Marsh & anor v Griffin & anor

Land and Environment Court (NSW)|2013-11-13|Before: Craig J

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Horsley within the Wollongong local government area. 2The applicants contend that three trees growing on an adjoining property have caused or could potentially cause damage to their property or injury to anyone on their land. 3They are seeking orders for the removal of the three trees and rectification of damage to a fence and pathway, all at the respondents' expense. 4In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This states that the Court must not make an order unless it is 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. 5The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. 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...". 6As the applicants are concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on, amongst other things, the characteristics of the tree/s, the circumstances of the site apparent at the time of the hearing and the history and evidence of past failures. 7If any of the tests in s 10(2) are met for any of the trees, the Court's powers to make orders under s 9 are engaged. Section 9 enables the Court to make any orders it thinks fit to remedy, restrain or prevent damage to an applicant's property or injury to any person. This in turn requires consideration of relevant matters under s 12 of the Act. 8Each of the trees about which the application is made is considered in turn.

Tree 1 (T1) 9This is a mature Cupressus macrocarpa (Cypress) growing very close to the metal fence that divides the parties' properties. 10As neither party engaged an arborist to provide independent expert opinion, I rely on the arboricultural expertise I bring to the Court. 11I observed the tree to be healthy with no obvious structural defects. There is evidence of recent and past pruning of branches, presumably branches that overhung the applicants' roof. While there are still some overhanging branches these appeared healthy with normal attachments. The crown-lifting appears to have provided adequate clearance between the branches and the dwelling roof, sufficient to avoid contact with it in wet and or windy conditions. 12The respondents' solicitor stated that his clients engage an arborist to inspect and or maintain the trees every six months. 13The applicants raised issues of leaf litter and small branches falling onto the roof but stated that no actual damage had been caused. Similarly, while branches had touched the roof in the past, no damage was caused. 14The applicants' main concern is that roots from this tree have vertically displaced a fence panel and lifted two slabs of the concrete path adjoining the fence. 15I observed the tops of several woody roots growing beneath the fence and adjoining the lifted sections of path. The roots were consistent with being from a Cypress, and given their location, I am satisfied they are from T1. 16In regards to the damage, the fence is slightly displaced but remains fully functional; the impact is cosmetic rather than structural. The concrete slabs are noticeably lifted but are not cracked and the pathway remains functional. 17While the damage at this stage is not severe, in my opinion unless measures are put in place to manage the interaction between the roots and the path, real damage will eventuate. 18Therefore I am satisfied to the extent required by s 10(2) that Tree 1 has caused, and will continue to cause, damage to the applicants' property. 19In considering what orders should be made the following considerations under s 12 are relevant:

The tree is growing very close to the applicants' property. The tree abuts the dividing fence and a relatively narrow pathway separates the fence from the applicants' dwelling.
The exposed tops of the roots and their proximity to the base of the tree indicate that they are highly likely to be structural roots;
If the tree were further away, root pruning and the installation of a root barrier may be appropriate;
It is not economically feasible or practical to require an elevated pathway.
Limiting further damage requires root pruning; given the size, location and type of roots, this could destabilise the tree and compromise its health;
While the tree contributes to the amenity of the respondents' property, and to some extent the amenity of the street, these benefits do not outweigh the root management issues.
Wollongong City Council has given permission under the Tree Preservation Order for the removal of T1 (see a discussion of the roles of the council and the Court in Ghazal v Vella (No 2) [2011] NSWLEC 1340). 20After considering the situation I consider that in the circumstances, removal of the tree is appropriate. 21Orders will be made for the tree to be cut to ground level. In order to facilitate the removal of the roots, the fence panel adjacent to T1 is to be unbolted and temporally removed. A concrete cutter or similar is to be used to cleanly sever the roots of T1 that adjoin the section of pathway beneath that panel of fence. The stump is then to be ground to a depth of at least 300mm. The panel of fence is then to be put back.

Tree 2 (T2) 22This tree is a mature Eucalyptus sp growing at the rear of the respondents' property. It is some distance from the applicants' property. 23A photograph included in the application shows a branch from T2 resting on the corner of the roof of the applicants' dwelling and a garden shed at the rear of their property. This branch has been removed. 24While the branch touched the roof of the house and the shed, the applicants stated that no damage had been caused by it. 25I observed that while there remains a small degree of overhang above the garden shed, nothing in the tree's structure or branch attachment leads me to conclude that future damage or injury is likely. 26Therefore, I am not satisfied that any of the tests in s 10(2) are met and therefore no orders can be made for any intervention with tree 2.

Tree 3 (T3) 27Tree 3 is another mature Cupressus macrocarpa growing close to and to the west of T1. Like T1 this tree appears healthy with no obvious structural defects and shows signs of past and recent crown-lifting above the applicants' dwelling. This tree is growing further away from the dividing fence. 28The fence and the pathway closest to this tree are in good order and show no signs of damage. However the applicants remain concerned that roots may be under the path and may in the future cause damage to it or to the sewer beneath the path. 29As stated previously, there must be a demonstrated nexus between the tree and the alleged likely damage; that is, something more than a theoretical possibility. 30Therefore, absent any evidence to substantiate the applicants' concerns, s 10(2) is not satisfied and no orders can be made for any intervention with this tree. 31As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.

Rectification 32The applicants are seeking orders requiring the respondents to rectify the damage to the fence and the pathway caused by T1. 33As noted above, while the fence panel closet to T1 has been slightly lifted by the roots, the actual damage is negligible or de minimus and its rectification does not warrant an order of the Court. However, in order to deal with the roots, the panel will need to be unbolted, temporarily removed and then reinstated (see para [21]). 34In regards to the pathway, the applicants have a quote for about $1,900 for the removal and replacement of three sections of path. Two sections are those lifted by T1 and the other adjoining slab to the northwest is opposite T3. The applicants contend that removing this slab would enable them to determine whether or not roots from T3 are beneath that slab. 35The process of discovery should be undertaken prior to a final hearing. While in special circumstances the Court may grant an adjournment to enable further investigations, there must be sufficiently strong grounds for doing so and due process must be followed. 36The applicants have not sought leave to do this but the orders they seek would have the same effect, and at the respondents' expense. 37Given the absence of any damage to the slab to the northwest of the lifted sections, and my findings for T3, no orders can be made for any removal and replacement of this section. 38I have noted that the two lifted slabs are functional and not cracked. The pathway is a secondary side passage. In the circumstances, I am not convinced that these sections should be replaced. Once the tree is removed and the roots cut, roots beneath the slabs will gradually disintegrate and the slabs should subside.

Orders 39After considering the evidence and submissions, the Orders of the Court are: (1)The application is upheld in part. (2)Within 30 days of the date of these orders the respondents are to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the easternmost Cupressus sp (T1) to ground level. The roots and stump are to be cut and ground in accordance with the details given in paragraph [21] of this judgment. This includes the temporary removal and reinstatement of one fence panel. (3)The work is to be undertaken in accordance with the WorkCover NSW Code of Conduct for the Amenity Tree Industry. (4)The applicants are to provide all necessary access for the purpose of quoting and for the safe and efficient carrying out of the orders in (2) on at least two days notice.

Judy Fakes 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: 13 November 2013

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