MacPhail & anor v Ware & anor - [2012] NSWLEC 1230 - NSWLEC 2012 case summary — Zoe

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MacPhail & anor v Ware & anor

[2012] NSWLEC 1230

Land and Environment Court (NSW)|2012-08-15

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2012-08-15

Catchwords

TREES [NEIGHBOURS] Damage to property
risk of injury
trees that have been the subject of a previous application
have the circumstances changed

Source

Original judgment source is linked above.

Catchwords

TREES [NEIGHBOURS] Damage to propertyrisk of injurytrees that have been the subject of a previous applicationhave the circumstances changedevidence is not "fresh evidence"

Judgment (17 paragraphs)

[1]

Judgment 1COMMISSIONER: This application, made under the Trees (Disputes Between Neighbours) Act 2006 ("the Act") concerns trees and damage that were the subject of a previous application before the Court, as well as other trees that were not the subject of that application. 2Mr and Mrs MacPhail own and live on their Illawong property, which has a battleaxe formation. Their dwelling is accessed via a driveway that, for its approximately 60-m length, runs alongside the common boundary with Mr and Mrs Wares' property. 3The MacPhails applied to the Court in 2008, under the Act, seeking orders regarding three trees and damage caused by those trees. The judgment (MacPhail v Ware [2008] NSWLEC 1213) of Moore C and Thyer AC included orders for removal of a tree and payment of some compensation. That judgment was included as evidence by the applicants. 4The MacPhails now seek orders for two of those trees again, as well as for eight additional trees. The written application did not include a clear description of orders sought, so the MacPhails were asked to clarify these during the hearing, the outcome of which is the following list (I have added tree numbering for ease of reference):

Removal of a Jacaranda (T1) to prevent damage to the driveway;

[7]

The Liquidamber (T7) 19The Liquidamber was part of the 2008 application. 20The MacPhails had the Liquidamber removed in October 2008 in accordance with the orders of the Court. They received compensation from the Wares for part of the cost of tree removal, as per the orders of the Court. The parties are agreed on those facts. 21After the Liquidamber was removed, the Wares undertook to remove its stump and roots within their property. Roots within the MacPhails property have not been removed and now have suckers shooting from them. The Wares say that this shows the stump was not poisoned as it should have been if the tree had been removed by a suitably qualified and professional arborist. The orders of the Court were to remove the tree to ground level; there were no orders for poisoning the stump. 22The MacPhails say the suckers create a nuisance and, furthermore, growth of suckers indicates that Liquidamber roots on their property are still active and will cause further damage to their property. Mr Laverty states on page 7 of his report that Liquidamber roots may "still be causing damage to the driveway." 23The MacPhails have had the boundary surveyed since 2008 and say that white survey pegs now show that the dividing fence is not on the boundary and that the Liquidamber, at the base of its stem, was entirely within the Wares' property, not straddling the boundary as described in the 2008 judgment of this Court. In response, the Wares state that the parties agreed when the fence was first constructed that it was on the surveyed boundary. When the Wares had to upgrade the fence to conform to swimming pool safety requirements they only replaced the panels, using the existing posts that were on the previously agreed and surveyed boundary. A panel of the fence was bent around the stem of the Liquidamber, which straddled the boundary as originally surveyed. 24The large concrete slab, approximately 29 m2 in area, that forms part of the driveway nearest the location of the Liquidamber, is lifted significantly, approximately 10 cm at one end relative to the adjacent slab. The MacPhails say this was caused by the Liquidamber's roots and that future root growth will cause further lifting. 25Mr Laverty collected root samples near the driveway and Mr Ford identified them as Liquidamber roots. 26The MacPhails want the Liquidamber roots on their property removed at the Wares' expense. They also want compensation for relaying of the concrete slab. They have obtained a quote (exhibit G) of $3,696 for this work.

[13]

The Fiddlewood (T6) 39Firstly, I do not accept Mr Laverty's evidence that lopping encourages root growth. In my experience, lopping of the crown encourages shoot growth within the crown and root growth is, if anything, reduced, at least for a while. 40There are no signs that damage to the driveway has increased since 2008. The MacPhails did not explain why they had not included this tree in their 2008 application. Photographs provided by the Wares in Exhibit 1 show this area of the driveway. It is apparent that a row of Cypress trees grew on the MacPhails' land in the vicinity of this damaged section of driveway. Those trees have since been removed by the MacPhails. The photos also show that the MacPhails had placed pot plants on the lifted section of concrete. The Wares contend that this was done to prevent people driving or walking there, thereby avoiding injury or damage. They say the damage was present in 2008, and photographs indicate that this is likely. The MacPhails had the opportunity to include this tree in their 2008 application but chose not to. This does not prevent them from making an application regarding this tree now, but in my view it would be an unfair burden on the Wares for the MacPhails to make repeated claims for compensation for the same driveway damage, but to include a new tree each time. 41Although it is apparent that one root near the driveway is from the Fiddlewood, the likelihood of several other trees having a substantial amount of root growth beneath the driveway means I am not satisfied that the Fiddlewood has caused the damage. However, even if it has contributed, thereby at least enlivening the Court's jurisdiction, the high likelihood of other factors contributing to the damage would be something I must consider at s 12(h)(i) of the Act. At s 12(b3) I must also consider the tree's contribution to privacy. As a consequence of such considerations, I would not make orders for interference with the Fiddlewood. This element of the application is dismissed.

[14]

Liquidamber (T7) 42Regarding the MacPhails' claim that, based on their latest survey, the Court's 2008 decision regarding apportionment of costs in relation to the Liquidamber was incorrect, I turn to Moore SC's findings in Zangari v Miller (No 2) [2010] NSWLEC 1093. The Senior Commissioner considered a second application regarding a tree that had already been the subject of an application. Paragraphs (2) to (6) of that judgment are included below. 2) The two expert reports that are relied on by the applicant in these proceedings are exactly the same documents that were relied on in the proceedings in January 2010. The only physical difference that arises on this occasion is that the tree's roots have now been exposed by the removal of a number of elements of a concrete slab - that slab could have been removed prior to the hearing in January. Mr Zangari indicated that there have been no changes to the tree since then. 3) Mr Zangari, one of the applicants in both sets of proceedings spoke on behalf of himself and his wife. He suggested that there were medical reasons why he personally had not removed the slab on the last occasion. There is nothing in the Commissioner's decision that indicates that that matter was raised on that occasion. Whether or not that was applicable at that time, however, is a matter of irrelevance because there is no evidence in any of the material filed in these proceedings (that were subject to the standard directions) nor anything said this morning that establishes that it would have been impossible for Mr Zangari to have had somebody else remove the slab and expose the roots prior to the last occasion. 4) This hearing is proposed to proceed to determination on evidence that is in identical terms - relying on the same expert reports - as was the occasion in January of this year but with the tree roots now exposed. 5) There is no "fresh evidence" (within the meaning of that term as considered by appellate courts - including the High Court). There is certainly no reason to permit Mr Zangari now to rely on evidence that could otherwise have been available on the last occasion. 6) There is no basis upon which I should interfere with the finality of the earlier proceedings. This further application constitutes an abuse of process. As a consequence I do not intend to permit this application to proceed. The application is dismissed. 43A change in the situation is required, not merely a change in the evidence regarding that situation. The MacPhails' property boundary has not moved, only the evidence as to where that boundary is located. The MacPhails did not provide this evidence at the 2008 hearing, although they could have obtained such evidence at the time. The latest boundary survey is not "fresh evidence". The MacPhails cannot, therefore, make a new application regarding compensation for damage that was present in 2008. 44The situation regarding the Liquidamber has changed, however, since 2008. The tree has been removed as per the Court's orders. Suckers are shooting from roots within the MacPhails' property. Therefore I need to consider whether these changes have resulted in damage or have given rise to a risk of damage or injury. 45Mr Laverty says the Liquidamber roots on the MacPhails' property are still active, which I accept, as suckers can be seen shooting from them. He concludes that the roots are therefore causing further damage. However I note that the suckers are small and have been cut previously. There is not enough shoot growth to support any significant growth in girth of the roots, so I reject the proposition that Liquidamber roots have caused further damage since 2008, or that they are causing damage, or are likely in the near future to cause damage. 46The growth of suckers, in itself, is not damage and the suckers are unlikely to cause injury. The suckers do not engage the Court's jurisdiction. The MacPhails can cut them easily. The Wares have removed the entire stump and all roots of the Liquidamber from within their own property. There is nothing to prevent the MacPhails doing the same. 47As a consequence of the above this element of the application is dismissed.

MacPhail & anor v Ware & anor

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (17 paragraphs)

Parties

Cases Cited (4)

Cited By (1)