Kitching v Shelley & anor

Past and current damage

1. The trunk of the tree is directly adjacent to the Colorbond boundary fence between the two properties and large woody roots can be seen at the base of the fencing panel closest to the tree.
2. The respondents contend that the fence has accommodated the roots from the Weeping Fig and that no damage has occurred however it was able to be seen at the hearing that woody roots are in contact with the underside of the fencing panel and that the base of the panel is slightly bowed at that point.
3. I am satisfied from what was seen on site that the roots from the tree have contributed to the current condition of the fencing panel and that section 10(2) is met and therefore the jurisdiction of the Court is enlivened. It is also considered likely, given the characteristics of the species, that the damage will be ongoing and become more significant over time.
4. The toilet outhouse structure on the applicant's property is located within a couple of metres of the tree. The structure is on a slight lean and the water line has been disconnected. The applicant contends that the line supplying water to the toilet failed in 2015 and needed to be disconnected to stem the water leakage resulting in the toilet not being functional. The applicant contends that the movement in the structure caused the water supply line to break.
5. The applicant has not engaged a plumber to undertake any investigation into the cause of the failed water line.
6. The applicant has not alleged any damage to sewer pipes.
7. Mrs Kitching contends that roots from the tree have caused the outhouse slab to displace and the housing structure to lean. No exploratory excavation has been undertaken however at the hearing woody roots emanating from the tree could be seen entering the ground close to the rear of the structure.
8. The respondents claim that the condition of the toilet outhouse structure is likely to be attributed to the age of the structure, poor construction methods and lack of maintenance rather than to the tree roots.
9. Drawing on my expertise on the matter I am satisfied from what was seen on site that the roots from the tree have contributed to the current condition of the toilet outhouse structure. It is also considered likely that there are other contributing factors such as the considerable age of the structure and lack of maintenance. However, as I have already established that one of the jurisdictional tests at section 10(2) is satisfied in relation to the fence there is no need to satisfy another.

Tree 1 - Future damage or injury

1. 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.
2. Given the characteristics of the tree species I am satisfied that increased 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 it is considered highly likely that the damage will be ongoing as the tree increases in size and will become incrementally worse over time.
3. 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 the roots are emanating from the Weeping Fig tree.
4. The woody roots that can be seen breaching the ground level have been present for several years however the applicant has not previously approached the respondents in regard to taking any action to remove woody tree roots located within the rear yard.
5. In the application concerns are also raised in relation to the potential of limbs to fall and cause damage if they were to grow back over the yard and dwelling.
6. The canopy of the tree has been significantly reduced over the applicant's property to the extent that no limbs are located over or close to the dwelling and only a small number of branches overhang the boundary to a minor extent.
7. Given the minimal amount of the canopy that overhangs the applicant's property and the time in which it would take for limbs to grow to the point where failure of such limbs could cause damage to property I am not convinced that limbs from the tree are likely to cause damage in the near future.
8. It is noted that the owner of the property located adjacent to the applicant's property (Mr Jones, the applicant in the second matter that was heard on site in relation to the Weeping Fig) has a current permit issued by Gosford City Council to prune the canopy of the tree back to the boundary line. A copy of the permit (Tree Works Consent No 9865) was included in the respondents' submission to that application. Pruning of the tree to the boundary as permitted would entail the removal of more than half of the canopy significantly reducing any benefits that the tree currently provides.

Discussion

1. 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 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's neighbour to prune the canopy that overhangs his boundary that if enacted upon would result in the removal of more than half of the canopy of the tree.

1. The benefits that the tree provides are acknowledged however in this case there is no viable solution, such as the removal of some roots and installation of a root barrier that would allow the tree to be retained whilst preventing future damage.
2. The roots that are directly under the fence panel adjacent to the tree are large diameter woody roots and removing these would impact on the structural integrity of the tree.
3. Mrs Kitching is seeking orders that all of the woody roots breaching the ground level within her backyard be removed back to the boundary with the respondents' property. As these roots would have been in existence and increasing in size for some time and there have been no requests for the respondents to take any action in relation to removal or otherwise of the roots I do not consider it appropriate to make orders in regard to the removal of any such roots.
4. The respondents have raised concerns that should the removal of the tree be ordered there may be an impact on the stability of the terraced area at the rear of their site. No expert opinion has been sought by the respondent 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 on the rear terrace area and to undertake works that are recommended (if any) to mitigate the impact.
5. The respondents have proposed that the Court order a replacement planting in the event that the removal of the tree 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 arranged 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

1. On the basis of the foregoing, the Orders of the Court are: 1. The application to remove the Ficus benjamina (Weeping Fig) located in the rear eastern corner of the respondents' property is upheld. 2. The application to remove the woody roots that are breaching the ground surface on the applicant's property is dismissed. 3. 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 to ground level and poison the stump. 4. 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. 5. 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 (3). The applicant must provide the respondents with her contact details and or the contact details of her tenants. Work is to be carried out during reasonable hours of the day. 6. The respondents are to give the applicant written notice of the works in order (3) a minimum of one week prior to the works being undertaken. L Durland Acting Commissioner of the Court

Amendments 05 February 2016 - Clerical 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