Jones v Shelley & anor

Land and Environment Court (NSW)|2016-01-15

Judgment

This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning two Ficus benjamina (Weeping Fig) trees located on the respondents' property at Avoca Beach.
The trees are located on the rear boundary of the respondents' (Mr and Mrs Shelley) property adjacent the rear side boundary of the applicant's property.
Tree 1 (T1) is a multi-trunked (co-dominant trunks from the base) tree located in the eastern corner of the respondents' property close to the Colorbond fence that runs along the boundary with the applicant's (Mr Jones) property. The trunk is in excess of 900mm in diameter at the base and the broad canopy is asymmetrical with the significantly larger portion overhanging the applicant's rear yard.
I note that a second application in regard to T1 is before the court and was also considered at the on-site hearing. The applicant, Mrs Kitching, owns the property that adjoins the eastern rear side boundary of the Shelley's property.
Tree 2 (T2) is located in the rear western corner of the respondents' property and comprises a stump from a Weeping Fig that was cut above ground level some time ago and has two epicormic shoots arising from it. One of the shoots has reached a height of several metres and the other snapped off at approximately fence height in a severe storm in April 2015. The shoot that snapped is approximately 100mm in diameter.
Mr Jones is seeking orders for the poisoning, removal and stump grinding of T1 and T2 and the removal of roots within his property.
Mr Jones contends that roots from T1 have damaged a brick BBQ in the backyard and have grown under the house and were found to be lifting tiles in the bathroom. Additionally, Mr Jones contends that the boundary fence is damaged. In relation to the BBQ and fence Mr Jones suggests that the structures will be further damaged in the near future.
In his application Mr Jones also expresses his concern that limbs from T1 will fall causing damage to his property or injury to a person.

Tree 1 - Past damage

The trunk of T1 abuts the boundary fence between the two properties and large woody roots can be seen at the base of the fence where it is raised off the natural ground level and also in the applicant's property near the tree. The woody roots appeared to be in contact with the underside of the fencing panel.
Mr Jones contended at the hearing that the end of the fencing panel closest to the tree trunks has been slightly raised by the roots directly below that panel. The alleged damage was not clear at the hearing and despite the applicant having the opportunity to do so, no evidence was provided to support the claim. The application in regards to past damage to the boundary fence is dismissed.
On the applicant's property, within a couple of metres of the tree, is a brick BBQ built on a concrete slab. Mr Jones contends that the slab has been displaced by a tree root or roots causing minor cracking in the brickwork. A woody tree root was seen above ground level near the corner of the slab and appeared to be travelling under the slab. There is a fine crack in the brickwork close to where the root may be located underneath the slab.
The respondents claim that the alleged damage to the BBQ is likely to be attributed to the age of the structure or poor construction methods rather than to the tree roots.
As discussed in Liang & anor v Marsh & anor [2011] NSWLEC1026 relevant to the jurisdictional test as to whether damage has been caused to the applicant's property is that the applicant must own the property alleged to be damaged by the tree at the time the damage occurred. Mr Jones has owned the property since May 2015.
I am satisfied from what was seen on site that the roots from T1 have contributed to the current condition of the brick BBQ. Consideration has also been given to the other contributing factors such as the age of the structure and lack of maintenance as well as the actual amount of damage (if any) that has been caused by T1 in the 8 months that Mr Jones has owned the property.
I am satisfied that section 10(2) of the Act has been met in regard to the BBQ and that the jurisdiction is enlivened however the minor nature of the damage likely to be able to be attributed to the tree in the time since the applicant has owned the property does not warrant that orders be made in relation to past damage.
The application includes images showing what appear to be fine tree roots growing up a supporting wall under the applicant's dwelling. The applicant claims that in June 2015 roots were found to be the cause of tiles lifting from the bathroom wall located in the vicinity of where the roots were found under the dwelling. Despite the applicant having the opportunity to do so there was no evidence submitted in relation to the contention that roots were found behind the tiles or that roots had caused the tiles to displace from the wall. As a result of the foregoing the application in relation to damage to the bathroom tiles is dismissed.

Tree 1 - Future damage

The applicant contends that the large woody roots currently in contact with the base of the fencing panel will further damage the fence as they increase in size.
Given the characteristics of the species and drawing on my expertise on the matter I think it is likely that the roots will significantly increase in size over time. Any increase in the girth of the roots that are currently located directly under the fencing panel are likely to have an impact on that structure causing damage.
In relation to possible future damage guidance is taken from Yang v Scerri [2007] NSWLEC 592 where the Court applied a 'rule of thumb' that the appropriate timeframe for 'in the near future' is a period of 12 months from the date of the hearing.
I am satisfied that damage to the fence in the near future is more than a theoretical possibility. It is acknowledged that any damage within a 12 month timeframe may be minor however the likelihood of some damage is sufficient for me to be satisfied that section 10(2) is met and that the jurisdiction of the Court is enlivened. It is also considered likely that the damage would be ongoing and become incrementally worse over time.
The applicant also contends that it is likely that the brick BBQ will be damaged in the near future. Given that the BBQ is further from the tree than the fence and no direct link between the tree roots and the alleged damage has been established it is difficult to be satisfied that damage in the near future is likely. As I have already established that one of the jurisdictional tests at section 10(2) is satisfied in relation to future damage there is no need to satisfy another.

Tree 1 - Injury and future damage from branches

There are woody roots that can be seen at ground level in several locations within the rear yard of the applicant's property. The applicant claims that the uneven surface that the roots create cause a trip hazard. Drawing on my expertise on the matter, given the appearance of the roots, I am satisfied that many of the roots are emanating from T1.
The woody roots that can be seen breaching the ground level would have been present, with little change, since Mr Jones purchased his property 8 months ago.
The canopy of T1 extends over a significant portion of the rear of the applicant's property. The applicant contends that there is potential that limbs from the T1 will fall onto his rear yard causing injury to a person or damage to property.
The applicant makes mention of limbs falling in a recent storm however no evidence was provided in this regard. When asked at the hearing if there were any particular limbs that were of concern the applicant stated that there were not and that it was a general concern due to the length and size of some of the limbs overhanging his property.
The respondents contend that there are no signs of potential limb failures in the canopy of the tree and that they are not aware of any past failure that could have caused injury.
Neither the applicant nor respondent engaged an arborist to provide an assessment of the structural integrity of the tree.
Mr Jones stated at the hearing that he has a current permit issued by Gosford City Council to prune the canopy of T1 back to the boundary line. A copy of the permit (Tree Works Consent No 9865) was included in the respondents' submission. Pruning of the tree to the boundary would entail the removal of more than half of the canopy significantly reducing any benefits that the tree currently provides.
Drawing on my expertise on the matter it was noted at the hearing that several of the branch unions throughout the upper canopy appeared to present with reaction wood (swellings) that may indicate included bark and or internal cracks at those points. If included bark is present at the branch unions they are more likely to fail than sound unions.
If a limb was to fail and make contact with a person or property in the rear yard it is likely that an injury or damage would occur. However, as I have already established that one of the jurisdictional tests at section 10(2) is satisfied in relation to future damage there is no need to satisfy another.

Tree 2

The applicant contends that roots from T2 are entering his property and creating trip hazards. At the hearing the applicant also expressed concerns relating to the potential of the taller of the 2 'suckers' emanating from the stump to break off and cause damage to property or to injure a person.
It was not clear at the hearing if the roots in the rear of the applicant's property near T2 were from T2 or T1.
There was no evidence provided nor any observations made to confirm the contention that T2 is likely to cause damage in the near future or cause injury to a person. The requirements under section 10 (2) of the Act have not been met and therefore no orders can be made in regard to T2. The application in regard to T2 is dismissed.

Discussion

Prior to determining an application the Court must consider the matters at section (12). Consideration has been given to the following relevant matters -

The tree is located directly adjacent to the common boundary of the two properties.
The pruning of roots that would be required to prevent future damage to the boundary fence would be likely to impact the structural stability of the tree.
The tree provides some privacy and shade, makes a positive contribution to the amenity of the immediate area and may provide habitat.
There is a current permit issued by Gosford City Council for the applicant to prune the canopy that overhangs his boundary that if acted upon would result in the removal of more than half of the canopy of the tree.

Mr Jones is seeking orders that all of the woody roots that are breaching the ground level within his backyard be removed back to the boundary with the respondents' property. As these roots would have been in existence at the time Mr Jones purchased the property I do not consider it appropriate to make orders in regard to the removal of any such roots.
The respondents have raised concerns that should the removal of the tree be ordered there may be an impact to the stability of the terraced area at the rear of their site. No expert opinion has been sought by the respondents in this regard. Given the distance between the trunk of the tree and the wall that retains the terraced area and that any order for the removal of the tree would not require that roots be removed from the terrace area, destabilisation is not considered likely. The respondents are at liberty to seek expert advice in regard to the impact of tree removal and to undertake any works (if any) that are recommended to mitigate the impact.
The respondents have proposed that the Court order a replacement planting in the event that the removal of T1 is ordered. The Court may require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth however as the opportunity for new tree planting is not able to be fully assessed until the Weeping Fig is removed it is considered more appropriate not to make any such order. The potential for planting in a similar location is likely to depend, in part, on the depth of any stump grinding specified by the respondents. If considered viable the respondents are able to plant a suitable replacement tree or trees without requiring an order from the court.

Orders

On the basis of the foregoing, the Orders of the Court are: 1. The application to remove the Ficus benjamina (Weeping Fig - T1) located in the eastern corner of the respondents' property is upheld. 2. The application to remove the Ficus benjamina (Weeping Fig - T2) located in the western corner of the respondents' property is dismissed. 3. The application to remove the woody roots that are breaching the ground surface on the applicant's property is dismissed. 4. Within 60 days of the date of this order the respondent is to engage and pay for an AQF Level 3 Arborist with appropriate insurances to remove the Weeping Fig (T1) to ground level and poison the stump. 5. All work shall be carried out in accordance with AS 4373 'Pruning of Amenity Trees' and the WorkCover NSW Code of Practice for the Amenity Tree Industry. 6. The applicant is to provide reasonable access (if required) for the purpose of quoting and for the safe and efficient carrying out of the works in order (4). The applicant must provide the respondents with his contact details and or the contact details of his tenants. Work is to be carried out during reasonable hours of the day. 7. The respondents are to give the applicant written notice of the works in order (4) a minimum of one week prior to the works being undertaken. L Durland Acting Commissioner of the Court

Amendments 10 February 2016 - Amended 'Date of Orders' and 'Date of Decision' on the Cover sheet. 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: 10 February 2016

At a glance

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Judgment (8 paragraphs)

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Cases Cited (1)

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