Owners Corporation SP 35807 v Coolican & Ors

KEY ISSUES: TREES (NEIGHBOURS) :- Maintenace of jointly owned tree; damage; compensation; dividing fence; pruning.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Dallas v Watson [2009] NSWLEC 1056

APPLICANT Dr Ian C Elder (agent) LEGAL REPRESENTATIVES:

RESPONDENT Mr A Pickles (barrister)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Acting Commissioner: A large, old Camphor laurel tree (the tree) is growing at the back fence of 3 Ormond Street, Ashfield (the property). The trunk of the tree is about two-thirds on the property and one-third on the adjoining land to the south. The four owners of the property are represented at the hearing by Julie Tervady and the barrister Mr Pickles who spoke as one, and I refer to them as Coolican.

2 Coolican purchased the property 6 years ago. The tree is an attractive feature in their backyard, and screens them from the unit block on the land to their south, and also from the unit block on the land to their south-east.

3 The Owners Corporation SP 35807 is the owner of 81 Liverpool Road, Ashfield, the adjoining land to the south. A block of nine units which was built about 30 years ago stands on the land. Dr Elder, one of the owners and a resident of 81 Liverpool Road, Ashfield, represented the Owners Corporation SP 35807 which I refer to as the Strata.

4 The crown of the tree overhangs the north-eastern area of the backyard of the Strata where there is a concrete driveway and carparking area, and a metal carport. The southern edge of the crown of the tree is almost touching the unit block. The concrete carparking area extends to about 1 m from the back fence. The area between the concrete and the fence is bare earth. A partly exposed root of the tree about 100 mm diameter goes directly under the carparking slab. A similar root slightly to the west goes to about 50 mm from the concrete then turns to the west and is above ground for a metre or so running parallel with the edge of the concrete before going underground.

5 The northern edge of the concrete slabs near the tree appear to be lifted between 50 mm and 100 mm. The eastern two slabs have cracked from east to west about a metre from the northern edge, the crack starting at a sewer inspection opening near the eastern boundary. These two slabs have sunk along the crack line increasing the lift at the northern edge. No concrete has been removed to investigate the damage or what part the tree roots may have in that damage.

6 The Strata makes an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) for compensation due to property damage, to rectify or prevent property damage, and to prevent injury to people. It seeks orders for: o Removal of the tree in a careful way, not to damage the carport underneath; o Prevention of future damage to the fence, carport, concrete vehicle stand area, sewer line, and building; o Prevention of the possibility of injury to persons by a large falling tree branch; o Removal of all tree roots and poisoning of exposed roots to prevent new shoots proliferating; o Removal of that part of the fence damaged by the tree, removal of debris and roots under the fence, and replacement of the damaged part of the fence; o Compensation of $880 for the cost of fence replacement if that work is carried out by the Strata; o Compensation of $8,140 for the cost of replacement of the carport and concrete vehicle stand area if that work is carried out by the Strata; o Compensation of $7,700 for the cost of tree removal if that work is carried out by the Strata o If the tree is not removed, pruning of a live branch on the southern side of the tree near unit 3. 7 The Strata says that its unit building is about 30 years old, but the age of the carport and concrete areas is not known.

8 The Strata first gave notice to Coolican concerning damage being caused by the tree, in a letter dated 25 October 2004.

9 The parties agree that the line of the dividing fence is approximately on the common boundary. A 1996 survey of the Coolican property shows the dividing fence on the common boundary at the eastern end, and 0.07 m beyond the common boundary at the western end. The parties agree that the trunk of the tree is two-thirds on the Coolican property and one-third on the Strata property, and it appears so to me. On that basis, the trunk of the tree is situated principally on the Coolican property, meeting s 4(3) and s 7 of the Act. Consequently, as I find that the tree is a "tree" within the meaning of that term in s 3(1) of the Act, there is an application that the Court may determine.

10 When assessing an application under the Act, the Court must be satisfied that one or more of the four tests in s 10(2)(a) and (b) of the Act are met by the tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property on the land? Is the tree now causing damage to the applicant's property on the land? Is the tree likely in the near future to cause damage to the applicant's property on the land? Is the tree likely to cause injury to any person? 11 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders?

The tree 12 Mr Hughes, Acting Tree Preservation Officer for Ashfield Municipal Council attended the hearing as an observer, and provided helpful information regarding the tree and Council's Tree Preservation Order. He says the tree is likely to be about 60 years old, and that it is protected by the Council's Tree Preservation Order because it is taller than 10 m and has a trunk diameter exceeding 450 mm.

13 The Strata has provided a tree report dated 28 May 2009, by Mr W. Devjak an AQF Level 3 arborist. I agree with the report to the extent that the tree appears to be in relatively good health, deadwood is minimal, and there do not appear to be any major structural weaknesses. The report states that fixing the fence would not require removal of the tree as a new fence could be built on the boundary line up to the trunk of the tree. With regard to repair of the concrete slab under the carport, it recommends caution not to damage the root system of the tree, and that excavation should be completed under the consultation and supervision of a consulting arborist.

Findings 14 I find, based on my own observation, that the tree has caused, is now causing, and is likely in the near future to cause damage to the dividing fence. On that basis the tree meets the three tests in s10(2)(a) of the Act. . 15 Dr Elder, who has lived at 81 Liverpool Road, Ashfield since 1997 says that the fence looked about the same in 1997 but palings are now falling off near the tree, and though the fence may have already been pushed up near the tree in 1997, the capping was not split away. Although the Strata is only claiming that the tree has damaged the eastern 8 m of the fence, I observed that the whole length of the fence is in an old and dilapidated condition.

16 On the basis of my own observations and Mr Devjak's report, I find that a new fence can be installed on the boundary either side of the tree. I find that damage to the fence is not sufficient reason to order removal of the tree. I will order that a new fence be installed either side of the tree along the eastern 8m of the common boundary, as that appears to be the portion of fence that has been damaged by the tree. However, I find that as the whole fence is near the limit of its useful life, and the tree is owned by both parties, the eastern 8 m of fence should be replaced at equal cost to both parties.

17 I find on the basis of my own observation, and on the balance of probability in relation to those areas that cannot be seen, that the tree has caused, is now causing, and is likely in the near future to cause damage to the concrete of the four parking bays on the eastern side of the Strata backyard, and to the Strata carport. On that basis, even though I consider that the tree may not be the only cause of damage, the tree meets the three tests in s10(2)(a) of the Act.

18 Dr Elder did not know when the concrete and the carport were installed, however, he says that in 1997 the concrete of the eastern car spaces looked like it does now but was less raised with less gap under. He says that the crack across the two eastern concrete slabs occurred, and the horizontal gap between those two slabs increased, in the last two years. My own assessment is that the concrete and carport are a similar age to the unit block. Based on the nature of the cracking and movement of the concrete, I consider that it may have inadequate or no reinforcing steel. I observed that there are drain grates in the concrete area between the car spaces and the unit building, and that the concrete in the backyard slopes to those drains. On that basis I consider that the parking spaces were installed with some slope up towards the tree, and that not all of the "lift" of the concrete has been caused by the tree. I observed that the carport posts are bolted onto the top of the concrete slabs, and that the damage to the carport is simply the uneven lifting of posts with the movement of the concrete.

19 I observed that concrete paving in areas of the Strata property away from the tree appear to have moved horizontally and or vertically since they were installed. The parties agreed that the local soil is a swelling clay, and the Strata agreed that the type of soil, other trees, and drainage problems may be the cause of some of the movement of that paving. On that basis I find it probable that some portion of the damage to the concrete parking area near the tree is also caused by the clay soil and inadequate drainage.

20 A current application to Council to install concrete so close to the tree is likely to be refused, and the tree required to be protected from any proposed works in accordance with AS 4970-2009 Protection of trees on development sites. Based on this and the other reasons stated above, I will not order removal of the tree because it has damaged the concrete and carport, or to allow installation of new concrete. Rather, I find that if orders are made for replacement of the concrete, those orders should include protection of the tree and a greater distance of the concrete from the tree.

21 No plumbers invoices, history of pipe blockage, or evidence that the tree has blocked the sewer pipe has been provided. On that basis I do not find that the tree has caused, is now causing, or is likely in the near future to cause damage to the sewer.

22 I observed that over the Strata property, the tree has a dead branch caught in the eastern side of the crown, two branch stubs that are partially decayed in the western side of the crown, and a number of dead branches up to 50 mm thick and 3 m long. I find, considering the size of the deadwood and the reported frequent use of the parking area and nearby grass and clotheslines by the occupiers of the units, that the caught branch, dead branches and decayed branch stubs are likely to cause injury to a person. On that basis the tree meets the test in s10(2)(b) of the Act. However, I find that removal of the caught and dead wood will prevent injury to people. On that basis I will not order removal of the tree, but will order pruning out of the caught and dead wood.

23 Coolican drew my attention to Dallas v Watson [2009] NSWLEC 1056 where I ordered that the cost of the works be shared by the parties in the same proportion as they had ownership of the tree, with ownership based on the proportion of the trunk that was on each property, measured at ground level. Coolican requested that I adopt the same approach in this case with regard to the cost of damage caused by the tree.

24 The tree in Dallas v Watson had dropped very large branches and was likely to drop further large branches due to its nature. The likelihood of damage and injury could not reasonably be prevented by any intervention other than removal. In that case I ordered removal of the tree, and I found it appropriate to divide the cost of tree removal, which was the only work ordered, on the basis of the proportion of joint ownership of the tree. The present case differs in that there is no cost of tree removal to be shared, and the applicant claims compensation for damage to its structures, damage which I find has causes other than the tree. Therefore, even if I were to apply the ownership proportion to property damage repair costs in this case, I would further adjust the responsibility for those costs on the basis of other relevant matters and contributing factors.

25 At the hearing, I discussed with the parties the following approach I might take regarding an order for sharing of costs for replacement of the concrete and carport on the Strata property. In accordance with the common practice of the Court, I would find that no compensation is due for damage that occurred prior to the Strata giving notice of the damage to Coolican. In this case notice was given in October 2004, and my assessment is that about one third of the damage has occurred since notice. Also, I would find that any compensation should be discounted on the basis of general wear and tear since installation of the existing structures, and my assessment is that wear and tear has decreased the value of the structures by about half. If compensation was discounted on the basis of shared ownership of the tree, that would be a further decrease by one third. The original adequacy of the structures for their purpose was discussed at the hearing, but I do not have sufficient information to make a finding in that regard. Thus, if works were ordered to replace the concrete or carport on the Strata property, Coolican might be ordered to compensate one ninth of the quoted costs, on the following basis: Quoted cost x 1/3 ( 1/3 of damage has occurred since notice) x 1/2 ( Asset value reduced to half by 30 year wear & tear) x 2/3 ( tree is 2/3 Coolican ownership ) ( ⅔ x ⅓ x ½ = 1/9 )

26 With regard to pruning of the dead wood from the tree, that work has not been costed. I am not comfortable that the decision in Dallas v Watson should be applied to the costs of normal maintenance on each side of the boundary for a tree with joint ownership. I find that such normal maintenance of the tree should generally be carried out by the owner of the property under that side of the tree. On that basis, the cost of removing the dead wood should in this case be met in full by the Strata.

27 Similarly, with regard to pruning of the southern branches to clear the Strata building, I find that cost should be met in full by the Strata. Considerations 28 After I advised my preliminary findings, I gave the parties a short time to consider their positions. The Strata advised that it wanted the matter determined rather than withdrawing the application, but requested that any orders for repairs of the Strata property give carriage for those works to the Strata, and that the orders lapse if the works are not carried out within one year. Coolican also requested that the matter be determined on the present evidence and submissions.

29 I note that the Strata have provided three quotations for replacement of the fence, but from discussion at the hearing I am not confident that the quotations are for replacement of the fence with a similar 1.8 m tall lapped and capped timber fence.

30 Similarly, the Strata have provided two quotations for the concrete and carport replacement, but I am not confident that the works quoted address the full extent of the works that need to be done.

31 The quotation selected by the Strata for the fence replacement is $880. On the basis that each party should pay half, the cost to Coolican would be $440.

32 The quotation selected by the Strata for concrete and carport replacement is $8,140. On the basis that Coolican should pay one ninth, the cost to Coolican would be $904.

33 The Strata did not present any alternative plans for works such as relocating the parking at a greater distance from the tree to avoid damage to the roots and future damage to new concrete. No measurements were taken, but my assessment is that the parking area can be moved at least 1 m further from the tree without restriction on the driveway space. However, without evidence that the driveway and parking would still work comfortably and that the limited additional space would prevent future damage, I do not find it appropriate to order that the concrete parking spaces be replaced at a greater distance from the tree.

34 With regard to the tree, I note that Coolican agreed to give consent for the Strata to make an application to the Council to carry out pruning, but I am not confident that would ensure that the tree work is carried out in a timely manner.

Conclusions 35 Although I have established some basis for the apportionment of the cost of works, I am not comfortable with ordering that the Strata carry out the quoted concrete and carport works or alternative specific works that I might devise, or that the Strata develop new plans and have the ability to claim a set proportion of those works. Also, if the Strata does not carry out the works within a year, the compensation would lapse along with any orders that it do the work. Therefore, I do not find it appropriate to order that Coolican pay a proportion of the replacement of the concrete and carport.

36 I find in this case, that the required works can best proceed if each party has full responsibility for specific works.

37 I find that the apportionment of costs in this case is best resolved by ordering Coolican to carry out additional works that are likely to have a somewhat similar cost to one ninth of the cost of concrete and carport repairs claimed by the Strata.

38 On that basis, I will order that Coolican replace the eastern 8 m of the dividing fence, and prune the tree, and that Coolican meet the full cost of those works, with no other compensation to the Strata.

39 I will not order any works be carried out to repair or replace the concrete or carport on the Strata property. The Strata may carry out suitable concrete and carport works in its own time at its own cost. Orders 40 The application for removal of the tree is refused, but the application is upheld in part and the Court makes the following Orders: 1. The Respondent (Coolican) shall remove the large dead branch caught in the eastern side of the crown of the tree over the Applicant's (the Strata) property, remove from the crown of the tree over the Strata property all deadwood with a diameter greater than 20 mm at its point of attachment, and prune branches on the southern side of the crown so that the tree is at least 3 m clear of the unit building. This work shall be completed by 15 December 2009 at the Respondent's cost. This work shall be carried out by an AQF Level 3 arborist having suitable insurances, and the work shall be done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998) ; 2. The Respondent (Coolican) shall replace the eastern 8 m of the dividing fence with a new 1 . 8 m tall lapped and capped timber fence, and shall remove that section of old fence and make good the ground on the Strata side of the new fence. This work shall be completed by 31 March 2010 at the Respondent's cost, and be carried out by suitably skilled and insured contractors; 3. The work described in 1. and 2. above shall take place at reasonable times, and on at least 7 days notice to the Strata; 4. The Strata shall grant access over its property to carry out the work described in 1. and 2. above, and shall ensure a suitable area is kept clear for the work in 1. and 2. above to take place.

      Peter Thyer
      Acting Commissioner of the Court

The formal orders may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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