Schreiber v Eadie

Yang v Scerri [2007]NSWLEC 592 CASES CITED: Nair v Edwards [2006] NSWSC 1310 Robson v Leischke [2008] NSWLEC 152 Barker v Kyriakides [2007] NSWLEC 292

APPLICANT Kevin Schreiber, Litigant in Person LEGAL REPRESENTATIVES:

RESPONDENT Peter Eadie, Litigant in Person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT The extemporaneous decision was given on 23 October 2008. The judgment reflects the findings given on-site and the background documentation referred to during the hearing. 1 ACTING COMMISSIONER: Mr Schreiber is the owner and resident of 59 Laman Street, Cooks Hill, having purchased that property five years ago. He is an architect, and wishes to carry out alterations and additions to his home including a laundry, toilet and store extending to the rear boundary, and masonry walls and new paving in the small rear courtyard. Those developments would be under the existing canopy of, and close to the trunk of a Liquidambar tree growing on 10 Bruce Street, Cooks Hill, the adjoining property to the south. There is some damage to the existing paving and small brick retaining wall in Mr Schreiber's courtyard. It is probable that at least some of that damage has been caused by the Liquidambar tree.

2 There are other large trees including paperbark and Illawarra Flame tree visible in the yards of some properties near Mr Schreiber's. The property immediately to Mr Schreiber's west has numerous large trees. Cooks hill is an older area of Newcastle, notable for its attractive housing and very large street trees. The area has been undergoing renewal for the last few decades.

3 Mr Schreiber makes his application to rectify or prevent damage, and seeks orders for removal of the Liquidambar tree. He claims that the tree has damaged, is damaging, and is likely in the near future to damage his property, and he considers the tree to have excessive overhang of his property, causing shading and leaf drop onto his property. Mr and Mrs Schreiber attended the hearing.

4 Mr Eadie owns the property at 10 Bruce Street, Cooks Hill. The Liquidambar tree grows in the north-western corner of his backyard. He planted the tree in 1985. Although he does not presently live at the property, he attended the hearing and wishes to retain the tree.

5 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006the 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 ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person?

6 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?

7 Further, before determining an application, the Court is to also consider the matters in s 12 of the Tree Act. Mr Schreiber's claims 8 Mr Schreiber has made the following claims in his written submission or at the hearing: o The tree is bending the dividing fence; o Tree roots are damaging a 0.5 m high brick retaining wall in his courtyard; o Tree roots are lifting paving in his courtyard; o Tree roots blocked the Board's sewer in April 2008 causing sewerage to overflow into his laundry, kitchen and family room; o The tree's critical root zone impacts on approved additions to the rear of his existing house, preventing that work from taking place. The tree roots will compromise the footings of that structure and any attempt to cut back the roots of the tree to accommodate the new works could result in the tree becoming unstable, posing a threat of injury to people or property; o 40% of the root system and canopy of the tree have extended into his property severely restricting the development potential of his property; o The tree will compromise or damage his proposed masonry boundary walls in the courtyard; o The tree will damage his proposed replacement paving in the courtyard; o Further growth of tree roots is likely to damage the foundations of his existing residence. o The canopy of the tree has become dominant and in summer allows minimal solar access to the courtyard. The tree canopy would need to be reduced by 30-40% to allow reasonable solar access; o The tree drops an excessive quantity of leaves and seed pods, requiring an unacceptable amount of maintenance; Mr Eadie's response 9 Mr Eadie did not make a written submission. Mr Schreiber included in his application an email from Debbie Eadie to Mr Schreiber dated 28 May 2008 and a letter from Mr Eadie to Mr Schreiber dated 17 July 2008 with the attached survey of Mr Eadie's property. The following points are from those documents and Mr Eadie's statements at the hearing: o The tree provides shade, privacy and aesthetic qualities; o The neighbours Victoria and Richard Lees are also keen to save the tree; o The dividing fence is within Mr Eadie's property, and is 0.7 m on Mr Eadie's side of the boundary at the western end; o He does not want the tree to be removed; o He hopes that with Mr Schreiber he can come up with a workable solution.

The tree 10 An arborists report dated 23 July 2008, prepared for Mr Schreiber by Mr Kingdom, forms part of Mr Schreiber's application. The report does not include any acknowledgment of or agreement to be bound by Division 2 of Pt 31 of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules.

11 The arborists report at s 4.1 makes the following comments about the age, health and structure of the tree:

The tree is a young mature L. styraciflua …… This tree is in good health and fair structural condition. It has a co-dominant leader with an inclusive fork union. The inclusive fork union is only considered to be a minor defect. The tree passes the VTA ….

12 I observed the tree from the ground on both Mr Eadie's property and Mr Schreiber's property. It appears to be about 16 m tall with a spread of about 12 m and trunk diameter of about 0.6 m below the co-dominant trunks. Based on Mr Schreiber's construction plan and comments of the parties, the outside of the trunk of the tree appears to be about 0.3 m from the common boundary. Health and structure of the tree appear to be as described in Mr Kingdom's report.

Findings: The fence 13 At the hearing I was shown from Mr Eadie's property that the tree has pushed the fence out of alignment. I note from the survey of Mr Eadie's property, the part construction plan dated 30/07/08 rev b in Mr Schreiber's application, and the agreement of both parties that the fence is entirely within Mr Eadie's property. On that basis I find that damage to the fence does not meet any of the tests in s 10(2)(a) of the Act as the fence is not the applicant's property.

The low garden wall 14 On the southern side of Mr Schreiber's courtyard I was shown a low garden wall about 0.5 m high and 3 m long that was cracked and lifted. This wall built of paving blocks runs from just east of the tree, towards the south-west, and is within 0.5 m of the trunk of the tree. I find that on the balance of probability, the damage to this wall is likely to be caused by roots of the Liquidambar tree as the greatest damage is adjacent the trunk of the tree.

15 The parties agree that the western two-thirds or so of this wall is actually on Mr Eadie's property, but I find that damage to the eastern part meets the tests in s 10(2)(a) of the Act as that part is the applicant's property.

16 However, I do not find that damage to this wall is sufficient to order removal of the tree for the following reasons: o The wall is built across the boundary and would likely be removed to build a fence on the boundary at some time; o Mr Schreiber advised at the hearing that he intends to build a high masonry wall on the boundary; o The existing wall is a minor garden structure; o The wall is only single brick width and I was not shown any evidence that it was built to perform adequately as a retaining wall or to avoid damage from the nearby tree.

Existing paving in courtyard 17 I was shown areas of brick paving that were raised and tilted in Mr Schreiber's courtyard. I was not shown any tree roots, the paving has not been removed, and I was told that nobody has investigated to see what tree roots are under the paving. However, I find that on the balance of probability the paving damage that is within about 1 m of the trunk of the tree, and lifted pavers that form ridges on lines radiating from the trunk of the tree, are likely to be caused by Mr Eadie's tree. That damage meets the tests in s 10(2)(a) of the Act.

18 However, I observed and commented on a substantial masonry wall on the western side of their courtyard that is leaning towards the tree. I noted the Schreibers' agreement that this damage is not likely to have been caused by Mr Eadie's tree. Also, in their application they do not claim this wall damage to be caused by the tree. I also observed that there are many large trees growing on the adjoining property to the west of that wall, and that there are Ficus hillii trees growing in Laman Street. On that basis I have some doubt that all of the paving damage in Mr Schreiber's courtyard has been caused by Mr Eadie's Liquidambar tree.

19 As Mr Schreiber wishes to repave his courtyard as part of alterations and additions to his property, and the roots of other trees may have caused some paving damage, I do not find that damage to the paving is sufficient to order removal of the tree. The sewer blockage 20 Mr Schreiber states in an email to Mr Eadie dated 5 May 2008 included in his application, that he 'had raw sewerage coming through the floor waste in our laundry 2 weeks ago as the tree's roots have invaded the sewer pipe. As you probably know the main line runs through your property close to the tree. Hunter Water came to clear the line and said this would be an ongoing problem if the tree was to remain.' Mr Schreiber confirmed at the hearing that the blockage was in the Board's main and caused overflow of sewerage into his laundry, kitchen and family room, damaging carpets and requiring cleaning.

21 I find that blockage of the Board's sewer main alone does not meet the tests in s 10(2)(a) of the Act as the main is not Mr Schreiber's property.

22 However, on the basis of the statement attributed to Hunter Water staff, and the location of the sewer line under the tree shown on Mr Schreiber's part construction plan dated 30/07/08 rev b in his application, I find that on the balance of probability, the blockage of the sewer pipe is likely to have been caused by roots of the Liquidambar tree. It follows then that the sewer overflow and past damage to Mr Schreiber's carpets does meet the first test in s 10(2)(a) of the Act.

23 The second test in s 10(2)(a) of the Act relates to currently occurring damage. I understand that there is no current blockage or overflow, so the second test in s 10(2)(a) of the Act is not met.

24 The third test in s 10(2)(a) of the Act relates to damage that is likely in the near future. In Yang v Scerri [2007]NSWLEC 592, the Court set out, for future consideration, a rule of thumb as to what might constitute the near future for the purposes of s 10(2)(a) of the Act. In that case, twelve months was adopted as an appropriate period. I also note that twelve months is a more generous period of time than was discussed in Nair v Edwards [2006] NSWSC 1310 (a tree nuisance case in the Supreme Court) where Windeyer J held that an appropriate period of time for future damage might be as short as six months. I find no reason to depart from those timeframes in this case. I note the statement attributed to Hunter Water that blockage to the main would be an 'ongoing problem' but I have no evidence of a history of past blockages or that another blockage is likely in the near future. On that basis I find that the third test in s 10(2)(a) of the Act is not met.

25 Mr Schreiber explained at the hearing that he intends to replace those areas damaged by sewerage as part of the alterations and additions to his property. As the damaged areas will be replaced, and there is no evidence that further damage is likely in the near future, I find no reason to order removal of the tree. Impact on the tree if the approved addition is constructed at the rear of existing house, and impact of the tree on that construction 26 Mr Schreiber's application states that 'approved development and construction plans include a new store, laundry and toilet addition to the rear of the property, the outer wall of which forms part of the boundary fence. The footings of this structure will be severely compromised by the trees root system …." The proposal is shown on Mr Schreiber's part construction plan dated 30/07/08 rev b which is included in his application. I understand that it involves an extension about 3 m wide over the 2 m or so to the rear boundary on the eastern side of the courtyard, an area of about 6 sq m.

27 Mr Kingdom's arborists report makes the following comments:

The tree has limited space available (3.2 metres from the existing house) and any future construction to this residence will place the addition within the tree's critical root zone (CRZ). The CRZ is regarded as the structural support root area of this tree and any damage within this area is considered to be potentially destabilising.

28 I accept Mr Kingdom's statement that damage within the critical root zone is 'potentially destabilising', but I rely on common arboricultural practice that some excavation within the critical root zone is permissible depending among other things, on the location, any tree roots found, and the tolerance of the tree to root disturbance. Guidance for encroachment into the Structural Root Zone (SRZ) of trees is given in cl 3.2.1.2.2 and cl 3.2.1.2.3 of the 16th Committee Draft of AS 4970-200X Guidelines for the planning for and protection of trees on development sites issued by Standards Australia in September 2008.

29 I note that no investigation has been carried out to find what, if any tree roots are in the area of the proposed addition to the house. I also note that though the tree may be 3.2 m from the closest corner of the existing house on Mr Schreiber's property, the tree is about 6 m from Mr Eadie's house, and that Mr Eadie's backyard has an area of about 80 sq m where much of the trees roots may be located.

30 My rough estimate is that the proposed addition will cover less than one sixth of the root area in the nominal Structural Root Zone of the tree. I also note that the addition will be over a segment of root area beginning near the trunk and widening to the north-east. Further, I consider that Liquidambar trees generally have a high tolerance for root pruning.

31 For the reasons stated above, I am not persuaded that the footings of the proposed additions will be compromised by the root system of the tree, either at the time of construction or afterwards. Nor am I persuaded by the evidence that the tree will be made unstable by construction of the proposed addition. Therefore I find that none of the tests in s 10(2)(a) or (b) of the Act would be met with regard to construction of the proposed addition on the eastern side of Mr Schreiber's courtyard.

Impact on development potential 32 Mr Schreiber's application states in relation to the tree that '40% of its root system and canopy have now extended into our property severely restricting the development potential of our property should the tree be retained.' I note that at the hearing Mr and Mrs Schreiber expressed strong concerns that the tree stopped them developing and using their property as they wished.

33 In Robson v Leischke [2008] NSWLEC 152 Preston CJ discussed Damage to "property on the land" at paragraphs 162 to 167. At paragraph 166 he states:

'The reference in s 7 to "property on the land", insofar as it refers to land, therefore, may be a reference to corporeal hereditaments ("things corporate") rather than incorporeal hereditaments ("things collateral to things corporate") …'

34 I understand development potential to be an incorporeal hereditament of a property. In adopting the approach of Preston CJ above, I would find that even if damage had occurred to development potential of Mr Schreiber's property, it may not be something for which he can make an application to the Court for an order to remedy, restrain or prevent.

35 I also note however, that Mr Schreiber has not provided any evidence that the development potential of his property has been restricted by the tree. To the contrary, it seems that the application for the addition at the rear of his house was approved regardless of the existence of the tree.

36 Further, I note that Mr Schreiber has owned his property for five years and that he claims the tree has grown over that period. He has also advised that the tree is not protected by a Newcastle City Council tree protection order. If the development potential of Mr Schreiber's property was restricted by the extension of the tree into his property, and that was found to be damage to his property for the purposes of the Act, I would consider under s 12 (j) of the Act, that Mr Schreiber could at any time have exercised his common law rights to prune back the tree in order to reduce or remove its extension into his property. On that basis I would refuse the application for removal of the tree. Proposed masonry walls around courtyard 37 Mr Schreiber explained at the hearing that he hopes to build a tall masonry wall on the boundary beside the tree and on the western side of his courtyard. He is concerned that the tree will compromise or damage these walls. He advised that Council approval would be required for the walls, and that he had not yet submitted a development application for the proposal.

38 As the walls have not been built, I do not find it likely that they will be damaged in the near future, that being a period of six to twelve months in the future as discussed in paragraph 24 above. On that basis, possible damage to the proposed walls does not meet the tests in s 10 (2) (a) of the Act.

39 If I am wrong in that regard, I would consider under s 12 (j) of the Act, that Mr Schreiber could design the walls in such a way that they were not likely to be damaged by the tree, and I note that the common building technique of pier and beam footings was discussed at the hearing. On the basis that damage to the proposed walls could be avoided by Mr Schreiber, I would refuse the application for removal of the tree.

Proposed new paving in courtyard 40 Mr Schreiber explained at the hearing that he intends to repave his courtyard and he is concerned that the tree will compromise or damage that paving.

41 As the paving has not yet been installed, I do not find it likely that it will be damaged in the near future, that being a period of six to twelve months in the future as discussed in paragraph 24 above. On that basis, possible damage to the proposed paving does not meet the tests in s 10 (2) (a) of the Act.

42 If I am wrong in that regard, I would consider under s 12 (j) of the Act, that Mr Schreiber could investigate what roots are under the paving, and with suitable advice prune the roots that may cause damage. He could also install the paving on a base material that is less likely to allow root growth to damage the paving. On the basis that damage to the proposed paving could be avoided by Mr Schreiber, I would refuse the application for removal of the tree.

Possible future damage to existing residence 43 Mr Kingdom's arborists report states at cl 4.2: I have thoroughly inspected the residence and I can see no signs of any damage to the existing residence at this stage. It is possible that in the future, as this tree grows, that the existing foundations of Mr Schreiber's house could be compromised by the potential large tree roots.

44 I have not been provided with any evidence of Mr Kingdom's qualifications to identify building damage, but I accept that he has done some form of inspection and found no damage. I also accept his statement that 'It is possible that in the future….foundations….could be compromised' but I do not conclude from that statement that damage is likely in the near future, that being a period of six to twelve months in the future as discussed in paragraph 24 above. Further, I was not shown anything at the hearing to make me think that damage to existing residence is likely in the near future. On that basis, I find the possible future damage to the existing residence does not meet the tests in s 10 (2) (a) of the Act.

Solar access and overhang 45 Mr Schreiber states in his application that 'The canopy of the tree has become dominant and in summer allows minimal solar access to the courtyard. The tree canopy would need to be reduced by 30-40% to allow reasonable solar access'.

46 In Robson v Leischke [2008] NSWLEC 152 Preston CJ discussed "Damage to property" at paragraphs 168 to 173. At paragraph 173 he states:

Also, the requirement that the tree cause "damage to property on the land" would not cover situations of a tree obstructing a view or access to light. Such interferences do not constitute nuisances at common law (absent an easement): see earlier discussion at paragraph 86. Although the New South Wales Law Reform Commission recommended that the new statutory scheme should address such concerns, the legislature expressly declined to do so, as the second reading speech and Parliamentary Debates plainly state. Obstruction of a view from land or of access to light on land by a tree situated on adjoining land does not constitute "damage to property on the land". On that basis, in accordance with s 7 of the Act, I find that loss of solar access is not something for which Mr Schreiber can make an application to the Court for an order to remedy, restrain or prevent.

Leaf and seed drop 47 At the hearing, Mr and Mrs Schreiber expressed concern and annoyance about the large amount of leaf and seed drop from the tree. 48 In Robson v Leischke [2008] NSWLEC 152 Preston CJ discussed such matters at paragraph 171: However, 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 Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's 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.

49 There was no evidence in Mr Schreiber's application that the leaves and detritus from the tree had caused damage, and I was not shown any such evidence at the hearing. On that basis, in accordance with s 7 of the Act, I find that the falling of leaves, seeds and other detritus onto his property is not something for which Mr Schreiber can make an application to the Court for an order to remedy, restrain or prevent.

50 If I am wrong regarding damage from falling leaves and detritus, or that damage from it is likely in the near future, under s 12 (j) of the Act, I would apply the logic of the tree principle published in Barker v Kyriakides [2007] NSWLEC 292. That principle discusses the obligations of householders who have the aesthetic and environmental benefits of trees in an urban setting and the requirement that they may reasonably be expected to undertake property maintenance including the removal of tree detritus such as leaves, nuts, fruits or small branches falling from such trees onto their property. On that basis I would not order removal of the tree as a matter of discretion. Considerations 51 Under s 12 (d) of the Act, I note that the tree is not an Australian native species but it is likely to make some contribution to the provision of food and shelter for various fauna.

52 Under s 12 (e) of the Act, I note that the tree contributes to the landscape of Mr Eadie's property, and as he stated, provides beneficial shade to his property on summer afternoons.

53 Under s 12 (f) of the Act, I note that the tree provides intrinsic value through oxygen production, carbon sequestration, cooling summer shade to the general area and some absorption of reflected heat from nearby walls in summer. I also note that the tree is similar in size to many other trees in nearby backyards, and contributes to the leafy quality of the Cooks hill area

54 Under s 12 (j) of the Act, I note that Mr Eadie holds strong wishes for the tree to be retained. During discussions of possible management of the tree he advised in response to questioning, that he would not agree to removal of the tree even if Mr Schreiber met the full cost of that removal and planted an advanced replacement tree in his own courtyard.

55 I also note that Mr Schreiber intends to carry out alterations and additions to his home and courtyard. Those works would include removal of his structures that have been damaged by the tree.

56 I further note that the parties have reached some agreement for pruning of the tree. Conclusions 57 I have found that the tree caused damage to Mr Schreiber's low garden wall and paving in the courtyard. I also found that flooring in Mr Schreiber's house was damaged by a sewer overflow. On the basis of that damage I found that the tree meets the first test in s 10(2)(a) of the Act.

58 I also found damage to the low garden wall and paving in the courtyard is continuing and is likely to occur in the near future. On that basis I found that the tree meets the second and third tests in s 10(2)(a) of the Act.

59 However, I find that the damage is slight and inconsequential as Mr Schreiber intends to remove the damaged areas as part of alterations and additions to his home and courtyard.

60 I found that Mr Schreiber's other claims were not upheld.

61 I note that Mr Eadie wishes to retain the tree, and Mr Schreiber can carry out branch and root pruning in accordance with his common law rights.

62 I find that there is not sufficient reason to order removal of the tree, and would therefore intend to refuse the application.

63 However, I note that the parties have reached some agreement regarding pruning of the tree and will make consent orders to effect that agreement.

Orders 64 The Orders of the Court, by consent, are:

a. The parties shall have the branches of the tree pruned and share the cost of that pruning equally; b. The pruning shall be back to near the common boundary, and such additional pruning as recommended by an AQF Level 5 arborist and agreed to by Mr Eadie to make the tree well balanced, attractive and structurally safe; c. The pruning shall be carried out by an AQF Level 3 arborist with suitable insurances, and the work shall be in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees ; d. Mr Schreiber shall grant access over his property to carry out the pruning work and for removal of all the pruned branches; e. The pruning work shall be carried out at a time recommended by the AQF Level 5 arborist, and prior to 31 July 2009 allowing for the work to be done in winter if so recommended; f. The work shall take place at reasonable times, on reasonable notice, and Mr Schreiber may supervise the activities on his property; g. These orders do not prohibit additional works being carried out on Mr Eadie's property at his cost, or root pruning on Mr Schreiber's property at Mr Schreiber's cost; h. Mr Eadie shall obtain three quotations from suitable contractors for the work, and shall choose the cheapest unless Mr Schreiber agrees otherwise; i. Mr Eadie shall pay the full invoiced cost of the work to the contractor(s); j. Mr Schreiber shall pay half the invoiced cost to Mr Eadie, within 30 days of being given a copy of the receipt for the completed work.

      Peter Thyer
      Acting Commissioner of the Court
      The formal orders are not included as part of this judgment but a copy 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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