Lal v Goonetilleke

Land and Environment Court (NSW)|2019-04-04

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

COMMISSIONER: Mr Lal has applied, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act), for the removal of a Jacaranda mimosifolia (Jacaranda) (the tree), from the rear yard of the adjacent neighbouring property, located in Constitution Hill.
He contends that the tree is causing damage to his back step, and that overhanging branches, pose a risk of injury. At Question (Q) 31 of his application, Mr Lal notes that: "Root of the tree is the cause of the damage to my property and to avoid further damages the tree must be removed. It is a huge tree and it can also cause injuries to my family in the near future."
Mr Lal's proposed Orders are: 1. Remove Tree to avoid further damages or injuries in the near future. 2. Remove roots from my property. 3. Repair the damage.
At Q 14, Mr Lal also claims $249 as compensation for the lodgement fee for his application under the Act.
The respondents, Mr Goonetilleke and Ms Peiris, utilise their property as an investment, and it was currently tenanted. They resist tree removal, but in response to ongoing pressure from Mr Lal, they applied for permission for removal from City of Parramatta Council (Council) on 14 January, 2019. Their "Reason for Pruning/ Removal" in their application was noted as: "Neighbour has claimed there is damaged (sic) caused to their concrete due to tree roots from Tree#1. The tree is healthy, strong and from what I have observed does not impose any hazards. Neighbour is wanting tree to be removed".
Having previously received documents from Mr Lal, noting his NSW Land and Environment Court (Court) application of 10 December, 2018, upon tree removal being granted, Council provided the complete Tree Application file to the Court on 28 February 2019. Mr Goonetilleke received a copy of the determination from Council on, or soon after, 27 February 2019.

The hearing

The hearing commenced on-site with both parties in the respondents' rear yard for an inspection of the tree, which is about 10 x 10 metres in height and canopy spread, and has two large main trunks. Though the tree is located about 1.5 metres from the parties' common boundary, which runs from roughly east to west, the majority of the canopy is growing over the respondents' property, with only minor encroachment above the applicant's land, and none over any roofs. It is the only large tree in the respondents' backyard.
I disagree with the findings of Mr Wareing, Council's Landscape Tree Management Officer, and his granting of permission for removal of the Jacaranda. Mr Goonetilleke's determination noted the approval reason as "Poor form/poor structural condition. Damage to property." Upon inspecting the tree on 23 February 2019, Mr Wareing noted in his Observations in the Tree Application file, that: "Tree is leaning on a slight incline. Decay evident at base. Poor form/branch structure with basal attachment with a climbing plant evident throughout the canopy. Large amount of surface roots within the property and neighbours." He also noted that the tree was a "Prominent feature due to location or stature", was in fair condition, had 98% live crown cover, and epicormic shoots.
Based on the arboricultural expertise that I bring to the Court, I conclude that this tree is healthy and fundamentally structurally sound. The form and structure of Jacaranda trees varies greatly, and many have an appearance similar to this specimen, which displays major arching trunks from which secondary branches, including large fairly vertical epicormic shoots, emerge. Major branch junctions appear to be free of defects, and Mr Wareing noted seeing no sign of stress fractures. Further, there are no obvious indications on the tree of a history of branch breakage, and nor was this suggested by Mr Lal. Though it may not be a classical form, epicormic growth and basal suckers are normally soundly attached on this species, and the form of this tree is not a basis to justify removal.
The "decay evident at base", noted by Mr Wareing, I deemed as relatively minor, and insufficient, based on arboriculture industry best practice, to justify more invasive internal assessment, let alone to be a reasonable basis for tree removal. Removal of the "climbing plant evident throughout the canopy" will benefit tree health, but again, the vine's presence should not be considered as a sound basis for tree removal. Finally, the large amount of surface roots within the property and neighbours' must be looked at in context. Many woody roots have thickened and protruded above the soil surface in the respondents' yard around the tree base, and this is normal for mature Jacarandas. The respondents do not view this as a problem, and have no plans to disturb these roots.
Viewed from within Mr Lal's rear yard, there is only one conspicuous woody root in the small lawn, but it appears to be growing under the concrete and paver step leading to the porch. The step is raised and cracked, and the root appears to be about 40mm in diameter where it meets and passes under the step.

Jurisdictional requirements

With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
The Court is obliged to consider a number of matters pursuant to s 10 of the Act.
As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated. Mr Lal's application included copies of extensive correspondence with Lang and Simmons, Quakers Hill, the respondents' property agent (agent), proposing removal of the tree. The respondents' rejected Mr Lal's request for mediation through Community Justice Centres NSW (CJC), but did apply to Council for tree removal, in response to Mr Lal's ongoing requests.
The next major test that is posed, by s 10(2) of the Act, is that the Court must be 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. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' with respect to damage is deemed to be a period of 12 months from the date of the determination.

Back step damage

The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, where at [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...". The root can be traced from the boundary adjacent to the tree, through a garden bed and lawn to the step, and it exhibits bark characteristic of Jacaranda species. Given that the step is raised and cracked, and the root appears to be about 40mm in diameter where it meets and passes under the step, I am satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant's property, and that the jurisdiction of the Act is thus engaged.
Though this damage may be viewed as minor, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 indicates that even relatively minor damage engages the Court's jurisdiction, provided that the nexus between the damage and tree causation has been displayed.
This said, the issues of current damage, and likely damage in the near future can be resolved by removing the root from beneath the step, and from Mr Lal's lawn and garden bed, and cleanly severing it on or just inside the common property boundary. While this is not positive for the tree, healthy Jacaranda trees are known in the arboriculture industry to be relatively tolerant of minor to moderate root damage, as is the case here. This extent of root removal required is also highly unlikely to lead to tree stability issues. Mr Wareing appears not to have considered this root pruning option in his assessment, but instead, defaulted to granting tree removal.

Dropping debris

Mr Lal also cited the issue of leaves and other tree debris dropping and blowing onto his porch roof near the tree, and the ongoing maintenance required to clear the roof and garden of this material.
The issue of maintenance is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at [20], establishes the tree dispute principle; "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 will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree."
In Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 (Robson) at [171], with respect to "annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind", Preston CJ states that this is not "damage to property on the land" within s 7 of the Act, and that: "leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."

Risk of Injury

There are no obvious characteristics of this tree that cause concern with respect to risk of injury. There is no apparent sign of structural weakness in the trunks, nor indication of faults at branch junctions. There is no history of failures of overhanging branches. The orientation of the canopy is mainly to the north and small branches encroach over Mr Lal's property by less than two metres. In Robson at [56], in analysing nuisance, his Honour notes that "mere encroachment into the neighbours land is insufficient to complete a cause of action for nuisance."
Based on the adduced evidence, I conclude that the tree poses a low and acceptable risk, and, therefore, the claim with respect to risk of injury is resolved and dismissed.
Mr Lal also claimed $249 as compensation for the lodgement fee for his application under the Act. Commissioners of the Court are not given delegation by the Chief Judge, pursuant to s 36 of the Land and Environment Court Act 1979, to deal with applications for costs or for the provision of reports and the like falling within the definition of costs. If Mr Lal wishes to make a separate application to the Court based on the outcome of these proceedings for any costs order, it must be by Notice of Motion which is heard and determined by the Registrar, or by a Judge of the Court.

Discretionary matters - s 12

In making an order, the Court considers relevant matters in s 12 of the Act.

The tree is located in the respondents' property (s 12(a)).
Pruning or removal of the tree would require consent from Council under the Environmental Planning and Assessment Act 1979, and this has been granted (s 12(b)).
The tree canopy extending over the common boundary has been pruned in the past, and in general it has not been excessive. Any subsequent pruning should continue to be light and selective, to minimise additional epicormic growth development. Pruning should be completed by an AQF level 3 qualified arborist (s 12(b2)).
The Jacaranda contributes to protection from the sun, and from wind, to the amenity of the respondents' property, and to the immediate locality. While not prominent from the street, it is readily visible from neighbouring houses and thus has intrinsic value to public amenity, particularly given that Jacarandas in bloom engender strong emotion in the community. Though this is not an especially large tree, there are few as large in surrounding yards, and this further enhances the local amenity value of the tree (s 12(b3)(e)(f)).
With a dense canopy, and moderate size, the tree could be expected to provide shelter for local fauna and thus would contribute to local biodiversity, but not to the extent that a native endemic species would (s 12(d)).
The tree is likely to be providing some benefit to soil stability, and, particularly, to absorbing water and reducing run off (s 12(g)).

Conclusion

I have examined the mature Jacaranda tree and have reached the following conclusions: 1. The lifting and cracking of the step may be considered minor damage, but I am satisfied that a root from the tree has caused this damage, and the jurisdiction of the Act is engaged. Mr Lal's proposed order for removal of the root, and compensation for step repair will be granted. 2. Any action with respect to damage in the near future is resolved and dismissed by the severing and removal of this woody root. 3. Mr Lal's proposed order for removal of the tree is dismissed. Council's determination for tree removal, dated 27 February 2019, is revoked. 4. The issue of leaves and other debris, falling on the porch roof and outdoor surfaces, is addressed and resolved with the guidance of the tree dispute principle established in Barker v Kyriakides [2007] NSWLEC 292. 5. With respect to risk of injury, the tree poses a low and acceptable risk, and, therefore, no action is available under s 7 of the Act. 6. As some rear step damage is likely to have occurred before the respondents were informed of the problem, the cost impost of the required works shall be apportioned evenly between the parties. 7. Any claim by Mr Lal's for compensation for the $249 application lodgement fee, is based on the outcome of these proceedings and must be by Notice of Motion which is heard and determined by the Registrar, or by a Judge of the Court.

Orders

The Court orders: 1. Prune the root exposed in the lawn with a sharp saw, just inside the applicant's property. Remove the root from the lawn, and infill the resulting void with soil. This work is to be completed by an AQF level 3 arborist. 2. Remove the uplifted section of the rear court yard step, and replace so that the step is re-aligned to the original level and made safe. 3. The applicant is to obtain three quotes for each of these works. The respondents are to pay a sum equivalent to 50% of the least expensive of each three quotes for works that satisfy orders 1 & 2, within 21 days of receipt of paid invoices. 4. If these works are not completed within six months, these orders lapse.

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: 25 June 2019

(2008) 159 LGERA 280

At a glance

Court

Decision date

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Judgment (10 paragraphs)

Parties

Cases Cited (6)