Roberts v Denham

CASES CITED: Barker v Kyriakides [2007] NSWLEC 292

APPLICANT Mrs D Roberts [litigant in person] LEGAL REPRESENTATIVES:

RESPONDENTS Mr and Mrs Denham [litigants in person]

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 COMMISSIONERS: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Winmalee against the owners of a tree growing on an adjoining property. 2 The applicant is seeking the removal of the tree as she contends that it has caused damage to her property and will continue to do so. She is also concerned that falling branches or the failure of the entire tree could cause injury to anyone in the house should this happen. 3 The tree is a mature eucalypt identified in Blue Mountains City Council (the council) documents as Eucalyptus eugenioides (Thin-leaved Strinybark) and alternatively as E. microcorys (Tallowwood) (we consider the former to be more likely). It is growing within 2-3m to the west of the applicant's house approximately 700mm above the level of the applicant's property. 4 The applicant contends that the tree has caused the following damage to her property: - Displacement of the foundations of the house under a glass sliding door on the western side of the house in proximity to the tree, - Breaking of terracotta floor tiles lining the sliding door, - Cracking and displacement of concrete block retaining walls, - Separation of joints of brick columns that support a pergola, - Rusting through of guttering on the house, - Lifting of paving under the pergola, and - Puncturing of previous fibreglass panels on the pergola.

5 It is the proximity of the tree to these structures that has led the applicant to assume that the damage is caused by the tree. The applicant is seeking compensation of an estimated sum of $20,000 for repair of this damage. 6 The respondents state that they have applied to Blue Mountains City Council three times to have the tree removed. Permission has been granted on each occasion but either financial issues or the lapsing of the permit have prevented the tree being removed. Permission has been recently given for the removal of the tree. The respondents contend that the applicant has produced no evidence or reports to prove that their tree has caused damage to the applicant's property. 7 The on-site hearing commenced with a view of the alleged damage. We saw an abundance of leaves and other debris on the applicant's roof, pergola and guttering. The applicant stated that the roof and gutters were cleaned in July this year however, we consider this to be unlikely given the quantity of material and the evidence of a weed growing from one of the gutters. The applicant has lived in her house for 36 years since the house was new and the guttering is original. 8 The current pergola roof is undamaged and there is no photographic evidence in exhibits A or B that show damage to the previous pergola roof. 9 We inspected the section of the house beneath the glass sliding doors on the western side of the house. The tiles have been removed so it was not possible to determine the extent of the cracking. The photographs included in exhibit A do not show the tiles but do show a minor displacement of the brickwork on which the tiles were set (photograph 3). 10 Photographs 1 and 2 show the section of brickwork beneath the sliding door. Without the benefit of a spirit level, it was difficult to determine which section of brickwork had moved however it appeared to us that the section of brickwork beneath the damp-proof course had slid inwards. There was also a minor uplift in one section. The applicant contends that the roots of the tree have caused this. 11 We saw no evidence of any roots in the gravel at the base of the wall or between the bricks. We explained to the applicant that the onus was on her to prove the nexus between the tree and the damage and that without proof the Court could not reasonably be expected to make a finding against the tree and the respondents. 12 The applicant's son was in attendance and leave was given for the applicant to prove her contentions. Whilst we inspected the remaining elements of the claim, the applicant's son excavated a trench approximately 300mm deep and about 1.2m long in the vicinity of the displaced brickwork. We saw two roots no more than 20mm in diameter. We were unable to determine whether they were from the tree in question. We noted that the footings were a combination of bricks and block work. 13 We noted the pavers the applicant contends have been lifted by the tree. These are shown in photograph 10 in exhibit A. Again, there is no evidence to show that the tree has caused this uplift. 14 The retaining walls in question are located on the western side of the applicant's property near the north-western corner of the house and the paved area beneath a pergola on the northern side of the house. The applicant states that the "retaining walls are collapsing" and refers to photographs 4 and 5 in exhibit A. The photographs and the inspection show cracks in the wall and a degree of displacement of a return in the wall. The concrete block walls are the same age as the house. We saw no evidence that the tree has caused this damage. 15 The respondents stated that when they moved into their property in 2000, the retaining walls on the western side of their property were in a state of disrepair. Their house is the same age as that of the applicant's. The respondents removed and replaced their retaining walls. 16 The applicant did not press the issue of the cracks in the brickwork of the columns that support the pergola as she was advised that this might be due to soil pressure on the retaining walls that support the columns. 17 With respect to the potential risk of injury, we note that the tree is in average condition with between 5-10% dead wood. A significant portion of the canopy overhangs the applicant's property. The foliage is healthy. Apart from the dead wood, the applicant is also concerned that the lowest branch could break and fall onto her house. 18 We used binoculars to inspect the upper portions of the canopy. We saw no obvious structural defects or any evidence of branch failure. We saw nothing to suggest that the entire tree might fall, or indeed, that any live branch that may fail. 19 We saw evidence of pruning. The respondents stated that in June 2001 they applied to council to have several trees removed from their property and two others trimmed, including the tree subject to the application. This was approved and dead branches were removed from the tree. 20 Under s 10(2) of the Act, 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. 21 In this matter the applicant has made assumptions that the tree has caused the displacement and cracking of the footings beneath the sliding door, terracotta floor tiles, concrete block retaining walls and paving. The applicant has held this view for a number of years. 22 In material subpoenaed by the applicant from Blue Mountains City Council, there is an application, to council by the respondents, to remove the tree dated 20 December 2005. Attached to this is a letter to the respondents from the applicant urging them to remove the tree on the basis that it was causing problems with the foundations of her house. The comments from the council officer who approved the application state " Removal of Tallowwood is recommended as the tree is causing structural damage to the foundations of the dwelling adjacent. Tree is within 2m of adjoining property." The approval was granted on 19 January 2006. 23 There is no evidence in the subpoenaed documentation to show how the officer came to this conclusion. 24 We find that the applicant has been unable to prove the connection between the tree and the damage. The applicant's case rests on the proximity of the tree to the structures. However, if we are wrong in not accepting the applicant's position, we find that there are other factors that cannot be ruled out as contributing to the damage. These are discussed in para 27. 25 With respect to the risk of injury, there is no evidence that any part of the tree substantial enough in size is likely to fail and damage the house or the pergola to such an extent that anyone inside the house/ beneath the pergola would be injured. 26 However, given the amount of dead wood in the canopy, it is not unreasonable to consider that falling dead wood could damage the roof or pergola. 27 Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order. However, in doing so, the Court must consider a number of matters under s 12 of the Act. The relevant clauses are: (a) The tree is wholly located on the respondents' property. (d) The tree is a local species. According to the applicant it was a small tree when she purchased her property. Therefore, the tree is likely to be part of the original vegetation and therefore will contribute to the local ecosystem and to biodiversity. (e) The tree contributes to the scenic value of the land on which it is growing and to the locality. (f) Its canopy can be seen from the street and forms part of the character of the landscape and therefore it has some intrinsic value to public amenity.

(h)(i) Anything other than the tree that may contribute to the damage. With respect to the retaining walls, the topography of the immediate area is such that the land slopes downhill from west to east. There has been cut and fill to create level building blocks. The soils are shale-based clays and as such hold reasonable amounts of water. It is not unreasonable to consider that a 36 year old retaining wall retaining clay soils may show some signs of damage. Similarly, the guttering is original and even in the absence of leaf litter some deterioration is not unexpected. The excavation of the footings in the vicinity of the sliding door showed a variety of materials and appeared unconventional. As the displacement of the brickwork is confined to the area beneath the sliding door, the damage may be due to the installation of the door or the integrity of the footings themselves. (h)(ii) Actions of the applicant or the respondents. As stated in para 6, the respondents have applied to the council for permission to remove the tree.

28 With respect to the issue of the leaves and other debris in the gutter, in Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, 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 applies in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. It would appear to us, and from the respondents' submissions, that the applicant's roof and guttering has not been cleared for some time. 29 The applicant seeks the Court to order the removal of the tree and the payment of compensation for repairs to her house. On the basis that we find no evidence to prove the nexus between the tree and the damage, no compensation can be awarded. 30 In this regard, the Court's standard directions require that anyone applying for compensation is to detail the basis of any amount they are claiming. This may include quotes for the works. At the on-site hearing, the applicant produced a quote prepared on 10 September. The hearing was held on 30 September. The document had not been given to the respondents for their consideration. We briefly inspected the quote and found that it included a number of works that were not part of the application and none of the elements of the quote were itemised. Given the imprecise nature of the quote and the fact that the respondents had not seen it, we declined to accept it as evidence. 31 Therefore as a result of the forgoing, the Orders of the Court are: 1. The application to remove the tree is dismissed. 2. The application for $20,000 in compensation is dismissed. 3. Unless the tree has been removed, the respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood down to 30mm in diameter from the tree. 4. This work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. 5. If required by the arborist, the applicant is to provide all reasonable access for this work to be carried out in a safe and efficient manner. 6. The works are to be completed within 60 days of the date of these orders. 7. The applicant is to be given at least 2 working days notice of the commencement of the works.

J Fakes Commissioner of the Court

P Hewett Acting Commissioner of the Court

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