Stanberg v Adams [2010] NSWLEC 1129 | Case summary

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Brougham Place Raby against the owners of an adjoining property. 2 The applicant is seeking the removal of 5 trees, 1 shrub and a Bougainvillea. He is also seeking compensation for the removal of the root systems of these plants from his property. 3 The applicant is also asking for compensation of $880.00, that being the amount quoted to remove and replace a section of storm water pipe that he states has been damaged by one of the respondents' trees. 4 The applicant is seeking these orders as he contends that each of the plants has caused, or has the potential to cause, damage to his property. He specifically wants no risk to his property from the respondents' trees, in his words, "to infinity". 5 By way of background, the applicant moved into his property at least 20 years ago and the plants subject to this application were present at that time. The respondents have owned their property for about 12 years. 6 All of the plants are located along the eastern boundary of the respondents' property. This property is upslope of the applicant's. The applicant's property has been cut into the slope to create a level building block, and is subsequently about 1m lower than the respondents' block. 7 Along the western boundary of the applicant's property there is a strip of land about 1m wide that approximates natural ground level. This is retained by a timber sleeper retaining wall that is more than 20 years old. A substantial section of this retaining wall is leaning towards the applicant's house and a part of it has failed. The soil it retains is clay. The applicant is in the process of building a new retaining wall at the southern end of the property but this is only partially constructed and the timber retaining wall remains along the full extent of that boundary. 8 Each of the plants subject to this application must be considered individually, and an assessment made in accordance with s 10(2) of the Act. This section states that the Court must not make an order unless it is satisfied that any of the trees 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. 9 Before considering each of the trees and shrubs in turn, it is important to consider a jurisdictional issue with respect to the Bougainvillea. 10 Bougainvillea is generally classified as a "climbing or scrambling" plant. Climbing plants or vines are not currently trees for the purposes of this Act and therefore the Court has no jurisdiction to make orders with respect to this plant - see Buckingham v Ryder [2007] NSWLEC 458. 11 Even if I am wrong on the jurisdictional issue, the damage said to have been caused by this plant is overgrowing the applicant's roof, blocking light and being a fire hazard. The applicant contends that the roots could penetrate his sewer and other pipes. At the on-site hearing, the plant was not overgrowing the applicant's property and was quite contained on the respondents' property and there was no evidence of any roots or of any actual damage. The risk of it being a fire hazard is no more than any other plant in any other nearby garden. 12 The current version of the Act does not apply to light - as restriction of light is "not damage to property on the land" - see Robson v Leischke [2008] NSWLEC 152 at para 173. 13 Therefore, as I say, if I am wrong on the classification of Bougainvillea as a 'vine', and therefore on the Court's jurisdiction, as none of the tests under s 10(2) are satisfied, the application to remove this plant is dismissed. 14 The remaining plants are discussed from south to north. 15 It was agreed that tree 1 could be a Cupressus macrocarpa (Monteray Cypress) although it is possible that it is X Cupressocyparis leylandii. The applicant contends that the roots from this tree have damaged a retaining wall and have lifted pavers. He also claims that debris from the tree has fallen into his pool and that this affected the pool pump. He also states that a build up of debris, presumably on the respondents' side of the fence, has diverted the natural flow of water onto his property and this could cause damage to both the new and the existing retaining walls. He is also concerned that the roots of the tree will invade the pool piping. 16 The tree has been cut back beyond the fence-line. The only evidence the applicant was able to produce to support any of his concerns about root incursion into his property were several small sections of conifer root about 25mm in diameter. The applicant stated that he removed these from under a section of the new concrete block retaining wall and from under some pavers he said he had re-laid. 17 However, on his admission, there is no damage to the new retaining wall or to the pavers that could be demonstrated and I saw no evidence of any damage to either of these elements. There was no evidence that roots had caused any damage to the sleeper retaining wall. Similarly, there was no evidence of material from the respondents' tree that may have damaged the pool pump. In this regard, there are plants on the applicant's property that overhang his pool. 18 With respect to the run-off of water onto the applicant's property, there was no evidence that this is directly, or even indirectly, linked to the presence of trees. As previously stated, the respondents' property is upslope of the applicant's property. 19 The applicant was reminded that the onus is on the applicant to prove, 'on the balance of probability' that the damage to his property he says has occurred, or could occur, is due to a tree subject to the application. 20 With respect to possible future damage, the Court has consistently applied the guidance decision given in Yang v Scerri [2007] NSWLEC 592 at para 14, the Court determined the following meaning of 'the near future'. Ordinarily, the near future would involve a time period extending from the date of determination of the application to 12 months. After 12 months, it would be difficult to describe a period as being " in the near future " or being close in time to the date of determination of the application. We say "ordinarily" because there may be, in the particular circumstances of the case, reason to adopt a longer period than 12 months. The adoption of a 12 month rule of thumb period means that in order to satisfy the third test in s 10(2)(a), the tree concerned would need to be likely to cause damage to property within a period of 12 months after the date of determination of the application. If it is not likely to do so within that period but rather in a longer period, the third test in s 10(2)(a) could not the satisfied and the Court would have no power to make an order in relation to the tree (assuming that no other test under s 10(2)(a) or (b) is satisfied). This would not prevent a further application being made in the future if the tree concerned becomes likely, in a future period beyond 12 months, to cause damage to property. 21 This applies to many of the applicant's contentions for most of the trees, and with respect to tree 1, to the possible invasion of the pool pipes by tree roots. 22 As none of the tests under s 10(2) are satisfied for this tree, the Court has no jurisdiction to make an order and therefore the application to remove the Cupressus macrocarpa is dismissed. 23 Tree 2, identified in the application as a Callistemon, is a Melaleuca armillaris (Bracelet Honey Myrtle). In his application, the applicant claimed that this tree was damaging the dividing fence and overhanging the clothesline. 24 In Robson v Leischke [2008] NSWLEC 152 at 56, Preston CJ states that mere encroachment is not damage, and in 169 that damage must be proved. 25 At the on-site hearing, the applicant conceded that the tree was not damaging the fence and it was clear that overhanging branches had been removed. 26 Therefore as none of the tests under s 10(2) are met, the application to remove this tree is dismissed. 27 Tree 3 was identified in the application as a Cupressus torulosa (Bhutan Cypress) but is X Cupressocyparis leylandii 'Naylor's Blue'. The applicant contends that the damage caused by this tree is "soil push from root system and water diversion has caused flooding and retaining wall to collapse [sic]". 28 The collapsed area of the sleeper retaining wall was inspected. It appears that one of the vertical timber posts/sleepers that support the horizontally laid sleepers that retain the soil has failed and the horizontal members have been unable to retain the clay soil. There were no visible roots of any size that could have caused this collapse. The applicant was unable to demonstrate the connection between the tree and the collapse of the wall. Nor was there any evidence to suggest that this would occur in the near future.

29 As none of the tests under s 10(2) are satisfied with respect to this tree, the application to remove the tree is dismissed. 30 The application also indicates that the applicant seeks the removal of a Thuja orientalis. However no specific problems were identified as being caused by this tree. There was no evidence produced at the hearing that supported its removal or demonstrated that it posed any greater risk to the applicant's property than the other trees discussed in this judgement. Therefore, as none of the tests under s(10) are met with respect to this tree, the application to remove it is refused. 31 Tree 5 is a Cupressus sempervirens var. stricta (Italian Cypress). The applicant contends that roots from this tree have penetrated and blocked a section of his storm water pipe. He is also concerned about the fallout of debris from the tree, especially when cockatoos are feeding on it. He contends that the tree has the potential to fall over as well as the potential to invade his sewer pipes. He also claims that it is pushing over the sleeper retaining wall. 32 The only evidence to support any of the fears and contentions listed above is that the applicant was able to show me a small mass of fine roots that had been extracted from the junction of the stormwater pipe and the downpipe located on the south-western corner of his house. They were clearly coniferous roots and, from the evidence seen on site, it is highly probable that they came from the Italian Cypress. The applicant confirmed that the remainder of the storm water pipe was free of roots. 33 By the applicant's admission, these roots had entered through an imperfect joint in the pipe. It was also made clear at the hearing that the applicant had not advised the respondents of this problem when he discovered the damage in February this year. Thus the respondents were denied the opportunity to take action. 34 With respect to the potential risk of whole tree failure or future damage to the sewer and so on, there is no evidence that any of these scenarios are likely to occur in the current circumstances. 35 However, as one of the tests under s 10(2) is satisfied for this tree, the jurisdiction is enlivened and the Court may make an order. 36 If an order can be made, a number of matters under s 12 of the Act must be considered. Relevant in this case is that the applicant did not notify the respondents of the damage to the storm water pipe and there was an imperfect joint that allowed the ingress of a root. 37 Section 9 of the Act gives the Court a range of discretionary powers in terms of what orders may be made. In the case of the Italian Cypress, the remedy sought by the applicant is its removal. I consider this to be disproportionate to the actual damage caused by the tree and not justified; hence the application to remove the tree is refused. However, an order will be made for a financial contribution from the respondents for the repair of the storm water pipe. 38 Tree 6 is a Nerium oleander (Oleander). The applicant contends that roots from this plant have been discovered near some of his pipes and therefore there is the potential for the roots to cause damage. An unidentified root that had grown under the fence and had then been severed was shown to me. There was no evidence that this was from the Oleander nor was there any evidence of actual or potential damage. 39 Therefore as none of the tests under s 10(2) have been met for this plant, the application to remove the oleander is dismissed. 40 In conclusion, only one element of the applicant's contentions has be proved, and the Orders of the Court are: 1. The application to remove the trees and their roots is dismissed. 2. The applicant is to obtain 3 quotes to remove and replace the joint/ connection between the bottom of the downpipe and the southern end of the storm water pipe located near the south-western corner of the applicant's property. No more than 500 mm of storm water pipe is to be removed and replaced. 3. The respondents are to be provided with a copy of the quotes within 21 days of the date of these orders. 4. The respondents are to nominate the preferred quote and advise the applicant of their choice within 7 days of the receipt of the quotes. 5. The respondents are to pay the applicant 40% of the cost of the works within 21 days of the receipt of a tax invoice for the completed works. 6. The works are to be completed within 60 days of the date of these orders otherwise order 5 lapses.

Stanberg v Adams

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