Hrle and Wollman v Morcom [2018] NSWLEC 1410 | Case summary

Land and Environment Court (NSW)|2018-03-20

Background

A battle-axe handle might once have been shaped from a single piece of timber, but the narrow handle of a battle-axe property in Balmain contained, until recently, three entire trees. In this inner-city suburb, trees compete for space with heritage buildings, narrow streets, parked cars and power lines. A tree does well to reach maturity.
The three trees grew in a narrow walkway that provides access to the main part of the property owned by Merle and David Morcom ('the respondents'). The trees grew against the dwelling on the neighbouring property, owned by Muris Hrle and Grazyna Wollman ('the applicants'). The applicants' dwelling is sufficiently old that it is, simultaneously, somewhat dilapidated and afforded some protection within a heritage conservation area.
The circumstances developed well before each party purchased their property. The dwelling now owned by the applicants was constructed long ago. The trees subsequently grew alongside their property, either planted or self-sown, the latter being the most likely. An extension, containing the present kitchen, was added to the back of the applicants' dwelling.
On the basis that the trees were damaging their property, the applicants asked the respondents to remove all three trees. The respondents obtained permission from their local council to remove two of the trees, and proceeded to remove one of them. They thought the other two trees were worth retaining, and reasoned that any damage they had caused could be remedied and further damage could be prevented with some engineering solutions.
The applicants, not satisfied that any solutions would adequately protect their dwelling in future, applied to the Court, pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) ('the Trees Act'), seeking orders for the remaining two trees to be removed and compensation of $3,000, being approximately one third of the cost of removing damaged weatherboards and replacing them with new ones.

Hearings

Following preliminary directions hearings, an onsite hearing took place on 20 March 2018. The allotted time was insufficient to deal with the matter. It became clear at the hearing that the orders sought by the applicants did not deal with damage caused by the Jacaranda, nor did they address the presence of asbestos sheeting in the wall next to the Jacaranda. Also, the respondents wished to propose alternative orders. Directions were made for the application to be amended and for the filing of alternative orders.
The applicants subsequently sought leave to obtain further engineering evidence regarding possible options for repairing damage caused by the Jacaranda and preventing any further damage. I heard submissions from both parties on 15 May, and for the following reasons did not grant the applicants leave to file further evidence:

There was sufficient time available within the timeframe of the directions for both parties to undertake necessary investigations.
The applicants controlled the timing of making the application.
The proposed investigations would likely require further investigations and a response from the respondents. This process might be messy, considering the applicants' engineer's mother is ill.
Investigations (possibly on multiple occasions) would be disruptive for the tenant in the applicants' dwelling.
Investigations may or may not have been required depending on the evidence still waiting to be heard, and on my findings. If it were not required, the unnecessary costs of the investigations to both parties should be avoided.
If further investigations are required, they could be ordered at the hearing scheduled for June.

The remaining evidence and submissions were heard in Court on 15 June 2018. The applicants' amended application sought, in addition to the removal of the two trees and compensation for damage caused by Tree 2, compensation for damage caused by Tree 3, the amount of which is to be determined by further investigation. The respondents' alternative orders proposed: removing Tree 2; carrying out, at their expense, works to the applicants' dwelling to prevent further damage being caused by Tree 3; and compensating the applicants for part of the cost of removing any material as necessary, including asbestos, with the amount to be agreed by the parties.

Framework of the Trees Act

If I am satisfied, for each tree, that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants' property (s 10(2) of the Trees Act), I have jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12. The orders may be different to those the applicants seek.
Tree 1 has been removed; Tree 2 and Tree 3 remain. No submissions were made regarding damage caused by Tree 1, so no orders can be made for removing its stump or compensating for damage it might have caused. Therefore the jurisdictional questions are:

Has Tree 2 caused damage to the applicants' dwelling, or is it likely to do so in the near future?
Has Tree 3 caused damage to the applicants' dwelling, or is it likely to do so in the near future?

If these questions are answered in the positive, after considering matters s 12 of the Trees Act, I must determine: whether each tree needs to be removed; whether orders are required to repair damage; whether orders are required to prevent further damage; and how the costs of any works should be apportioned.

Evidence

Arboricultural evidence was provided by Guy Paroissien of Landscape Matrix for the applicants and Peter Castor of Tree Wise Men for the respondents.
Engineering evidence was provided by Simon Fagg, Shirley Consulting Engineers, and John Fisher, John Fisher Consulting Engineers, for the applicants, and Peter Talevski, of Engineering Sydney, for the respondents.
The two arborists gave concurrent evidence at the March hearing; the three engineers gave concurrent evidence at both the March onsite hearing and the June hearing in Court.
The applicants also filed a quote and statement from Till Vial of Carpandtree Constructions.

Locations of the relevant features

The excerpt from the survey plan copied below shows the trees in the respondents' access way next to the applicants' dwelling. The Jacaranda (Tree 3) is to the left and the Box Elder (Tree 2) is to the right. The stump of the Box Elder that was removed (Tree 1) can be seen further to the right.

The trees

The Box Elder (Tree 2) is approximately 10 metres tall with a stem diameter of approximately 400 mm. Mr Castor described this tree as being in poor condition. The tree's root buttress grows against the base plate of the dwelling's structure. The wall adjacent to the tree is brick for the lower part, with weatherboards above.
The Jacaranda is approximately 14 metres tall and in good health. Its stem diameter is approximately 500 mm. Mr Castor described the tree as being approximately 70% mature, meaning it has reached 70% of its potential size. This tree's root buttress grows against the base of the wall structure of the applicants' kitchen. Here the wall is fibro or asbestos sheeting. A section of sheeting next to the base of the tree is broken.

Does each tree meet the jurisdictional test?

With regard to Tree 2, I am more convinced by the evidence of Mr Fisher and Mr Fagg than that of Mr Talevski. The deflection in the dwelling's bottom plate is most pronounced where it is against the base of the tree. According to Mr Fagg's measurements the deflection is up to 25 mm. Inside the house, the skirting board is displaced directly in line with the tree's stem. The pattern of cracking in the wall and the upward bowing of the window sill are consistent with the wall being pushed up at the location where the tree's base is against the structure. Although the dwelling generally, including this wall, is dilapidated and damaged by age, deterioration, weather and movement, I accept that this particular element of the damage is caused by Tree 2. I can therefore make orders regarding this tree and the damage it has caused.
Regarding Tree 3, I again prefer the evidence of Mr Fisher and Mr Fagg to that of Mr Talevski. Mr Talevski has overlooked obvious cracks in the kitchen wall and displacement of joinery and windows. The variation in floor levels and the angle of the kitchen bench are consistent with the corner of the kitchen adjacent to the Jacaranda being pushed upward. Measurements showed the floor level increased toward the tree by approximately 50 mm over a 2-metre section. Misalignment of kitchen drawers and cupboards is also consistent with the corner of the kitchen being lifted. Orders can be made for Tree 3 and the damage it has caused.

S 12 matters

Both trees grow in the respondents' narrow battle axe handle, immediately adjacent to the applicants' dwelling. The survey plan excerpt included above shows a small gap between the dwelling and each tree's stem. This is somewhat misleading, a likely result of the height at which the surveyor has collected positional data. The survey appears to show positions of most features at the height of the survey equipment, which generally sits atop a tripod. Had the trees' stems been surveyed at ground level, the survey plan would show them encroaching slightly across the boundary (but still principally on the respondents' land). It was clear to all at the onsite hearing that the base of each stem, where the root buttress flares out, spreads beneath the applicants' dwelling and pushes against its structure. Planting trees in this location would not be recommended. It is likely that both trees grew without being planted, as both species propagate easily from fallen seeds.
Pruning or removing the trees would require consent from Inner West Council, which gave consent for removing Tree 1 (already removed) and Tree 2, but not for removing Tree 3. At the time of Council's determination, evidence of damage caused by Tree 3 was not available. Any such determination must consider the heritage listing of the neighbourhood. The trees are not native species and would not require a permit under other legislation.
Pruning the trees would not address the issues at hand. Tree 3 has recovered from past lopping and now has reasonable form.
The respondents, who say they are now spend most of their time at home, pointed out from their property the value of the trees, in particular the Jacaranda. The trees provide shade and amenity. The Jacaranda forms a significant part of their outlook.
The trees have no particular historical, cultural, social or scientific value.
Although not native, the trees contribute to the urban ecosystem and attract birds and other fauna.
Both trees contribute to the scenic value of the neighbourhood. The neighbourhood's heritage listing (Conservation Area 17 - Balmain) identifies trees as an important part of the landscape: tree retention is encouraged and tree removal is to be avoided where possible.
Both trees contribute to neighbourhood amenity. Although they are set back from the street, their canopies rise above the applicants' dwelling.
Removal of the trees would have little impact on soil stability, the water table or other natural features of the land.
The condition of the applicants' dwelling could be fairly described as somewhat rundown. An earlier building report suggested that if significant works were not carried out in the near future, the dwelling would need to be demolished. Apparently the only major work that has been carried out since then is replacement of roofing, which has not addressed structural issues. I accept the respondents' submissions that the house is dilapidated. Although I find that both trees have damaged sections of the dwelling, the entire building needs works that would inevitably include the repair of those sections. This seems necessary despite the additional damage caused by the trees.
The applicants have requested that the trees be removed. They would be unwise to undertake other repairs until the trees are removed, or until they are confident that an engineering solution will prevent further damage. I accept the respondents' suggestion that the house is dilapidated, but the applicants require some certainty regarding the trees before committing to works. So, despite the applicants' apparent lack of any further action to prevent damage, I find they have done what they can in requesting tree removal and then filing their application. This has required some financial commitment in engaging arboricultural and engineering experts.
The respondents have taken only limited preventative action since being informed of the damage. They removed Tree 1 but not Tree 2, despite receiving permission to do so. They have engaged an engineer who has worked hard to find other causes of damage while overlooking what seem to be obvious signs of damage caused by the trees.
Previous owners of the applicants' dwelling perhaps contributed to the issue by extending the dwelling next to Tree 3. The respondents submit that the angle of the wall, away from the boundary where it passes the tree, demonstrates the tree was present when they added this wall. The applicants say the addition was constructed in 1958 and the tree is only 40-50 years old, so the building predates the tree. I accept the tree might have existed when the dwelling was extended. Locating the extension further from the tree may have been possible. Alternatively, the design and construction of the addition could have considered the tree's future growth. This might have prevented damage. The situation would have been apparent to the applicants when they purchased their property. Preventing future damage is a separate matter.
Both parties have benefited from the trees. I appreciate the respondents' reluctance to remove a mature and attractive tree that has taken many years to reach this size in the physically limiting circumstances in which it grows.

Does Tree 2 require removal?

I take it from their proposed alternative orders that the respondents now concede that Tree 2 should be removed. The tree is in relatively poor condition. To prevent further damage to the dwelling, a section of the brick wall adjacent to the tree would need to be bridged above the tree's root buttress. The engineering evidence is that this is possible, but it would come at a greater cost than can be justified for a tree with a short useful life expectancy. I will order the removal of Tree 2.

Should the respondents contribute to costs of repairing Tree 2's damage?

The damage caused by Tree 2 includes some displacement of structural elements, bowing of an internal window sill, some internal cracking, and damage to some external weatherboards. This might be considered severe in other circumstances, but in the context of the dwelling's overall condition it is relatively minor. In my view, all of these elements would require repair in the near future regardless of the trees. The damage caused by the tree should not be a reason to shift any of the applicants' upcoming maintenance or repair costs to the respondents.

Does Tree 3 require removal?

I have given greater consideration to the possible retention of Tree 3. It is a tree of value to the respondents. Nevertheless, I see no reasonable alternative to ordering its removal. Its root buttress grows beneath and against the applicants' dwelling. Significant and expensive changes would be required to the applicants' dwelling to allow the tree's retention while preventing damage in the long term. Mr Talevski's estimation of what might be required omitted likely requirements pointed out by Mr Fisher and Mr Fagg. Structural changes required to provide clearance between the dwelling and the tree, and to allow for future tree growth, would be significant and would not necessarily fix the existing damage.
It may have been reasonable to design the dwelling around the tree when it was constructed, but it would now be extremely challenging to carry out the works necessary to ensure the ongoing integrity of the dwelling with the tree being retained. Removal of Tree 3 will be ordered.

Should the respondents contribute to costs of repairing Tree 3's damage?

The reasons I gave above for not ordering any compensation for damage caused by Tree 2 also apply here, albeit perhaps to a lesser extent. The corner of the kitchen has been lifted significantly by the Jacaranda. Like the rest of the house, the kitchen requires major work, however some additional work may result from the effects of the tree. Despite this, I found earlier at [33] that previous owners of the applicants' property might have contributed to the present situation by building next to an existing tree. The principle established in Black v Johnson (No 2) [2007] NSWLEC 513 is relevant here - whether a tree was present when a building was constructed should be a consideration in apportioning costs. This situation was apparent at the time the applicants purchased their property.
When the respondents applied for permission from their local council to remove all three trees, they were only permitted to remove Tree 1 and Tree 2. It is difficult to see how they could have done anything to prevent any further damage that has been caused by Tree 3 in the time between being notified of any issue and being served with the tree dispute application.
For these reasons the respondents shall not bear any of the costs of repairing damage caused by Tree 3.

Other matters

The respondents shall pay the cost of removing the trees. The applicants shall be responsible for any works they choose to undertake to their dwelling. It seems inevitable that works to remove the Jacaranda will disturb the external sheeting material on the applicant's dwelling. If this is asbestos, it must be handled according to regulations, and is the responsibility of the applicants.
Because the removal of both trees will be ordered, consideration need not be given to the means for preventing further damage in future.

Orders

As a result of the foregoing, the orders of the Court are: 1. Within 30 days of the date of these orders the applicants are to engage a suitably experienced contractor, with all licences required to carry out this work, to remove all asbestos sheeting within 2 metres of any part of the Jacaranda (Tree 3), in accordance with all statutory requirements for handling and disposing of asbestos. 2. The applicants are to give the respondents at least 7 days' notice of these works. 3. The respondents are to allow any property access required for the works in (1) during reasonable hours of the day. 4. Within 60 days of the date of these orders, and after the works in (1) are completed, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3 in Arboriculture), with all appropriate insurances, to remove the Box Elder (Tree 2) and the Jacaranda (Tree 3). The works are to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 5. Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably experienced contractor, with all appropriate insurances, to grind the stumps of both Tree 2 and Tree 3 to approximately 20 cm below ground level. 6. The respondents are to give the applicants at least 7 days' notice of the works in (4) and (5). 7. The applicants are to allow any property access required for the works in (4) and (5) during reasonable hours of the day. 8. The exhibits are returned.

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: 08 August 2018

Hrle and Wollman v Morcom

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