Lewis and anor v Tilney and anor

Yang v Scerri [2007] NSWLEC 592 CASES CITED: Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENTS Mr T Jessop, solicitor

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

21028 of 2008 Patricia and William Lewis v Oswald Tilney and Andrea Coburn

1 COMMISSIONERS: Mr and Mrs Lewis live in a house built some 30 years ago. The house to the east is owned and occupied by Mr Tilney who has lived in these premises for over 50 years. Mr Tilney has a large number of trees, including many mature trees, on his property. Ownership of this property is shared, in proportions that are not relevant to this decision, by Mr Tilney and his niece, Ms Andrea Coburn, who lives with him. It is convenient, for the purposes of this decision, to refer to the property as Mr Tilney's property and, as a consequence, to various trees as Mr Tilney's trees.

2 Mr and Mrs Lewis seek orders with respect to eight trees located on Mr Tilney's property. For the most part, the orders sought are for removal of a tree although, in one instance, the orders that are sought are for the pruning of the tree to the boundary between the two properties and for ongoing maintenance and pruning of this tree. Mr and Mrs Lewis also seek an order for compensation for past damage to a paved area and for the rectification of tree root damage to some stormwater pipes at the rear of their dwelling.

3 Before commencing any discussion on the issues concerning each of the individual trees, It is convenient to note that, before the Court has jurisdiction to consider making any orders with respect to a particular tree, the Court must be satisfied that at least one of four jurisdictional preconditions set by s 10(2) of the Act is met. These tests, in the alternative, are whether the tree has caused, is causing or is likely in the near future to cause damage to the applicants' property or whether the tree is a likely risk of injury to any person. Each of these questions must be asked, separately, with respect to each of the trees. The standard of satisfaction we are required to have before giving an affirmative answer to any one of these questions is the civil standard of proof - that is on the balance of probabilities.

4 If, and only if, one or more of these jurisdictional questions is answered in the affirmative do we have power to consider whether or not, having regard to the various factors contained in the s 12 of the Act and other matters of discretion, we should make any order and, if such point is reached, what the order should be made.

5 It is in this context that we turn to consider each of the eight trees that are the subject of the application made by Mr and Mrs Lewis.

6 Mr and Mrs Lewis addressed the trees, in their written submissions, through a diagram numbered sequentially in from the front of the property addressing Chapman Street along the fence line and thence toward the rear of the two properties. It is convenient for us to respond to these submissions using the same numbering as was adopted by Mr and Mrs Lewis. A copy of the diagram is Appendix 1 to this decision.

7 Tree 1 one is a mature Silky Oak in excess of 9 or 10 m in height. It is located on Mr Tilney's property immediately adjacent to the retaining wall at the front boundary and immediately adjacent to the boundary with Mr and Mrs Lewis's property. Although we observed some very minor cracking in the retaining wall immediately on Mr and Mrs Lewis's side of the boundary and extending to Mr Tilney's side of the boundary, we have no evidence that this cracking has been caused by this (or, indeed, any other) tree.

8 There are also, in the vicinity of Tree 1, on the council's nature strip, a number of other trees. There is also no evidence available to us about what drainage, if any, exists behind the retaining wall in either property.

9 Mr and Mrs Lewis's basis for seeking the removal of this tree is the fear that it will, eventually, cause damage, through its root system, to their property. There is no visible evidence that the roots of this tree have in the past caused or are currently causing any damage to Mr and Mrs Lewis's property.

10 We have carefully examined the structure of the tree and can see no sign of any deadwood of significance in its canopy. There is nothing visible to us that would cause us to conclude that this tree was in likely, within the next 12 months or so, to cause damage to Mr and Mrs Lewis's property. The Court has adopted, in Yang v Scerri [2007] NSWLEC 592, a rule of thumb that in the near future for the purposes of the s 10(2)(a) of the Act should be taken as being within 12 months or so. There is nothing in the circumstances of this case that would cause us to depart from that rule of thumb and we adopt it in these circumstances.

11 The consequence of that, as Mr and Mrs Lewis do not suggest that there is any likely risk of injury arising from this tree, is that we are unable to be satisfied that any of the jurisdictional prerequisites are met for this tree. The necessary further consequence is that Mr and Mrs Lewis's application concerning Tree 1 is refused.

12 Tree 2 is a Camphor Laurel tree. It is located immediately adjacent to and to the east of Tree 1 - that is away from Mr and Mrs Lewis's property. It is an immature specimen within a number of trunks rising from a common base. It is separated from Mr and Mrs Lewis's property by the substantial girth of Tree 1. Mr and Mrs Lewis also fear that, in the fullness of time, this tree will grow to be of substantial dimension and will also cause damage to their property through its root systems. As with Tree 1, they do not point to any past or present damage to their property and nor do they claim in any likely risk of injury arises in from this tree. Given the size and dimensions of this tree and its overshadowing by the surrounding vegetation (that will block the light from it) and the practical barrier provided by Tree 1 between this tree and Mr and Mrs Lewis's property, it is inconceivable that this tree is likely to cause an any damage whatsoever to the Lewis's property within the next 12 months or so. The necessary consequence is that, as with Tree 1, the application for removal of this tree is refused.

13 Tree 3 is a large eucalypt growing some distance within Mr Tilney's property but having a substantial canopy spread over his property and over Mr and Mrs Lewis's property. There are at least two significant dead branches in the canopy of this tree that are wholly or partially over the Lewis's property. The area of their property that is overhung by these dead branches is a shaded lawn area at the front of the property that does not appear to be used for significant recreational or other purposes by Mr and Mrs Lewis. However, Mrs Lewis gave evidence she uses this area for gardening and mows this lawn.

14 Whilst there is no basis upon which we could conclude that the root system of this tree has caused, is causing or is likely in the near future to cause damage to Mr and Mrs Lewis's property, we are satisfied that the dead wood we observed in the canopy overhanging Mr and Mrs Lewis's property does constitute a likely risk of injury to a user of the front lawn of Mr and Mrs Lewis's property. Despite the comparatively low probable use of this target area, because of the seriousness of the injury that might be occasioned if either branch were to fall, we consider it appropriate to order the removal of this dead wood and for Mr Tilney to undertake in this work using an appropriately qualified and insured person (as will be specified in our orders).

15 In making this observation, we should deal, at this point, with the submission made by Mr Jessop, solicitor for Mr Tilney, on instructions from Mr Tilney, that he should be permitted both sufficient time to undertake any necessary work and that he, Mr Tilney, should be permitted to undertake the work himself. Although, from our observation, Mr Tilney is comparatively spritely, he is nonetheless a 92-year-old TPI pensioner. As we indicated to Mr Jessop when he made this submission, we are of the view that it is appropriate (not merely to protect Mr and Mrs Lewis's property but also to protect Mr Tilney) that any work that we might require be undertaken to any tree on his property should be undertaken by an appropriately qualified arborist who also has all necessary and relevant WorkCover Authority insurances. We therefore do not accept the broad proposition, with respect to any work we might order, that Mr Tilney should be permitted to undertake that work himself.

16 Mr and Mrs Lewis also raised the question of the deposition of leaves, small twigs and other detritus on their property and the necessity for them to clean up such materials. This arose with respect to Tree 3 and also arose with respect to several other trees and Mr and Mrs Lewis's concerns with respect to impact on and blockage of their gutters. Those are matters also mentioned, specifically, later in this decision. Before considering whether or not, as a matter of discretion, the Court might order interference with a tree or its removal, as a consequence of the depositing of material on adjoining property, one of the four jurisdictional tests must be satisfied with respect to the dropping of such materials (see Preston CJ in Robson v Leischke (2008) 159 LGERA 280; [2008] NSWLEC 152 at paras 168 to 171).

17 With respect to this tree, there is no basis upon which we could find that the dropping of leaves, twigs and other detritus has caused, is causing or is likely in the near future to cause actual damage to Mr and Mrs Lewis's property nor is it a likely risk of injury to any person. As a consequence, we do not have jurisdiction, on this basis, to make them any order concerning this tree. This basis for removal of this tree is, therefore, rejected.

18 However, with respect to Tree 3 (and generally in the context of Mr and Mrs Lewis's application), it is also appropriate to note the Tree Dispute Principle published by the Court in Barker v Kyriakides [2007] NSWLEC 292 that says, essentially (as noted by Mr Jessop in his submissions) that for those persons who have the environmental and aesthetic benefits of trees in urban areas, there is an associated responsibility to undertaken ordinary levels of maintenance to deal with the detritus that can might be expected to be deposited by such trees. As a consequence, as a matter of discretion, the Court not ordinarily order any interference with or removal of a tree on the basis of deposition of leaves, small twigs, nuts or berries and the like on adjoining properties.

19 Had the jurisdictional impediment dealt with in (16) and (17) not lain in the path of any application for removal of this tree, as a matter of discretion we would not order it as we would follow Barker.

20 To deal with the dead wood issue discussed earlier, the orders of the Court are: i. All deadwood in the eucalyptus tree identified as Tree 3 in the diagram appended to this decision (being deadwood greater than 20 mm in diameter at its point of attachment and that is overhanging Mr and Mrs Lewis's property at any point from the point of attachment of the deadwood to the tree) is to be removed at the point of attachment of the deadwood to the tree; ii. The removal of the deadwood in order (i) is to be undertaken by an AQF Level 3 arborist with appropriate insurances; iii. The removal of the deadwood in order (i) is to be undertaken within 90 days of the date of this decision; iv. The removal of the deadwood in order (i) is to be undertaken by the respondents at their expense; v. Mr and Mrs Lewis are to permit the arborist undertaking the work in order (i) access to their property for the purposes of undertaking the work in order (1) with such access to be on reasonable notice, at a reasonable hour of the day and with Mr and/or Mrs Lewis having an opportunity to supervise such access. 21 Tree 5 is a clump of bamboo. Botanically, bamboo is a grass. However, the Trees (Disputes Between Neighbours) Regulation 2007 declares bamboo to be a tree for the purposes of the Act.

22 "Clump" is used in this descriptive sense not in any non-technical sense and, by describing the stand of bamboo in this fashion, we do not seek to imply that we are satisfied that, for the purposes of the test in s 4(3) of the Act, the bamboo constitutes a single tree rather than in a series of individual trees that may have, in the past been linked by rhizomes that may not at the present time be so linked.

23 The dominant numbers of stems of the bamboo are located on Mr Tilney's property. A comparatively small number of them (that have been subjected, on Mrs Lewis's evidence, to both pruning and poisoning over the years) were also subject of an attempt by Mr Lewis, in approximately 1994 or 1995 for complete removal on both sides of the fence.

24 At various stages in the past, Mr and Mrs Lewis have undertaken works on their property to respond to the trees located on Mr Tilney's property and Mr and Mrs Lewis's concerns about them. On the edge of the paved area at the front of their house through to a point at the line of the rear wall of their dwelling, Mr and Mrs Lewis have had constructed a reinforced concrete root barrier, inside the boundary of their property. This root barrier is, on Mr Lewis's evidence, some 600 mm deep and, on our observation, is some 150 mm wide. This root barrier, as we understand it, was installed at the same time that works were undertaken to re-lay the pavers at the front of the house. The re-laying of these pavers is the subject of part of Mr and Mrs Lewis's compensation claim and forms the basis for the order that is sought for the removal of Tree 4 that is a substantial Moreton Bay Fig tree.

25 However, for the purposes of dealing with the bamboo, it is also pertinent to note that, in addition to the concrete root barrier, in the past Mr and Mrs Lewis have also installed a fibre-cement sheet root barrier from the point where the concrete root barrier finishes through to the front boundary of their property. This root barrier is also, on Mr Lewis's evidence, some 600 mm below the surface of the ground. The existence of this root barrier, together with the unsuccessful eradication works undertaken by Mr Lewis to remove from the bamboo in about 1994 or 1995, means that we cannot be satisfied that such bamboo, as is growing on Mr and Mrs Lewis's side of the boundary, forms part of a conjoined association of bamboo shoots with the bamboo shoots located on Mr Tilney's property and is thus the same tree for the purposes of s 4(3) of the Act. As a consequence, the application concerning the bamboo does not have a proper jurisdictional foundation and must be refused.

26 If we be wrong and the bamboo is a single tree with the major portion of the bamboo being principally located on Mr Tilney's land, we have considered whether there is any damage that has been caused, is currently being caused or is likely in the near future to be caused by such bamboo as might have spread from Mr Tilney's land to the Lewis's property.

27 Although this bamboo is regarded by the Lewis's as a nuisance and it has intruded into their garden causing them to attempt, unsuccessfully, eradication measures directed at its growth on their side of the boundary line, there is no actual past or current damage to that they were able to point and nor is there any basis on that we could conclude that this bamboo was likely to cause any damage to their property in the near future.

28 The bamboo, given its location and the size of its growths, being shoots of a maximum of some 25 mm in diameter, growing, from our observations of the bamboo on Mr Tilney's side of the fence, to some 2+ m tall could not possibly be a likely risk of injury to any person either in their present form (that is stunted to some 300 mm above the ground as a result of Mr and Mrs Lewis's eradication attempts) or if the bamboo were to grow to full-height as shown on Mr Tilney's side of the boundary. This element of Mr and Mrs Lewis's application must, therefore, also fail.

29 We now turn to consider the question of the Moreton Bay Fig tree and the damage that has been done, in the past, to the pavers at the front of Mr and Mrs Lewis's house. We have Mr Lewis's uncontradicted evidence (coupled with receipts attesting to the work that was done to re-lay those pavers in mid-2003) that these pavers were damaged by being uplifted. As a consequence, the relevant element of the jurisdictional tests - that is that there has been damage to Mr and Mrs Lewis's property - is satisfied.

30 The pavers that were re-laid in 2003 now show no indication of buckling or displacement some five and a half years after their re-laying and the construction the concrete root barrier. It was Mr Lewis's evidence that, at the time the re-laying was undertaken, the roots of the Moreton Bay Fig tree were cut back to the boundary with Mr Tilney's property.

31 Although Mr Jessop initially submitted that this claim was time barred, this submission was not, ultimately, pressed. Mr Jessop also submitted that, because the cost of the re-laying of the paving had been the subject of an unsuccessful action the Local Court, the matter was not now able to be pursued before us. For the reasons that follow, we have concluded that we do not need to determine this point.

32 There is, no doubt, on the visual evidence of the state of the paving at the present time, that the relaying of the pavers and the installation of the root barrier have meant that there has been no root impact on the pavers over the ensuing five and a half year period. This leads us to conclude that a properly installed paved area, coupled with a root barrier (had this been installed at the time the original paving was put down), would have ensured that the Moreton Bay Fig tree could not have interfered with the paving after it had been installed.

33 The Moreton Bay Fig tree is a substantial tree and was present at the time Mr and Mrs Lewis constructed their house and installed this paving.

34 Because Mr Tilney was legally represented in the proceedings and Mr and Mrs Lewis were self-represented, we gave Mr and Mrs Lewis a copy the decision in Black v Johnson (No 2) [2007] NSWLEC 513 containing the Tree Dispute Principle concerning construction in the vicinity of a tree when the tree was there first. This decision was provided to them for their consideration and any submissions they might wish to make concerning internal it in the context of their application's factual matrix.

35 We are satisfied that, as we have reached an alternative conclusion for dismissing this element of the claim, it is not necessary for us to consider whether or not the Black principle would have had any application in shifting a cost burden from Mr Tilney to Mr and Mrs Lewis for the paving.

36 We have concluded that we should not order any compensation for the cost of the paving and root barrier as we consider that had proper account being taken of the presence of the Moreton Bay Fig tree at the time the paving was originally put down, the proper and sufficient method of construction should have been that that was subsequently adopted by Mr and Mrs Lewis. As subsequent experience has demonstrated, the proper construction methodology would have prevented damage occurring, it is not appropriate to require Mr Tilney to compensate Mr and Mrs Lewis for the inadequate workmanship of and lack of appropriate precautions in the original construction. This element of Mr and Mrs Lewis's claim therefore also fails.

37 Although the past damage enlivens the Court's jurisdiction concerning the Moreton Bay Fig tree, the fact that in the has been no damage caused to the pavers since they have been re-laid using appropriate construction techniques and the installation of the root barrier causes us to conclude that it is unlikely, even on a time horizon considerably longer than the 12 months or so appropriate to consider on jurisdictional issues (see Yang), that there will be any further damage to this paving caused by this tree. Therefore, as a matter of discretion, we are not prepared to order removal of the Moreton Bay Fig tree or any interference with it.

38 The next tree, Tree 6, is a Podocarpus that is grows 1 m or so out from Mr and Mrs Lewis's boundary and is some 10 m or so tall. Its branches overhang Mr and Mrs Lewis's dwelling. The Silky Oak deposits leaves and other small detritus in the gutters and along a wooden deck constructed almost to the boundary this side of their dwelling.

39 Mr and Mrs Lewis have, in past, trimmed the branches of this tree to the boundary at their own expense. Apart from the depositing of material falling from the tree of their property, Mr and Mrs Lewis do not suggest that this tree, through its root system, was in the past, is at present or will in the future be a threat to their property nor do they raise any issues of risk of injury.

40 Mr and Mrs Lewis do not raise, with respect to this tree, any suggestion past or present damage to their property by the deposition of detritus from this tree but they express concern that the blocking of their gutters, in future, would lead to such damage. For the reasons given by Preston CJ in Robson as noted earlier, there is no basis upon that we could be satisfied that either of the first two of the jurisdictional tests in s 10(2)(a) of the Act are met. There is no basis upon that we could be satisfied that any such damage as is feared by Mr and Mrs Lewis would occur within the next 12 months. Thus the third of the jurisdictional tests in s 10(2)(a) of the Act is also not met. No issue is raised concerning the jurisdictional test in s 10(2)(b) of the Act. We are therefore satisfied that we do not have jurisdiction to order interference with or removal of the Silky Oak.

41 However, if we are wrong on this issue, as a matter of discretion for the reasons discussed above arising from the principle in Barker we would also not order any interference with or removal of this tree.

42 Although we have determined that we will not order Mr Tilney to do anything to this tree, our declining to do so does not alter any rights that Mr and Mrs Lewis themselves might have, subject to any requirements of Hornsby Council's tree preservation order, to undertake pruning work on this tree where it overhangs their property.

43 The next tree, Tree 7, is a Lilly Pilly. It is growing near the south-eastern corner of Mr and Mrs Lewis's dwelling and is located less than 800 mm or so from the boundary between the two properties.

44 At the rear of Mr and Mrs Lewis's dwelling, Mr Lewis has exposed sections of the terracotta stormwater pipes that drain the gutters and hard surfaces of their property into a council stormwater drain running along the portion of the drainage easement on Mr and Mrs Lewis's property which is adjacent to the boundary with Mr Tilney's property.

45 Mr Lewis has given evidence and provided receipts concerning the cost of rectification of tree root fractures of these pipes. The pipes have been exposed and we saw tree roots emerging from within them together with a number of other substantial roots up to approximately 30 mm in diameter growing around the pipe at the point where the blockage has occurred.

46 Mr Lewis has also shown us samples of matted tree roots he said he had removed from these pipes. On his uncontradicted evidence, we accept that these have been removed from the pipes.

47 Mr and Mrs Lewis seek an order for removal of this tree on that basis. They also support their request for the removal of this tree on the basis that the dropping of its fruits, in the past, has led to the rusting out of a section of the guttering immediately adjacent to this tree. This latter element provides the past damage jurisdictional foundation necessary to found the application for removal of this tree. However, for the discretionary reasons earlier cited arising from Barker, we would reject this aspect of their claim for the removal of this tree.

48 There is no doubt that tree roots have caused damage to the pipes as we have seen. Although there is no difficulty in meeting the relevant jurisdictional test, Mr and Mrs Lewis have not undertaken any investigation that would prove, on the balance of probabilities, to our satisfaction, that the Lilly Pilly was in fact, the source (and the sole source) of the tree roots in the stormwater pipes. Mr Lewis has had no DNA or other technical analysis undertaken of these tree roots.

49 In addition to the Lilly Pilly, there are a number of other significantly sized trees on Mr Tilney's property from which the roots might emanate. Although the Lilly Pilly is the closest tree to the damaged pipes, there is no sufficient evidence to satisfy us that this tree is necessarily the source (and/or the sole source) of these roots. Indeed that, the direction and nature of the roots means that there may, in fact, be more than one tree's roots involved as impacting on the stormwater pipes. We certainly cannot accept the mere proximity of the Lilly Pilly as a sufficient basis for us to be satisfied that this tree is, in fact, the or a source of the roots in these pipes.

50 As a consequence, although we are not able to be satisfied about the source of the tree roots causing this damage, there could be little doubt that intervention would be appropriate if the tree or trees whose roots are causing the damage were adequately identified.

51 The nature of such an order would necessarily depend on the tree or trees that were causing the root damage. We note that the concrete root barrier that Mr and Mrs Lewis have had installed finishes immediately adjacent to the line of the rear wall of their dwelling. It was not constructed any more extensively along the boundary of the property for reasons of cost as indicated by Mr Lewis. An extension of the root barrier may be an option as an alternative to tree removal depending what tree or trees are the cause of the pipe damage.

52 There are a number of other trees, including a very substantial Liquidambar, on Mr Tilney's property that are sufficiently close to this point that they might be the or a source of the roots in the pipe given the size of these trees and the distance that their roots may well have travelled.

53 Given that we are satisfied that at least one of Mr Tilney's trees is the cause of the damage to Mr and Mrs Lewis's terracotta pipes but that we are unable to be satisfied as to which tree is/trees are that cause, we are not able to make any order the removal of that tree/those trees or any other appropriate remedial order. As consequence, we do not consider it appropriate, without ordering the removal of or interference with a properly identified tree or trees or some other appropriate order that would prevent the damage recurring, to make any order concerning costs of rectification of the damage to the pipes.

54 As we are not making any determination concerning rectification of the damage to the pipes, it is not appropriate for us to make any comment on who should bear what proportion of the costs of that rectification as, if the cause of the damage to the pipes was properly identified, as this might be the subject of a further hearing by the Court. These comments should not be construed to draw any inference whatsoever about apportionment or, indeed, that any apportionment would be appropriate. That is a matter for the future if need be.

55 However, as this application is being determined solely on the facts and circumstances in evidence before us, this decision does not preclude the making of some further application by Mr and Mrs Lewis if they obtain proper identification evidence concerning the roots that are damaging their pipes. If they obtain such evidence, in the light of Mr Tilney's preparedness to concede the removal of what he considered was the offending tree, we would hope that the parties might be able to resolve this issue without further application to the Court.

56 The final tree, Tree 8, is a Jacaranda. Mr and Mrs Lewis seek an order for the removal of this tree on the basis that they apprehend that the roots of this tree are a risk of blocking a 600 mm council stormwater drain (located in the earlier noted drainage along this part of the the boundary of their property) or from blocking Mr and Mrs Lewis's own stormwater and sewer lines. There is no evidence of past or present damage caused by the roots of this tree. There is no evidence that it is likely that this tree will cause damage to Mr and Mrs Lewis's property within the next 12 months or so. Thus there is no basis, founded in s 10(2)(a) of the Act, upon that we could make any order for the interference with or removal of this tree. This element of Mr and Mrs Lewis's application, therefore, also fails.

57 This determination, based on the present position does not, of course, preclude Mr and Mrs Lewis from making a future application concerning this tree if circumstances change.

58 However, we note that damage to the council's stormwater drain (unless that damage, itself, causes subsequent damage to Mr and Mrs Lewis's property), does not provide any basis for an application under the Act as the council stormwater drain is not Mr and Mrs Lewis's property and thus does not fall within the Court's jurisdiction.

59 The orders of the Court, therefore, are those in (20) above but the application is otherwise dismissed.

Tim Moore Peter Thyer Commissioner of the Court Acting Commissioner of the Court

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