Owners Strata Plan 40546 v McRae

The onsite hearing

1. The applicant was represented at the hearing by Mr C Koikas, of Counsel, who was accompanied by Mr Cardellis, Engineer, of Van der Meer Consulting, and property owners. The respondent was self-represented.
2. The applicant proposed the following (summarised) orders: 1. The respondent shall remove the Robinia tree from his land to remedy damage to the applicant's property, restrain and prevent further damage, and prevent injury to persons on the applicant's property. 2. Alternatively, the applicant shall be authorised to access the respondent's land to remove the Robinia tree to remedy damage to the applicant's property, restrain and prevent further damage, and prevent injury to persons on the applicant's property. 3. The respondent shall bear all costs associated with the removal of the Robinia tree including any costs incurred by the applicant for the removal of the Robinia tree on the respondent's property.
3. The applicant relied on expert reports from: 1. Mr Brian Cardellis, Structural and Civil Engineer, of Van der Meer Consulting, dated 20 January 2023 (Exhibit C). 2. Mr David Gowenlock, Consulting Arborist (AQF level 5), of Seasoned Tree Consulting, dated December 2020 (Exhibit E).
4. The tree was inspected initially from the respondent's land, where I confirmed that it was growing closely adjacent to the common boundary, with buttressing roots impacting the timber boundary fence. The tree's canopy spread was about 12 m and I concurred with Mr Gowenlock's opinion that it appeared to display good health and fair structural characteristics.
5. The Court moved to the applicant's land, where I inspected the primary crack precipitating from the edge of the concrete slab immediately adjacent to the tree base. I noted that the upward heaving of the slab was greatest in proximity to the tree, and that differential lifting of the concrete at secondary cracks further from the tree had resulted in a minor trip hazard. Some surface roots and root suckers were visible in crack openings at this trip hazard, and I detected six locations where root suckers were emerging between slab sections and at other smaller cracks, some of which were many metres from the tree base.

Jurisdictional requirements

1. With respect to s 7 of the Trees Act, 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.
2. As the root buttress appeared to be growing under the boundary fence, and primary roots which grew along the boundary had thickened across the edge of the applicant's driveway, some clarification was required, as the jurisdiction of the Act applies only to a tree "that is situated on adjoining land".
3. When trees straddle a boundary, for the purposes of the Trees Act, the tree is situated on adjoining land if it is wholly or principally on that land (s 4(3)). The court has previously found, as in Dive v Lin [2017] NSWLEC 1348, that to be principally situated on land, more than 50% of the area of the tree's stem, where it enters the ground, must be on that property.
4. I was satisfied at my inspection that at least 90% of "the tree's stem, where it enters the ground" was positioned on the respondent's land. The tree is thus principally situated on the respondent's land, such that the application may proceed. Neither party disputed this finding.
5. Section 8(1)(a) of the Trees Act requires the applicant to give at least 21 days' notice of the lodging of the application and the terms of any order sought to: the owner of the land on which the tree is situated , and any relevant authority that would, in accordance with section 13, be entitled to appear in proceedings in relation to the tree, and any other person the applicant has reason to believe will be affected by the order.
6. A Statutory Declaration (Exhibit G) was provided by Ms T Sabatino, a Licenced Process Server, which described attempts made to serve all relevant documents pursuant to the application on the respondent at his home address, on seven occasions between 28 September 2022 and 8 October 2022. Though the respondent noted that these attempts for service of documents were made during daytime business hours when he was at work, Ms Sabatino claimed that on two occasions, the respondent's son answered the door but declined to accept her calling card. Subsequent attempts made to serve the application documents on the respondent encountered additional difficulties, but service was finally achieved.
7. An affidavit of Service by Mr Man Nok Li, Solicitor, dated 18 November 2022, confirmed that all relevant documents pursuant to the application, including both Expert reports noted above at [6], were provided to Inner West Council on 27 September 2022, and to the Heritage Council of NSW on 15 November 2022.
8. Section 8(3) of the Trees Act provides the Court with powers to waive the requirement to give notice or vary the period of notice under this section if it thinks it appropriate to do so in the circumstances. Mr Koikas sought leave for the Court to waive the requirement to give the respondent at least 21 days notice of the lodging of the application and the terms of any order sought because of the service difficulties encountered over a protracted period.
9. Given the evidence before me, particularly of the numerous attempts made to serve the application documents, which commenced almost four months prior to the final hearing, I granted such leave to the applicant. There was no requirement for the applicant to provide the application documents to any other authority or person.
10. The Court is next obliged to consider matters pursuant to s 10 of the Trees Act.
11. Section 10(1)(a) requires that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the tree is situated.
12. The respondent, in his "General Form - SOFAC and Considerations s12 tree act" (Exhibit 3), claimed that the applicant made "no legitimate attempt to resolve the matter prior to the submission of the Part 2" and only provided the option of tree removal.
13. Preston CJ provides extensive commentary on s 10(1)(a) in Robson v Leischke (2008) 72 NSWLR 98; ; [2008] NSWLEC 152 (Robson). At [191] - [194], his Honour says: "191 The requirement in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant make a reasonable effort to reach agreement with the tree landowner is consistent with the recommendations of the New South Wales Law Reform Commission that neighbours should endeavour to settle a dispute about trees between themselves before taking court action. The Law Reform Commission had noted in its Report 88, Neighbour and Neighbour Relations that: "[t]he remedies proposed in this Report should be regarded as remedies of last resort. Talking to the neighbouring land owner and trying to find a mutually acceptable solution should be the first step when a dispute arises.": para 1.13, p 7. 192 The Trees (Disputes Between Neighbours) Act 2006 does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner. The New South Wales Law Reform Commission had recommended in its report a process whereby the affected landowner would write a letter before taking any court action to the tree landowner telling them what problems the tree is causing and asking them to abate the problem and, if the affected landowner has suffered damage, asking the tree landowner to pay the amount needed to compensate for the damage caused: see para 2.45, p 33. Through this mechanism, the affected landowner could negotiate. If the tree landowner did not respond to the notice within the specified time, the affected landowner could then apply to the Local Court for an order: para 2.46, p 33. 193 The Trees (Disputes Between Neighbours) Act 2006 did not adopt the procedural requirement of giving notice before commencing legal action, either as a precondition to taking action or as the means by which the applicant must make a reasonable effort to reach agreement. The notification requirement under s 8 of the Trees (Disputes Between Neighbours) Act 2006 is of lodging of the application and the terms of any order sought. Of course, such notification may prompt discussions between the parties, but it serves a different function to the Law Reform Commission's recommendation of giving notice before taking court action. 194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application."
14. The applicant provided evidence of personal visits by a Body Corporate representative and multiple reasonable written requests for removal of the tree over at least one year. Though the respondent noted disliking the tone and content of the applicant's approaches and correspondence, as his Honour says at [192] of Robson, the Trees Act "does not prescribe any particular means by which an applicant must make a reasonable effort to reach agreement with the tree landowner", nor the manner of the applicant's negotiations.
15. Therefore, I am satisfied that the requirements of s 10(1)(a) of the Trees Act have been met; that the applicant has made a reasonable effort to reach agreement with the owners of the land on which the tree is situated.
16. 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: (a) has caused, is causing or is likely, in the near future, to cause damage to the applicant's property, or (b) is likely to cause injury to any person.

Concrete driveway damage

1. A web of roots is growing from the tree base into the applicant's land. In Stevens v Russell [2016] NSWLEC 1233 at [41], Fakes C 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."
2. Though excavation is thus generally required to expose relevant roots, and the respondent noted the absence of such excavation, in this context it was unnecessary. Considering the photographic and interpretive evidence provided in both expert reports and based on the arboricultural expertise I bring to the Court, I was satisfied that the tree was the primary cause of the claimed concrete driveway cracking and uplift.
3. This species is very prone to root suckering. This propensity is one of the primary reasons it is often considered an environmental weed and why it is on the permission exempt list in the Inner West Council (Council) Tree Management Development Control Plan 2020 (DCP).
4. Both the foliage and external root appearance of Robinia pseudoacacia is relatively easy to identify, and many such roots were obvious in open concrete cracks. Robinia foliage emerged from cracked concrete or joints in at least six locations, including many metres from the tree base. There was sufficient visual access at most of these locations for me to confirm the foliage as sucker growth emerging from established lateral roots, rather than from seedlings.
5. The respondent noted other causes of the driveway damage, such as insufficient steel reinforcement, insufficient concrete thickness, and deterioration from normal wear and tear as the driveway was more than 50 years old. The respondent also claimed that damaged, subsided concrete at the rear of the paved area had not been caused by the tree. I concur with these submissions from the respondent, as did Mr Cardellis in his report, but the tree only need be a cause of damage to satisfy the requirements of s 10 (2)(a) of the Trees Act. I am, however, also satisfied that it is the primary cause in the tree's immediate vicinity.
6. Consequently, s 10(2)(a) of the Trees Act is engaged.
7. While the applicant claimed that the roots presented a risk of injury, and Mr Cardellis noted that the area of greatest differential uplift exceeded accepted standards regarding trip hazards for pavements, I am not satisfied that the risk of injury is sufficient to engage s 10(2)(b) of the Trees Act. This is because the trip hazard is in a relatively confined location which can be readily avoided, the relatively small number of residents in the complex can be made aware of the danger, and it can be highlighted with paint, as occurred in the past.
8. Nonetheless, the Trees Act requires the engagement of either s 10 (2)(a) or s 10 (2)(b), rather than both, so the Court may proceed to s 12.
9. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. In making an order, the Court must consider relevant matters in s 12 of the Trees Act, as follows:

Discretionary matters - s 12

1. The tree's trunk base and root buttresses are located immediately adjacent to the common boundary. In attempting to retain the tree's benefits but remove the applicant's root problems, I considered the option of a root barrier inside the respondent's land along the common boundary, but one entire side of the root system would have to be removed, and this would likely severely destabilise the tree. (ss 12(a)).
2. With respect to removal, the tree is exempt from protection under Council's DCP (ss 12(b)).
3. Pruning of the tree will not remedy damage caused by roots. As noted by Mr Gowenlock, the location of the tree base close to the boundary renders root pruning and insertion of a root barrier an unsafe option due to likely stability issues (ss 12(b2)).
4. The tree contributes to the respondent's family's privacy, and to their amenity because of the shade it provides and its flowers' attractive appearance and perfume. It also provides scenic value to the respondent's land, and some intrinsic value to public amenity as it may be viewed from the street (subss 12(b3)(e)(f)).
5. Though the tree's contribution to local biodiversity is reduced because it is exotic, Mr McRae noted that rainbow lorikeets eat the tree's leaves (ss 12(d)).

Findings

1. Regardless that Mr Cardellis may be a friend of one of the applicant's residents, I am not satisfied that a conflict of interest, as claimed by the respondent, has been displayed or proven. Mr Cardellis is suitably qualified to provide his report, and its content is clear, it addresses appropriate issues and appears to be non- partisan. Mr Cardellis has acknowledged adherence to the Expert Witness Code of Conduct in s 7 of the Uniform Civil Procedures Rules 2005, as required by the Court. The issue Mr McRae raised about the installation of an air conditioner is irrelevant to these proceedings.
2. The jurisdiction of the Trees Act covers damage likely to be caused by a tree in the near future. Based on the decision in Yang v Scerri [2007] NSWLEC 592 (Yang), the near future is defined, as a rule of thumb, to be a period of one year.
3. I am satisfied that roots from the tree have caused cracking and uplift damage of the concrete driveway and am also satisfied, given the presence of suckers from Robinia roots far from the tree, that, without intervention, roots from this tree are likely to thicken and spread and cause further similar damage in the near future.
4. It is normal for roots to spread laterally far from a tree's base, and to grow close to the soil surface, where they gain required oxygen. As noted in Mr Gowenlock's report, this species is known to often have an extensive root system associated with damage to proximal structures. I saw no other Robinia pseudoacacia in the vicinity of this site.
5. The respondent expressed a strong preference to retain the tree, and proposed alternative orders which, in summary, comprised: 1. Retaining and protecting the tree from damage during construction. 2. Use of a raft slab or slab on piers in the tree protection zone, per AS 4790:2009, Protection of trees on development sites. 3. Protection of the existing boundary fence during driveway works, or the right to access the applicant's property to repair or replace the boundary fence after the completion of the driveway works.
6. In his General Form - alternative orders (Exhibit 4), the respondent expanded on his proposed alternative orders' 1 and 2 in detail. Mr Cardellis responded to these proposed orders, also in detail, at para 3.8 on page 11 of his report. To provide site context to Mr Cardellis' response, the Court conducted a second inspection and assessment of the driveway.
7. With consideration of the driveway's descending slope, and the final levels required to accommodate adjacent stairs and garage entrances at the rear of the strata building, and notwithstanding that Robinia's are hardy and fairly tolerant of root damage impacts, I was satisfied that adjustments to the replacement driveway that would be required to allow for the tree to retained without extensive root removal would be relatively complex, and very expensive.
8. In attempting to retain the tree's benefits but remove the applicant's root problems, I considered the option of installation of a root barrier inside the respondent's land parallel to the common boundary, but one entire side of the tree's root system would require removal, and this would likely severely destabilise the tree's stability in the ground, as noted in consideration of ss 12(b2), above at [34].
9. Consequently, I advised the parties that if the tree was retained, the respondent would be required to shoulder the difference in cost required to implement the respondent's preferred driveway replacement solution including tree retention, relative to the cost of driveway replacement after tree removal.
10. With a view towards a resolution of the dispute, the applicant offered to withdraw all claims for costs made in the application, including legal costs and costs of expert reports, providing that the respondent removed and killed the tree, at the respondent's expense. The applicant also agreed to indemnify the respondent from costs associated with removal of the tree's roots that may be required in the preparation of the replacement driveway.
11. The respondent accepted this offer, and this agreement allowed for orders that the Court may lawfully make, and a positive resolution of the dispute, consistent with my findings.

Conclusion

1. Based on my inspection of the tree and the site, and documents supplied by both parties, I have reached the following conclusion:
2. The respondent's tree is the principal cause of damage to the concrete driveway between the common boundary and the applicant's dwellings and additional damage appeared likely in the short to medium term. Options considered to modify the site and the replacement driveway involved serious technical constraints and considerable cost. Installation of a root barrier was not a viable option to remedy and prevent ongoing damage, and thus, regardless that the tree provides genuine benefits, tree removal shall be ordered at the respondent's expense.

Orders

1. The Court orders that: 1. Within 60 days of the date of these orders, the Respondent, at his expense, shall remove the Robinia pseudoacacia (the tree) to near ground level and poison the stump. Should the tree continue to produce root suckers, the tree and the root suckers shall be re-poisoned until the tree is dead. 2. The tree removal works shall be completed by AQF level 3 qualified arborists with all appropriate insurances. 3. The tree removal works shall be completed in accordance with the Safe Work Australia Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 4. Should access be required to the Applicant's property to complete the tree removal works, or to re-poison root suckers, the Respondent shall provide at least 72 hours' notice by email to the Applicant's representative, advising the date and approximate start time of the works. 5. The tree removal works shall be completed during reasonable daytime working hours.

Amendments 17 May 2023 - Pursuant to rule 36.17 of the UCPR (the slip rule), correction is made to the position of "applicant" and "respondent" in the second sentence at [49]. 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: 17 May 2023