Lindsay v Williams as the Executor to the Estate of Janne Patricia Flarrety

Land and Environment Court (NSW)|2024-02-13|Before: Centres J

Background

COMMISSIONER: Carmen Lindsay (the applicant) lives at her Merrylands West property. Suzanne Williams (the respondent, as executor to the estate of Janne Patricia Flarrety) has lived at the neighbouring property for 22 years. Until January 2017, a liquidambar (Liquidambar styraciflua) (the tree) grew in her front garden. Areas of Ms Lindsay's property, including concrete paving and a garden wall, are cracked and displaced. Ms Lindsay says this damage was caused by the tree and must be repaired to prevent injury that might be caused by tripping over uneven concrete, or should the wall fall over. She has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the respondent to pay her $20,380 for repairing property and $1,320 for the cost of a building report. I note that Commissioners of the Court do not have the power to make orders for costs, such as the cost of the report.
The hearing took place onsite, allowing the Court to observe the damage to Ms Lindsay's property and relevant issues.

Reasonable effort and notice of the application

When the liquidambar still stood in Ms Williams' garden, Ms Lindsay spoke with Ms Williams about the tree and problems that it caused her. Ms Williams recalled that these discussions related only to leaf litter from the tree, but Ms Lindsay said she also told Ms Williams about tree roots and damage on her property. In February 2017, Ms Lindsay unsuccessfully sought mediation through the Community Justice Centres. She made further attempts in 2022 to reach some agreement regarding compensation for damage. I am satisfied that Ms Lindsay made a reasonable effort to reach agreement with the respondent: s 10(1)(a) of the Trees Act. I am also satisfied that the timeframe for these proceedings allowed the required notice of the application: s 10(1)(b).

The tree caused damage to the applicant's property

The liquidambar grew on the respondent's property close to the common boundary shared with the applicant. Although the tree was removed more than seven years ago, dead roots and shoots remain on Ms Lindsay's property, in her front garden and on either side of a block wall in the garden. Concrete paving to the north of the block wall has cracked and lifted, and the wall itself is cracked and leaning. Dead roots and shoots can be seen beneath the cracked concrete and along the wall. Ms Lindsay submitted that the tree's roots and shoots caused this damage to the concrete paving and the concrete wall. I noted that the property's condition generally reflects its age - concrete paving is cracked elsewhere. Mr Koikas submitted that despite this general deterioration with age across Ms Lindsay's property, it was worse where the tree's roots have grown. Ms Lindsay also submitted that root growth caused water to flow into her garage.
Dan Drexler, a licenced builder and building consultant of NSW Master Building Inspectors, inspected Ms Lindsay's property on 28 September 2022. Mr Drexler concluded that the block wall and concrete paving were damaged by the liquidambar's roots and required immediate repair. Mr Drexler estimated the cost of repairing the damage to be $20,380. He found that roots had not caused water ingress to Ms Lindsay's garage.
Although the block wall and paving show their age of 50 years or more, I accept that tree roots have exacerbated their deterioration in places. By contributing to damage, the tree was a cause of damage, allowing the Court to make orders: s 10(2)(a) of the Trees Act. Ms Lindsay submitted that the tree is likely to cause her injury if she trips on uneven paving. To my mind, any such injury would be caused by the concrete paving, not the tree.
Mr Koikas pointed out that orders can be made if the tree has caused damage, even though the tree was removed: s 4(4) of the Trees Act.
It follows that the Court can make orders as it sees fit to remedy the damage (s 9 of the Trees Act) after considering the relevant matters at s 12.

Consideration of relevant matters

At s 12(h) of the Trees Act, the Court is to consider: (h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property: (i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and (ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage.
Relevant questions in these proceedings are:

When did the tree first cause damage?
What else contributed to the damage?
What actions did the applicant take to prevent damage?
When was the respondent made aware of the damage?
What actions did the respondent take to prevent damage?

The size and extent of shoots growing up the block wall indicate that they were allowed to grow here for many years without being removed. Bringing my own arboricultural expertise, I note that the form of the remaining tree parts on Ms Lindsay's property, including the presence of pruning cuts, shows that shoots were maintained for many years with live growth covering the wall, rather than being killed or removed from the wall. It appears that for several years before 2017, Ms Lindsay maintained vegetation that covered her block garden wall, including shoots of the liquidambar.
Ms Lindsay submitted that she spoke with the respondent before 2017 about the nuisance caused by the tree. Ms Williams recalled conversations about the tree, but insisted that Ms Lindsay only complained about foliage falling from the tree. Ms Lindsay thought she had also informed the respondent that roots were damaging her property. Ms Lindsay was a little vague on this issue, which is not surprising when one considers the time that has passed since those conversations and since the tree was removed. Ms Lindsay also stated that she could not recall if she told the respondent about property damage before or after the tree was removed.
After Ms Lindsay contacted her insurer, an insurance agent inspected the tree and Ms Lindsay's property on 25 January 2017. The respondent removed the tree later that afternoon.
Ms Lindsay submitted that the condition of her concrete paving and block wall has deteriorated further since 2017. She attributes this to the tree's roots that remained on her property.
It seems to me that Ms Lindsay could have prevented damage to her own property by removing the tree's shoots that grew on her wall, rather than letting them establish around or on the wall and then maintaining them.
Based on the statements made by both parties during oral submissions, I am not satisfied that the respondent was aware of any damage caused by the tree to the applicant's property. In the circumstances, Ms Williams was not able to prevent the damage. Whatever Ms Williams' reason for removing the tree in January 2017, even if it was in response to seeing the insurance agent inspecting the tree, as submitted by Ms Lindsay, Ms Williams arranged its removal promptly.
Considering the circumstances described above, I will not order Ms Williams to pay any compensation. Even if I thought some compensation was appropriate, it would be difficult to apportion the extent of damage caused by the tree in relation to the overall deterioration of Ms Lindsay's wall and paving, especially considering the presence of other vegetation on Ms Lindsay's property. Any attempt at apportionment would have amounted to only a small percentage of the compensation Ms Lindsay seeks.

Statute of limitations

I asked Mr Koikas about the time that has passed since Ms Lindsay noticed the damage. She sought mediation over the tree issue via the Community Justice Centres in February 2017. She filed her original application with the Court (the application was later amended on multiple occasions to correctly identify the respondent) on 5 June 2023. More than six years had passed since she sought mediation, and greater time had passed since she noticed the damage. Ms Lindsay explained that Covid lockdowns and family illnesses made this a difficult period, which I understand. Nevertheless, a period of more than six years provided ample opportunity to file an application to the Court. Had I found it appropriate earlier to order compensation, the making of those orders would likely be prevented by s 14 of the Limitation Act 1969: see Moroney v John [2008] NSWLEC 32 at [33].

Orders

The Court orders: 1. The application is refused. 2. The exhibits are returned, other than Exhibit A.

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: 09 April 2024

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage.

Relevant questions in these proceedings are:
- When did the tree first cause damage?
- What else contributed to the damage?
- What actions did the applicant take to prevent damage?
- When was the respondent made aware of the damage?
- What actions did the respondent take to prevent damage?
The size and extent of shoots growing up the block wall indicate that they were allowed to grow here for many years without being removed. Bringing my own arboricultural expertise, I note that the form of the remaining tree parts on Ms Lindsay's property, including the presence of pruning cuts, shows that shoots were maintained for many years with live growth covering the wall, rather than being killed or removed from the wall. It appears that for several years before 2017, Ms Lindsay maintained vegetation that covered her block garden wall, including shoots of the liquidambar.
Ms Lindsay submitted that she spoke with the respondent before 2017 about the nuisance caused by the tree. Ms Williams recalled conversations about the tree, but insisted that Ms Lindsay only complained about foliage falling from the tree. Ms Lindsay thought she had also informed the respondent that roots were damaging her property. Ms Lindsay was a little vague on this issue, which is not surprising when one considers the time that has passed since those conversations and since the tree was removed. Ms Lindsay also stated that she could not recall if she told the respondent about property damage before or after the tree was removed.
After Ms Lindsay contacted her insurer, an insurance agent inspected the tree and Ms Lindsay's property on 25 January 2017. The respondent removed the tree later that afternoon.
Ms Lindsay submitted that the condition of her concrete paving and block wall has deteriorated further since 2017. She attributes this to the tree's roots that remained on her property.
It seems to me that Ms Lindsay could have prevented damage to her own property by removing the tree's shoots that grew on her wall, rather than letting them establish around or on the wall and then maintaining them.
Based on the statements made by both parties during oral submissions, I am not satisfied that the respondent was aware of any damage caused by the tree to the applicant's property. In the circumstances, Ms Williams was not able to prevent the damage. Whatever Ms Williams' reason for removing the tree in January 2017, even if it was in response to seeing the insurance agent inspecting the tree, as submitted by Ms Lindsay, Ms Williams arranged its removal promptly.
Considering the circumstances described above, I will not order Ms Williams to pay any compensation. Even if I thought some compensation was appropriate, it would be difficult to apportion the extent of damage caused by the tree in relation to the overall deterioration of Ms Lindsay's wall and paving, especially considering the presence of other vegetation on Ms Lindsay's property. Any attempt at apportionment would have amounted to only a small percentage of the compensation Ms Lindsay seeks.

I asked Mr Koikas about the time that has passed since Ms Lindsay noticed the damage. She sought mediation over the tree issue via the Community Justice Centres in February 2017. She filed her original application with the Court (the application was later amended on multiple occasions to correctly identify the respondent) on 5 June 2023. More than six years had passed since she sought mediation, and greater time had passed since she noticed the damage. Ms Lindsay explained that Covid lockdowns and family illnesses made this a difficult period, which I understand. Nevertheless, a period of more than six years provided ample opportunity to file an application to the Court. Had I found it appropriate earlier to order compensation, the making of those orders would likely be prevented by s 14 of the Limitation Act 1969: see Moroney v John [2008] NSWLEC 32 at [33].

(1) The application is refused.

(2) The exhibits are returned, other than Exhibit A.

(Disputes Between Neighbours) Act 2006

At a glance

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