment report concluded that the trees are not a fire risk to the Hansens' land. We also note that the Hansens have a dead tree, and dead wood in their own trees which are near Ms Hetherington's trees.

Access to light 22 We note that the Hansens' application originally included overshadowing by the trees, and at the hearing they still held that concern. Preston CJ discussed access to light and views in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 [para 173]. His Honour states:

Obstruction of a view from land or of access to light on land by a tree situated on adjoining land does not constitute "damage to property on the land". 23 Therefore the mere presence of shade from the tree does not meet the tests in s 10(2)(a) of the Act. Further, regarding situations of a tree obstructing a view or access to light, his Honour states:

Although the New South Wales Law Reform Commission recommended that the new statutory scheme should address such concerns, the legislature expressly declined to do so, as the second reading speech and Parliamentary Debates plainly state. Costs 24 The Respondent sought an alternate order for costs, but Commissioners do not have the power to order payment of legal costs, costs of expert reports, application fees to the Court and other expenses (including personal expenses). Where a Commissioner has heard and determined a tree application, any party seeking an order for costs of the proceedings must apply for costs by notice of motion filed within 28 days of the final orders in the proceedings.

Orders 25 The Court makes the following Orders that apply to the respondent's property at 32 Kedumba Crescent, North Turramurra: 1. The application is upheld in part; 2. The above ground parts of Tree 4 shall be removed; 3. Tree 1 shall be pruned 0.5 m clear of the adjacent insulated power cables; 4. Tree 9 shall be pruned to remove the large limb that overhangs the applicants' shed; 5. The work described in Orders 2, 3 and 4 above shall be completed at the respondent's cost, within six weeks of the date of these orders; 6. The work described in Orders 2, 3 and 4 above shall be done by an AQF Level 3 arborist who has suitable insurances, and the work shall be done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998) ; 7. Trees 2, 3, 5, 7, 9 and 10 shall be subject of an aerial inspection and report by an AQF Level 5 arborist, at the respondent's cost; 8. The respondent shall give a copy of the report described in Order 7 above, to the applicants within eight weeks of the date of these orders; 9. The work described in Orders 2, 3, 4 and 7 above shall take place at reasonable times, and on reasonable notice to the applicants, and the applicants shall grant access over their property for the work to be done.

      Annelise Tuor
      Commissioner of the Court

      Peter Thyer
      Acting Commissioner of the Court

The formal orders may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

04/06/2009 - Incorrect reference to applicant seeking costs - Paragraph(s) 3 and 24

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