This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
COMMISSIONER: A mature Ficus macrophylla (Morton Bay Fig) (the tree) is the subject of an application by Mr Phillip and Mrs Kylie Simcoe, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act). The tree is located in an adjacent neighbouring property owned by Mr Phillip Whybin, the respondent, in the Hunter Valley town of Hinton.
The tree is not large in terms of the enormous potential scale of Morton Bay Figs, but in the context of a single tree growing in a largely empty paddock, with only the applicants' dwelling in close proximity, the tree looks relatively large and is highly visible to the local community.
Based on the applicants' arborist report from ArborCert Pty Ltd, dated 24 June 2022, the tree is about 17.5 metres (m) tall with a canopy spread averaging about 21 m, and trunk diameter at breast height (DBH) of about 1160 millimetres (mm). Due to its broad buttress roots, the tree's trunk diameter near ground level was far greater than 2 m.
Mr Whybin's property is zoned RU5 under the Port Stephens Local Environmental Plan 2013, which comprises Large Lot residential in rural villages. The respondent submitted that the tree has been mature throughout his 76 years of living at his property, and said an 80-year-old neighbour's children had climbed on the tree during their childhood.
Most likely in the 1980's or 1990's, Port Stevens Council (or the then alternative local government authority) (Council) granted subdivision of one 'urban-sized' land parcel from the respondent's property. Regrettably, Council did not appear to have been considered obvious characteristics and requirements of the long-established Morton Bay Fig in this zoning decision, as the northern boundary of the resultant 'urban-sized' land parcel is very close to the base of the tree, regardless that Mr Whybin's large block was otherwise almost clear of trees, and thus provided scope for flexibility in determination of the subdivided block's shape and dimensions.
Council subsequently approved construction of a brick dwelling on an excavated concrete slab, and a driveway and garage, all on the northern side of the new land parcel, in close proximity to the adjacent tree's large trunk and roots.
The Simcoe's purchased the property in 1998, at which time the driveway was compacted road-base. The applicants claimed that no issues arising from tree roots were identified in an inspection report which they procured in association with their property purchase. The parties' common boundary relevant to this application is oriented from west at the Simcoe's property street entrance to east at the rear of their land.
In 2002, in anticipation of leasing the property, the applicants had roots cleared from the driveway and upgraded the surface to unitary brick paving. A steel plate was installed vertically along the boundary beside one particularly large, severed root as a barrier intended to prevent further incursion from root regrowth.
In January 2007, the applicants were informed by their property agents that roots had breached the steel plate and had again caused driveway damage. At Mr Simcoe's request, Mr Whybin sought Council permission for tree removal, but permission was refused. Council alternatively recommended insertion of Rootstop 500 or Rootstop 1000, proprietary continuous plastic root barriers. Mr Whybin subsequently severed surface and subterranean roots growing beyond the common boundary in early 2007 and after further driveway root damage was reported in September 2008, Mr Whybin installed Rootstop 500.
The barrier apparently restricted surface root ingress for many years but the applicants claimed that by 2019, roots were again causing severe paving uplift and potential retaining wall damage, and had caused stormwater pipe blockages four times between 2011 and 2021. After a period of negotiation and mediation, the applicants persuaded Mr Whybin to lodge another tree removal application, which Council refused on 20 August 2021.
[2]
The onsite hearing
As is customary, the onsite hearing commenced with an inspection of the tree on the respondent's land. Both parties attended, with the applicants represented by Mr E Whittaker of MRM Lawyers, while the respondent was represented by Mr S Beal, Solicitor.
Damage allegedly caused by the tree was inspected on the applicants' land along with the risk of injury posed by the tree, after which the parties presented oral and written submissions.
The applicants' initial proposed (summarised) orders were:
1. The respondent shall engage and pay for an AQF level 3 arborist to remove the tree, within 90 days of the date of these orders.
2. The respondent shall pay compensation for the rectification of damage to the applicants' property.
3. The respondent shall pay the applicants' costs of the proceedings.
Following prehearing negotiations between the parties, the respondent consented to alternative orders proposed by the applicants, which required removal of the tree at Mr Whybin's expense, but withdrawal of claims for compensation for past damage, or for legal and other costs. The onsite hearing was nonetheless required to ensure such orders satisfy the jurisdiction of the Trees Act.
[3]
Jurisdictional requirements
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.
Section 9 of the Trees Act provides the jurisdiction of the Court to make a wide range of orders while s 10 details the following matters of which Court must be satisfied before making an order:
(1) The Court must not make an order under this Part unless it is satisfied:
(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and
(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.
(2) The Court must not make an order under this Part unless it is 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.
Under s 12 of the Trees Act, the Court is required to consider a range of specified matters before determining an application made under this Part.
[4]
Findings
Section 7 of the Trees Act is satisfied as file documents show both parties own their respective properties and the Simcoe's claim that Mr Whybin's tree is damaging their dwelling.
The applicants provided records of contact with the respondent back to 2007, which included negotiations around damage abatement measures, applications to Council for tree removal, and mediation in July 2021 through a Community Justice Centre. This evidence displays that the applicants have made a reasonable effort to reach agreement with the owner of the land on which the tree is located, thus engaging s 10(1)(a) of the Trees Act.
Affidavits of service from Mr Paul Sternbeck, Licenced Process Server, dated 13 and 14 February 2023, confirm the applicants gave notice of the application to the respondent, and to Council, in accordance with s 8, and have therefore satisfied s 10(1)(b) of the Trees Act. An affidavit of service by Talysha Sabatino, Licenced Process Server, on 19 March 2023, evidenced that the application was also served on the NSW Heritage Council on 16 March 2023.
The next major test that is posed, by s 10(2) of the Trees Act, states:
(2) The Court must not make an order under this Part unless it is 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.
[5]
Paving, stormwater pipe, and gate post damage
Though excavation is usually required to expose damage by roots, this was unnecessary here. Large roots causing pronounced paving uplift and distortion were visible near the common boundary close to the tree. Roots were also identified growing between concrete slabs against the dwelling wall, and I was satisfied that a substantial brick front gate post had been uplifted by roots and levered out of alignment. Further, I accepted the applicants' plumbing evidence of previous root incursion in stormwater pipes, and, in the absence of other trees nearby, the applicants' submission that the damage was caused by the respondent's tree. Consequently, s 10(2)(a) of the Trees Act is engaged.
[6]
Near future damage
The jurisdiction of the Trees Act covers damage likely to be caused by a tree in the near future, and in Yang v Scerri [2007] NSWLEC 592, the near future is defined, as a rule of thumb, to be a period of one year.
Based on the large size, extensive distribution, and vigour of the tree's roots observed on site, their close proximity to the applicants' driveway, and the characteristics of this species, I am also satisfied that without intervention the tree's roots are likely to continue to spread and thicken, and that further damage is likely in the near future. Considering the nature and sub-base of the applicants' paved driveway, this is likely to continue to manifest as paving uplift, but cracking of adjacent retaining walls and less predictable damage is also likely, and is almost inevitable in the medium to long term. Therefore, s 10(2)(a) of the Trees Act is again engaged.
[7]
Risk of injury
I am not satisfied that the raised roots in the driveway surface or overhanging branches represent genuine risk of injury to persons. The roots are conspicuous and may be highlighted and avoided by adjacent pedestrian traffic, while I observed no structural problems or past failures amongst branches overhanging the applicants' land that may be considered to pose a genuine risk of injury. Nonetheless, s 10(2) of the Trees Act remains satisfied as only one of the four conditions comprising s 10(a) and s 10(b) must be met to engage the jurisdiction.
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 Act.
[8]
Discretionary matters - s 12
The tree is located near the front of the applicants' property just a few metres from the common boundary with a twisted web of large raised primary roots growing above and below the soil surface between the tree and the boundary. The various interventions with the tree over the last 20 years have resulted in large, deflected roots currently growing on or close to the common boundary which constrain viable options for intervention with the tree's roots whilst retaining the tree (s 12(a)).
With respect to removal, the tree is protected by Council's Tree Management Policy under the Environmental Planning and Assessment Act 1979. According to Council's Notice of Determination dated 20 August 2021, included at page 37 of Mr Simcoe's affidavit exhibits of 26 April 2023 (Exhibit C), Mr Whybin's 2021 tree removal application was refused because it "will result in a development that fails to satisfy the provisions of Chapter B1 - Tree Management of the Port Stephens Development Control Plan 2014 (DCP2014)".
In an email to Ms Simcoe dated 19 August 2021, Mr Paul Le Mottee, a Port Stephens Councillor and Deputy Mayor, advised that Council cannot lawfully assess the application unless it was accompanied by a Heritage Impact Statement, that Mr Whybin had advised Council that he would not pay for a Heritage Impact Statement, and that Council thus had no alternative but to refuse the application for tree removal (s 12(b)).
Pruning of the tree has been minimal and restricted to the quadrant over the applicants' dwelling roof. The issue of leaf and other debris dropping from the tree, blocking drains, and staining surfaces was submitted by the Simcoe's to substantiate tree removal, but there is no restriction or remedy available under the Trees Act for tree branches overhanging neighbouring properties if they are not also causing damage as defined in the Trees Act. This is addressed at [171] of Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), where Preston CJ says:
"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."
Further, the Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 (Barker), which, at [20], states that:
"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, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree."
As a result, the dropping of refuse associated with the tree is not deemed to be damage under the Trees Act, and the required maintenance to clear leaves, fruit and small sticks from the roof gutters, and the surrounding area so as to prevent drain blockages, is considered to be reasonable. The maintenance expectation arising from Barker was extended in Hendry v Olsson [2010] NSWLEC 1302 at [11] to [14], to include the cleaning of mould and slime (s 12(b2)).
The tree may contribute to the applicants' privacy, and to protection from the sun and wind. It has historical and scenic value to the community, and intrinsic value to public amenity (subss 12(b3)(c)(e)(f)).
Being a long lived, large, endemic tree, it is likely to contribute significantly to the local ecosystem and biodiversity by providing food and or shelter for local fauna (s 12(d)).
The tree alone is causing the applicants' damage, and both parties have taken genuine measures to reduce and mitigate damage over the last 20 years (subss 12(h)(i)).
Mr Whybin submitted that the pre-existence of the Fig, long before the applicants' house, should be considered when determining the case's outcome and his liability. Whether 'the tree was there first' is a matter that the Court considers as a relevant circumstance, under s 12(j) of the Trees Act. In Black v Johnson (No 2) [2007] NSWLEC 513 (Black), the Court has published a tree dispute principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make.
[9]
Conclusion
I am satisfied that roots from the tree have caused damage to the applicants' paved driveway, front brick gate post, and stormwater pipes, and they have prised a path away from the dwelling wall. Considering the size and extent of the tree's roots observed on site, their close proximity to the applicants' driveway, and the characteristics of this species, I am also satisfied that extensive future damage is likely.
A premise of the Trees Act is that trees provide ecological services, and environmental benefits for individuals and for the broader community, and when s 10(2) is engaged in applications under Pt 2, this premise is reflected in the requirement of the Court to consider relevant tree attributes at s 12 of the Trees Act, prior to finalising orders. A tree's 'value' is a function of obvious characteristics such as its size, age, public amenity, and useful life expectancy along with more subjective factors such as aesthetics, contribution to a landscape, or historical associations.
The tree is large in size, aesthetically appealing with a broad canopied, buttressed rooted form, is highly visible and historically important to the local community, and being endemic, would provide myriad ecosystem services. The arborist report noted the tree has a 'Sustainability Index' greater than 40 years, and I agree - it has a useful life expectancy of 50 years at least. The tree has no listing for heritage nor as a 'Significant Tree' but this tree and similar Fig trees in Hinton are emblematic of the region. As it is thus a valuable tree, it is imperative for the Court to consider and prefer mitigation options that retain the tree's benefits whilst removing the applicants' root problems.
In contemplating orders, I considered the logistics required for installation of a deep reinforced concrete block root barrier, inside the respondent's land parallel to the common boundary. Efforts to deflect and exclude roots from the applicants' land over more than two decades have, however, resulted in a mass of large roots establishing along or near the boundary, and their removal to install a root barrier would cause major impacts on tree health, longevity, and possibly on stability. Inevitable resultant dieback of the canopy would progressively increase the likelihood of structural failure and risk of injury to persons.
As it is unreasonable to order the insertion of a root barrier on the applicants' land, a root barrier is thus not a viable option to prevent likely serious damage. Regrettably, tree removal shall thus be ordered.
When orders are made by the Court, respondents generally carry the financial burden for the execution of such orders, unless there are extenuating circumstances. Though Mr Whybin claimed he should not be liable for the cost of orders made due to the pre-existence of the tree, and the judgment of Black provides for apportionment of liability, I consider the applicants' damage compensation claim withdrawal to constitute a reasonable outcome for Mr Whybin, and a fair apportionment of liability between the parties.
Consequently, the financial burden of the tree removal shall rest with the respondent, with an extended period ordered for the completion of the works in consideration of Mr Whybin's elderly status and financial constraints.
[10]
Orders
The Court orders that:
1. Within 90 days of the date of these orders, the respondent, at his expense, is to engage a suitably qualified (minimum AQF level 3) and experienced arborist, with appropriate insurances, to remove the Moreton Bay Fig Tree, grind the stump, and chase and grind the roots to the common property boundary, all to a depth of at least 300mm below ground level (the works). The works shall be completed within 120 days of the date of these orders.
2. The works are to be done in accordance with the Safe Work Australia (2016), Guide to Managing Risks of Tree Trimming and Removal Work.
3. The respondent is to give the applicants 14 days' notice of the works
4. The applicants are to allow any access to their property required for the works, during reasonable hours of the day.
5. Each party pay their own costs.
[11]
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Decision last updated: 10 November 2023