Mekhael v Scurville

Land and Environment Court (NSW)|2021-05-13

Judgment

COMMISSIONER: The applicant, Mrs Mekhael, has occupied her dwelling since about 2010, while the respondents, Mr and Mrs Scurville, have owned their property here since 2006. Between their properties in Quakers Hill, they share a long side boundary which runs from east at the front to west at the rear.
A row of four mature Casuarina cunninghamiana (River She Oak) (the trees), about 11 metres in height, is located in the respondents' property, close and roughly parallel to their rear boundary, and fairly evenly spread along its length of about 15 metres. The specimen at the northern end of this row is growing about 3.5 metres from the common boundary. In her application, Mrs Mekhael also refers to a bush growing closer to the boundary. This is a variety of Schinus sp., which is generally considered to be a weed.
Mrs Mekhael lodged an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), in order to remedy damage that the trees have caused, are causing, and are likely to cause in the near future.

The applicant's case

Mrs Mekhael proposes the Court makes an order for the removal of six trees; three of the four Casuarina's growing along the respondents' rear boundary, and one 'Bush' (the Schinus sp.). The other two trees indicated on the applicant's plan indicate two Casuarina's, T5 and T6, which were previously removed, and stump ground, from near the common boundary.

The respondents' case

Mr and Mrs Scurville also want orders made for the removal of all the trees. They note the high maintenance impost, and cost, to clear gutters and paths, and also claim that the trees represent a risk of injury from falling branches.

The on-site hearing

The hearing commenced, with all parties in attendance, in the respondents' rear yard for an inspection of the trees. Their property is a rear battle-axe block with the driveway along the shared boundary. The dwelling is a small 'granny flat', and the trees are growing on a raised area, supported by a retaining wall, about 1.5 metres higher than dwelling level. This dwelling, and another at the front of the property, are rented out by the respondents, and they live elsewhere.
The relationship between the parties in this case is unusual, relative to most proceedings where an application is made under the Trees Act. Normally, one party seeks intervention with a tree, or trees, and the other resists it. Here, both parties seek the trees' removal.
To inform this situation, the respondents noted the history of the trees. In 2008, about two years after the property purchase, they applied to Blacktown City Council (Council), seeking permission for all 15 trees on site to be removed. Removal permission was granted for four of the trees. Prior to the construction of the rear dwelling, the respondents sought permission from Council, to remove the remaining 11 trees, and, in June 2017, gained approval to remove seven, and to prune the residual four Casuarina's by up to 20% of their canopies. This pruning was completed, along with the removal and stump grinding of the seven approved trees.
These remaining four trees, the subject of this application, are about 20-30 years of age, and appear to be very healthy. When viewed from ground level, the trunks and branches have established a canopy fairly typical of the species, and branches appear to be well attached at junctions. The average useful life expectancy of this species, when grown in this region and environment, would be about 80 years.
The respondents drew my attention to scale leaves, stems, and fruit, which had fallen into gutters, and onto paths and other surfaces near the small rear dwelling. They expressed concern about the trees' roots undermining their dwelling, but I saw no evidence to suggest this was occurring. Mr Scurville also noted the difficulty faced by their tenants, who have young children, as a result of fruit and needles on the ground, and the risk of injury that the trees may present, particularly from falling branches.
The Court moved to the applicant's yard to assess the extent of damage, attributable to the trees, then inside their house for submissions.
Mrs Mekhael noted the needles, sticks and fruit that had fallen and blown onto her yard, particularly around the swimming pool at the rear of the property.
She described the requirement for ongoing maintenance from tree refuse, and noted that her pool filter had been damaged by ingress of needles, in particular, with repairs having been required on three previous occasions.
Mrs Mekhael indicated evidence of cracking to paving and concrete stairs, around the pool, as a result of suckers, which were clearly visible, and were emanating from Casuarina roots.

Jurisdictional requirements - Part 2

With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.
Mrs Mekhael has satisfied the requirement under s 8 of the Act: to serve notice to the respondents more than 21 days prior to the proceedings.
Correspondence within the file notes at least two attempts by Mr and Mrs Mekhael, to organise mediation with the respondents through a Community Justice Centre. The respondents chose not to participate, as is their right, but I am satisfied that the requirements of s 10(1)(a) of the Act have been met; to make a reasonable effort to reach agreement with the owner of the land on which the trees are situated.
The next major test that is posed, by s 10(2) of the Act, is that the Court must be 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.
Should s 10(2) be satisfied, the Court is required to consider the discretionary matters in s 12, so as to provide balancing of the benefits that the trees provide, against the imperatives informing intervention with the trees.

Dropping debris

Both parties note annoyance, and maintenance arising from refuse dropping from the trees. This issue is analysed under property damage, and any claim under the Act with respect to damage only relates to the applicant's land. Therefore, any representations from the respondents, regarding tree refuse on paths, and in gutters, possible damage resulting from tree roots, or any other tree related damage to their property, has no standing in these proceedings.
Further, though both parties may suffer an ongoing maintenance impost as a result of tree debris dropping and blowing onto their property, this does not constitute damage under the Act, and thus no remedy is available.
The issue of maintenance is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at [20], establishes the tree dispute principle: "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." "The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree."
This also applies with respect to refuse that may fall or blow from the trees into the pool. Mrs Mekhael noted three occasions where her pool pump was damaged by blockage of 'pine tree leaves', which a letter from Jim's Pool Care, dated 4 January 2021, confirms. The letter adds that the required repairs were completed under warranty. Particularly where a tree has pre-existed for decades near pools, it is reasonable for associated debris removal to be deemed part of normal maintenance. In similar situations, mesh has been attached to pool skimmers, to minimise penetration of fine needles.
In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [171], Preston CJ states that "annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind", is not "damage to property on the land" within s 7 of the Act, and that: "leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7."
In summary, no remedy is available under the Act in regard to refuse from trees into gutters, onto roofs and paths, or in the pool.

Damage to hard surfaces

With the issue of debris and associated maintenance set aside, the context of damage to hard surfaces requires examination. The steps and paved area around the pool contains many locations where Casuarina suckers are emerging through broken surfaces.
I am not satisfied, however, that these suckers are related to the four Casuarina trees, the subject of this application. Three of the seven trees removed by the respondent around June 2017, were also Casuarinas. Two of these, though now removed, are indicated as (Pine trees), T5 and T6, on the diagram on page 2 of the Tree Dispute Claim Details. These two trees were the closest of all the Casuarina trees to the shared property boundary, and appear to also be in closest proximity to the bulk of emerging suckers in the applicant's property.
The stump grinding of these two Casuarina's lower trunks and below ground root crowns would most likely have precipitated the growth and extensive spread of the root suckers. This is a species normally found within, and next to waterways. When their roots are broken, or disturbed (usually by the force of nature in waterways), these trees possess great capacity to produce new roots and stems, to re-anchor, and re-establish. Since the stump grinding, this process appears to have manifest here.
A report provided by Thomas Engineers, dated 29 January 2021, was submitted by the applicant. It notes the purpose of the inspection informing the report was to "investigate concrete slab around Swimming pool damage caused by existing neighbour's trees", which were identified as Pine trees.
The report found: "It's obvious that these cracks were from the above mentioned trees for the below reasons: 1. Seeds falling from the trees are growing small trees and causing cracks in the concrete as shown in the attached photos in Appendix "A". 2. Boundary fence started to lean due to the growing trees. 3. This type of trees are growing like weeds everywhere causing damages to the surface of the concrete and the sandstone retaining wall started to fall. The report recommended removal of these trees and poisoning of their roots, "to prevent any more damage to the swimming pool or the surrounding structure in the future".
Unsurprisingly, this report from a structural engineer, largely about the trees, is as useful and appropriate as an engineering report, provided by an arborist. Contrary to this report, the root suckers emerging are not developing from seeds falling from the trees, and no evidence has been provided to substantiate that the fence lean has occurred as a result of "the growing trees". Specifically, the fence is leaning towards the respondents' property, rather than the applicant's and I was not taken to any root, stem, or other tree part in contact with, or exerting pressure on the fence.
In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said "something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage".
In Stevens v Russell [2016] NSWLEC 1233 (Stevens) at [40], Commissioner Fakes notes that: "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
In this situation, root suckers are emerging through the concrete, and around the steps, and it is reasonable to view them as a cause of damage. There has, however, been no investigative excavation carried out, or other evidence provided, to directly link the roots of the trees subject of this application, as the source of the root suckers, rather than roots from Casuarina's removed and stump-ground in 2017.
The original construction of walls, stairs, and paved surfaces in the applicant's property does not appear to meet accepted building standards, and it appears that there has been considerable deterioration, and wear and tear, since it was constructed. Even if the root suckers penetrating through the various surfaces were proven to emanate from the trees subject to the application, the ease, and extent of the root penetration, would not have been possible, had the construction been of a higher quality.
The applicant's future plans are relevant in this respect. Mrs Mekhael submitted that her dwelling was being demolished and replaced in the foreseeable future. These works will include replacing the shared boundary retaining wall near the pool. The current wall is constructed from sandstone blocks, with many gaps and fissures, which readily facilitate root occupation. The new wall is to be of reinforced concrete, which presumably will have deep continuous concrete footings so as to meet current building standards. This should act as a de facto root barrier.
Overall, though there is evidence of widespread damage to and around paved surfaces, for which Casuarina root suckers is the cause, based on my familiarity with the behaviour of this tree species, as a result of stump grinding, an absence of any excavation by the applicant, or the provision of other positive evidence, I have not been satisfied that this hard surface damage has been caused by any of the trees, subject of this application.

Risk of Injury

Using the guidance decision published in Yang v Scerri [2007] NSWLEC 592 with respect to injury, the Court considers the risk posed by a tree (or trees) based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.
While the question of damage as a result of the trees related only to the applicant's land, risk of injury covers both properties, and relevant surrounding areas.
Notwithstanding this, there are no obvious characteristics of these trees that cause concern with respect to risk of injury. There is no apparent sign of structural weakness in the trunks, nor indication of faults at branch junctions. Based on their external appearance, the trees appear to be sound and strong.
There is no history of failures of overhanging branches, notwithstanding that some extend over the applicant's, and over nearby public land. No formal risk assessment has been provided as supporting evidence, by either party.
In summary, neither the damage to hard surfaces, the issues of falling refuse and maintenance, nor the determination of tree risk, have met the requirements under the Act, so as to satisfy s 10(2).
Even if I was wrong, and s 10(2) had been satisfied, I am required to consider elements in s 12.

Discretionary matters - s 12

In making an order, the Court considers relevant matters in s 12 of the Act.

The trees are located in the respondents' property, with the closest growing about 3.5 metres from the common side boundary (subs 12(a)).
Removal or pruning of the trees would require consent from Council under the Environmental Planning and Assessment Act 1979 (subs 12(b)).
Pruning should not occur as part of 'normal' maintenance, but should be undertaken only when necessary to achieve a required purpose, and thus not compromise tree health. It should be selective, and heavy pruning of overhanging branches should be avoided. Councils often restrict the annual volume of pruned material to no more than 10% of the canopy, and require it be undertaken by an AQF level 3 qualified arborist, so as to reduce negative impacts from pruning. Ideally pruning frequency should be minimised, and all works shall comply with AS4373:2007 Pruning of amenity trees (subs 12(b2)).
All trees to be retained contribute to privacy, to protection from the harsh western sun, from wind, vehicle noise, to the amenity of the respondents' property, to the natural landscape, and the scenic value of the land on which it is situated (subss 12(b3), (e)).
Particularly when viewed from the street behind the applicant's property, one can appreciate the significant intrinsic public amenity that these trees provide, and also how healthy they appear (subs 12(f)).
Being quite large examples of native species, growing in a region that has suffered extensive vegetation clearing, its flowers and fruit, trunks and branches could be expected to provide food and or shelter for local fauna, and therefore it is likely to make a fairly significant contribution to local biodiversity (subs 12(d)).
Given the slope of the land of both properties, and the different levels on which their houses and yards are located, the trees are highly likely to be providing benefit to soil stability, and to the absorption of water and the reduction of run off (subs 12(g)).
Subsection 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. The age of the existing retaining wall and concrete and paved surfaces, and obvious inadequacies in their construction have been considered in this respect.
The fact that 'the tree was there first' is considered within the judgment, and falls under subs 12(j), as a matter that the Court considers relevant in the circumstances of the case.

Conclusions

The applicant addressed various elements of damage, and tree risk, so as to prove her case. The issue of the dropping of refuse and the annoyance, and cost of associated maintenance was resolved with consideration of the Tree Dispute Principle in Stevens.
As to the hard surface damage, insufficient reliable evidence was produced by the applicant, to display the nexus between the trees, the subject of this application and this damage, in the light that it was more likely for this damage, at least primarily, to relate to previously removed stump ground trees, T5 and T6. This element was thus also dismissed.
No evidence was produced by either of the parties, to justify the risk associated with the trees being deemed anything higher than low. This is an acceptable risk.
As a result of these factors, s 10 (2)(a)(i) of the Act has not been satisfied, and the Court has no powers to make orders.
Even if I had found s 10 (2)(a)(i) to be satisfied, given the extensive range of environmental services these trees provide, in an area generally lacking in tree cover, in contemplating orders, I would seek intervention other than tree removal, to address the damage issue.
The planned site changes, which include of a new retaining wall, provide this opportunity, provided it is constructed to required current building codes. This should also perform the role of a root barrier, deflecting root ingress into the applicant's property.
As a consequence of the foregoing, the Court orders that the application is dismissed. ………………………. J Douglas Acting 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: 20 August 2021

At a glance

Court

Decision date

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Judgment (11 paragraphs)

Parties

Cases Cited (6)