Lowe v Cottrell

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owners of a property in Elermore Vale against the owners of trees growing on an adjoining property. 2The applicants are seeking the removal of seven nominated trees growing along the north-eastern (side) boundary of the respondents' property. It is noted that there are several other trees and shrubs along this boundary that are not subject to the application. 3Other orders sought by the applicants are the repair or replacement of a damaged pathway and the cleaning out of all guttering around their property. 4Under s 10(2) of the Trees Act, the Court must not make an order unless it is satisfied that any of the trees concerned have caused, are causing, or are likely in the near future to cause, damage to the applicants' property or are likely to cause injury to any person. These tests must be applied to each tree subject to the application. 5The application shows the trees numbered from the northwest to the southeast from the street frontage to the rear of the property. The trees are not in numerical order but are dealt with in directional order. 6Tree 1 is a mature Angophora costata . It is a healthy tree with no obvious structural defects and less than 2% dead wood in the canopy. It is growing in a retained garden bed between the respondents' driveway and the applicants' front lawn. Adjacent to it are another Angophora on the respondents' property and a semi-mature Grevillea robusta (Silky Oak) on the respondents' property. The garden bed along the respondents' north-eastern boundary is retained by bush rock. 7According to the respondents, this tree was present on their bush block when they purchased it some 24 years ago. It is likely to be a remnant of the original bushland as the suburb of Elermore Vale is surrounded by native forest in which Angophora is common. 8The applicants are seeking the removal of this tree on the basis that either the failure of the entire tree or the dropping of branches could cause injury to any person using their front lawn, particularly in strong winds. 9They stated that they regularly clean up leaves and branches that fall from the tree. I was shown several small diameter branchlets that had blown out of the tree. These were alive when they fell. 10The applicants are also concerned about potential future damage to their sewer that apparently runs down the side boundary between the two properties. 11It was explained that the 'near future' is generally considered by the Court to be a period of 12 months from the date of the hearing as published in the guidance judgment Yang v Scerri [2007] NSWLEC 592. It was also mentioned that the Court cannot make an order against a particular tree unless the applicant proves, on the balance of probability, the nexus between that tree and the actual or potential damage. 12In this matter, apart from the other Angophora, there is a Privet and a Callistemon salignus on the respondents' property in the vicinity of Tree1. In close proximity on the applicants' property there is the Silky Oak, a Prunus sp, a Robinia pseudoacacia 'Frisia' (Golden Robinia) and a x Cupressocyparis leylandii (Leyland Cypress). Therefore should any blockage arise, the actual tree causing the damage would need to be identified. As the applicants were unable to prove their contentions, no order can be made for the intervention with tree 1 on the basis of future damage to the applicants' sewer. 13After inspecting the tree I have no reason to conclude that this tree is likely to cause injury to any person in the foreseeable future. As already stated, there are no obvious structural defects, there are no signs of instability and nor is there any dead wood of a size or quantity that is likely to cause injury. The small elements of live branches I was shown are similarly of a size unlikely to cause injury. 14Therefore as none of the tests under s 10(2) are satisfied, the application for the removal of tree 1 is dismissed. 15Since the making of the application, the respondents have removed or pruned trees 2-6. Section 4(4) states that Part 2 of the Trees Act still applies to trees that have been removed following damage or injury that gave rise to the application. Therefore the Court has the jurisdiction to determine those elements of the application. 16The applicants contend that trees 2-7 have dropped leaves and other debris onto their property resulting in an untidy mess in their gutters and on paths. The applicants state in their application that they have disconnected down pipes to cope with rainfall and that water has entered the house as a result of a leaf-blocked skylight. 17As a matter of jurisdiction (as discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152 at paras 171 and 172), the mere deposition of material does not cause damage and enliven the Court's jurisdiction under the Trees Act. I did not observe any damage to the applicants' property from the deposition of such material. If I am wrong on that point, I consider the Tree Dispute Principle adopted by the Court with respect to trees in urban environments and published in Barker v Kyriakides [2007] NSWLEC 292 to be appropriate in this matter. 18In this principle it is considered that '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'. 19It further states that 'The dropping of leaves, flowers, fruits, seeds or small elements of dead wood, by urban trees, will not ordinarily provide the basis for ordering removal of or intervention with a tree' . 20In this matter I observed a considerable amount of debris in the guttering on the side of the applicants' house adjacent to the trees in dispute. The applicants told me that they had not cleaned the gutters since Christmas 2009. I do not consider this to constitute regular maintenance. I also note that the applicants' house is a single storey dwelling with an accessible roof. Overall, the applicants have not demonstrated any extraordinary basis on which I should defer from the consistently applied principle in Barker. Therefore the application to clean the guttering is dismissed. 21Tree 2 is a semi-mature Sapium sebiferum (Chinese Tallow) that has been substantially reduced to one small leader, the top of which is just above fence height. No part of this tree overhangs the applicants' property. There is no evidence that this tree has contributed to the blockage of the skylight which is many metres away (or to any other damage to the applicants' property). Even if it had, as a matter of discretion afforded by s 9 of the Tree Act, no order will be made on the basis of Barker. 22Therefore the application to remove tree 2 is dismissed. 23The next tree shown on the diagram is tree 5. At the time of the application this was a mature Angophora costata and is now a stump at ground level showing signs of suckering. 24The respondents stated that on the advice of their arborist the stumps of the removed trees were not poisoned in case roots of remaining native trees picked up the herbicide. In my opinion this is unlikely on this site. 25Apart from leaf drop, the damage said to have been caused by this tree is the lifting of a section of stencilled concrete pathway between the dividing fence and the applicants' dwelling. The applicants contend that this is a dangerous trip hazard. The pathway consists of units of concrete paving approximately 1.2m long and about 100mm thick. 26The section of paving in contention is the fourth unit of paving southeast of the applicants' side gate. It has lifted approximately 80mm in one corner. On the opposite side of the fence is the stump of tree 5. The applicants contend that the uplift is due to the roots of the tree. 27The respondents contend that there are other likely causes, in particular, the way in which the path was installed. 28The applicants have owned their property for about 10 years. The respondents recall that the applicants' house was built about 21 years ago and a stencilled concrete driveway was installed at that time. The previous owner had a lot of concrete left over and to use it up the side path was installed with a minimum of preparation and with no reinforcing. 29The respondents also contend that as the land slopes down to the southwest (that is, the applicants' property is upslope of the respondents' property) subsidence has also contributed to the displacement. They also consider the subsidence is partly due to the limited preparation prior to laying the path. 30On the evidence before me, given the proximity of the stump of T5 to the lifted section and the degree of lift, I consider that tree 5 has contributed to the lift and it is a substantial trip hazard that could result in injury. Therefore as two of the tests under s 10(2) are met, the jurisdiction of the Court is enlivened and the Court may make an order with respect to Tree 5. 31The next tree is tree 3, a Hakea salicifolia that has been radically pruned away from the applicants' property. As no part of this tree overhangs the applicants' property, the reasoning given in para 21 for tree 2 applies to this tree and no order will be made for its removal. 32Tree 6 is the next tree. This was also a mature Angophora costata that has been removed to a stump. The base of this tree is adjacent to another segment of paving (number 11 from the side gate) that shows lifting on one corner of about 20mm. 33However, unlike slab 4, the contribution by the tree is less clear. In this case the effect of subsidence seems to be the main cause of the displacement. A nearby slab appears to have moved down-slope and slab 10 appears to have subsided by about 10mm. The overall uplift by the tree appears to be about 10mm. However, as there is likely to be some contribution by the tree, the Court has the jurisdiction to make an order with respect to what remains of tree 6. 34The next tree is tree 4. This is a Callistemon sp. (Bottlebrush) that like trees 2 and 3 has been substantially pruned away from the applicants' property. Similarly, no order will be made for the removal of this tree. 35Tree 7 is a small to medium sized Magnolia grandiflora growing in the far south-eastern corner of the respondents' property. A portion of the tree overhangs a part of the applicants' rear lawn. The applicants contend that leaves and fruit that fall from the tree create a mess. However, as they were unable to demonstrate what damage it has caused or could cause, the Court has no jurisdiction to make an order for the interference with this tree and the application to remove tree 7 is dismissed. 36Returning to trees 5 and 6, before making any orders with respect to these trees, the Court must consider a number of matters under s 12 of the Trees Act. The relevant clauses in this case are: (a)The trees are wholly located on the respondents' property. (g) The stumps are likely to contribute to the stability of the slope and therefore no order will be made for stump grinding. (h)(i) As already mentioned, the uncontested evidence is that the pathway was installed with little site preparation and given the slope of the site, subsidence is a likely contributing factor to the displacement of slab 11. It was noted that several sections of pavement, well away from the trees in question, also show displacement. (h)(ii) The respondents have removed several trees and all of the foliage that overhangs the applicants' path. 37Notwithstanding the matters in s 12, I am satisfied that unless the stumps of trees 5 and 6 are poisoned, further damage could arise. With respect to slab 11, the uplift, when considered with the subsidence of slab 10 is not sufficient to warrant the relaying of that slab. It is also likely that as any underlying roots of tree 6 disintegrate, the slab will settle. 38Slab 4 is a trip hazard and I consider the roots of tree 5 to be the major (but not sole) contributing factor and therefore some financial contribution by the respondents to the resetting of that slab is appropriate. 39Therefore as a result of the forgoing, the Orders of the Court are: (1)The application to remove the remaining trees along the boundary is dismissed. (2)Within 30 days of the date of these orders, the respondents are to poison the stumps of the trees that have been removed. Repeat treatments may be necessary to ensure the death of the stumps. (3)Within 30 days of the date of these orders, the applicants are to obtain 3 quotes for the lifting and re-setting of paving slab 4. Once lifted, the roots are to be removed and the area made good for the re-setting of that slab. (4)The applicants are to provide a copy of the quotes to the respondents. The respondents have 7 days from the receipt of those quotes to choose a contractor and to notify the applicants otherwise the applicants choose the contractor. (5)The applicants have 120 days from the date of these orders for the work to be completed otherwise order 6 lapses. (6)The respondents are to reimburse the applicants 80% of the cost of re-setting the slab within 21 days of the receipt of a tax invoice for the completed work.