The Owners - Strata Plan 38217 v Bates - [2022] NSWLEC 1100 - NSWLEC 2022 case summary

Land and Environment Court (NSW)|2022-02-18

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background to the application

COMMISSIONER: Brenda Bates and Neville Bates ('the Respondents') have lived at their Laurieton property for more than 40 years. Trees they planted early on along their northern boundary during grew into large mature trees. To their north, The Owners - Strata Plan 38217 ('the Applicant' or 'the strata plan') experienced issues they say were caused by the trees:

damage to the common boundary fence;
root damage to their driveway and its concrete edging;
root damage to a concrete pedestrian path;
roots growing in garden beds;
structural damage to dwellings (the strata plan includes four units);
roots blocking pipes, including sewer pipes;
branches falling onto their roof;
leaves and other debris blocking roof guttering; and
obstruction of light to windows.

The Applicant has applied to the Court pursuant to both s 7 (Pt 2) and s 14B (Pt 2A) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking removal of remaining parts of all four trees, a new boundary fence, and compensation for damage.

The hearing

The hearing took place onsite. Owners of two of the strata plan's units, Tracy Brack and John Gayner, represented the Applicant as agents. The Respondents were self-represented.

The trees

The four trees in the application are spread out at wide intervals along the roughly 50-metre common boundary. From west to east they are:

T1 - Liquidambar styraciflua (Liquidambar)
T2 - Jacaranda mimosifolia (Jacaranda)
T3 - Ficus benjamina (Weeping Fig)
T4 - Harpephyllum caffrum (Kaffir Plum)

Trees T1, T2 and T4 have been reduced to stumps 2 or so metres tall. Their stumps have been ringbarked. The fig, T3 remains a large tree, partly overhanging the common boundary.

Framework for the Pt 2 application

The key jurisdictional threshold tests under Pt 2 of the Trees Act are set out at s 10 of the Trees Act: 10 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.
Before making any orders as set out at s 9, the Court must consider the matters at s 12 of the Trees Act.

The Applicant made reasonable effort

The Applicant wrote to the Bates setting out their concerns around damage and nuisance caused by the Bates' trees. They attended mediation twice. Not all outcomes agreed to in mediation were completed by the Bates. I am satisfied that the Applicant's effort to reach some agreement was reasonable.

The common boundary fence

The low timber paling fence along the common boundary was erected decades ago. The Bates submitted that a previous owner of the Applicant's property built the fence. While the resilience of parts of the fence belies its age, what remains of the fence (sections are now missing) is in poor condition. Fence sections adjacent to the four trees are lifted and displaced more than other sections along the boundary - this has clearly been caused by the growth of the trees' stems and root buttresses. I am satisfied that the Respondents' trees caused damage to the fence. As per s 13A of the Dividing Fences Act 1991, this gives the Court the jurisdiction to make orders to replace the entire fence. That is the outcome that the Applicant and the Respondents want - a replacement Colourbond fence, 1.8 metres tall, along the entire length of their common boundary. They only disagree on its colour: the Applicant wants either a 'contemporary grey' colour or green, depending on which of their two agents was speaking, while the Respondents want a black fence. The parties are unlikely to reach any agreement on colour. To provide an outcome that should be the least displeasing to any party, I will order a dark grey or charcoal colour.
The parties agreed that the alignment of the common boundary is unclear and that a boundary survey is required. Orders will be made for a boundary survey with its costs shared by the parties.
The only tree, or tree part, interfering with the construction of a new fence is the remaining stump of T4, the Kaffir Plum. Orders will be made to remove any parts required to clear the boundary and to allow access for fence construction.

The driveway and concrete edging

The Applicant's concrete driveway extends for most of the length of the common boundary. Its concrete slabs are not badly cracked, but have been lifted and otherwise disturbed by roots of all four trees, creating an uneven driveway and trip hazards where slabs are separated by expansion joints. The Respondents submitted that movement may be due to environmental conditions, including seasonal soil swelling and shrinkage. I accept that may be the case, but displacement of the driveway is most severe near each tree, where large roots can be seen extending beneath the driveway. I am satisfied that the three trees (T1-T3) along the driveway have caused damage to the driveway.
A concrete strip was installed many years ago along the driveway's southern edge to reduce water run-off into the Respondents' land. It too is cracked, lifted in places, and generally uneven, most significantly near each tree. Its poor condition further from the trees indicates it was poorly constructed and might need replacing regardless of any damage caused by the trees. Nevertheless, I am satisfied that these trees have damaged the concrete edging.
The Applicant obtained a quote of $57,904 to remove and replace the driveway.
Although I find that the Bates' trees have caused damage to the driveway, I am required to consider matters at s 12 of the Trees Act before making any orders.
While there is no doubt in my mind that the trees are the principal cause of damage to the driveway and edging, I note the following.

The driveway is generally still serviceable and trip hazards could be removed by grinding concrete along the joints of adjacent slabs.
The driveway is many decades old and would not be in perfect condition even without the influence of tree roots.
And, most importantly, photographs taken in 2015, included in the Applicant's material, show the driveway and edging were already badly damaged at that time. Although Ms Brack stated that the damage has become worse since then, it does not appear to me that the change has been significant. It was 2015 when the Respondents were first notified of the driveway issues; they have removed most trees since, but not all, and it has taken them some time due to financial constraints. Nevertheless, this does not seem to have caused further damage to any significant extent in the 6-7 years since they were put on notice of damage.

For these reasons, I will not order the Respondents to pay compensation for driveway damage. The nature of the 2015 mediation agreement between the parties did not include compensation, only tree removal at the Respondents' expense. At least some of the unit owners in the strata plan, including both Ms Brack and Mr Gayner have purchased their units since 2015, so came to the situation roughly as it appears now. The condition of their property would have informed their property value at the time of their purchases. Compensation would give them something more, which in my mind would be inappropriate.
The Applicant says damage will continue unless the trees are poisoned and all roots removed, that roots would otherwise continue growing. The three trees reduced to stumps have all been ringbarked and do not appear to be reshooting. Their roots will no longer grow, even if for a period suckers shoot from those roots - suckers which can easily be removed by the property owner where they grow. The Bates do not wish to use poison on their property.
The remaining tree T3, the fig, will cause further damage and must be removed to prevent this. Orders will be made to remove the tree and to prevent any regrowth. With tree removal being ordered by the Court, the Bates are not required to obtain Council consent to remove the tree (s 6(3) of the Trees Act).

Root damage to the path

The pedestrian path near the eastern end of the common boundary is most uneven near tree T4. For the same reasons as those given above, the Respondents will not be required to pay compensation for damage caused by T4 to the pedestrian path.

Roots in garden beds

Requiring the Respondents to remove all roots from the Applicant's garden beds would be onerous. Roots in the garden may be a nuisance, but they have not caused material damage to the garden. No orders will be made for removing roots, nor for compensation for past root pruning done by the Applicant.

Structural damage

No evidence was provided to the Court showing structural damage to dwellings or the causation of any damage. The Court cannot make orders on this element of the application.

Damage to pipes

The Applicant has had sewer pipes cleared on several occasions. Again, without any evidence before the Court demonstrating that blockages were caused by tree roots, and which trees' roots they might have been, I cannot order any compensation for past costs of clearing or repairing pipes, nor for any associated works such as paving repair.

Debris on the roof

The Applicant has paid for gutters to be cleared of leaves and other matter from these trees. The Court's principle established at [20] in Barker v Kyriakides [2007] NSWLEC 292 explains that reasonable property maintenance is expected in leafy urban environments, even where leaves come for neighbouring trees. This situation would not ordinarily give the Court reason to order interference with the tree or compensation, even where debris in gutters might result in some property damage. No orders will be made for compensation on this element of the application.

The Pt 2A application

Pt 2A of the Trees Act "…applies only to groups of 2 or more trees that are planted (whether in the ground or otherwise) so as to form a hedge" (s 14A(1)(a) of the Trees Act). The four trees were not planted at regular spacings. They are different species planted at wide irregular spacings along the boundary. They do not appear in the landscape as a hedge. The four trees are not planted so as to form a hedge and Pt 2A does not apply to them.
Furthermore, the Court's jurisdiction under Pt 2A of the Trees Act is limited at s 14E(2)(a)(i): "The Court must not make an order under this Part unless it is satisfied that the trees concerned are severely obstructing sunlight to a window of a dwelling situated on the applicant's land".
Regarding obstruction of sunlight, the remaining tree is south of the Applicant's dwellings, as were the other three trees. It does not obstruct direct sunlight to the window of any unit. Commissioners Brown and Fakes wrote at [17] of Drewett v Best [2010] NSWLEC 1305: "In coming to this conclusion, we have accepted that the word "sunlight" in the Act is a reference to direct sunlight, rather than just daylight."
Therefore orders cannot be made under Pt 2A of the Trees Act.

Orders

As a result of the foregoing, the Court orders: 1. The Pt 2A application is refused. 2. The Pt 2 application is granted to the extent of the following orders. 3. Within 30 days of the date of these orders the Applicant and Respondents are to: 1. each obtain at least one quote from a registered surveyor for surveying and marking out their common boundary; 2. swap quotes; 3. select the cheapest quote unless they agree on another; and 4. engage the selected surveyor, under an agreement to each pay 50% of the survey cost, to complete the boundary survey and mark-out within 60 days of the date of these orders. 1. Within 60 days of the date of these orders the Respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to remove the Weeping Fig (T3 in the application) to no more than 2m above ground level and so that it is clear of the boundary and allows any access required for fence construction along the boundary. The works are to be done in accordance with the 2016 Safe Work Australia 'Guide to managing risks of tree trimming and removal work'. The Respondents are thereafter to take any action necessary to prevent regrowth of the tree from its stump. 2. Within 60 days of the date of these orders the Respondents are to remove, or engage a contractor to remove, any parts of the Kaffir Plum (T4 in the application) that will obstruct or otherwise prevent access for constructing the boundary fence. 3. Within 60 days of the date of these orders the Applicant and the Respondents are each to obtain and provide to the other party at least one quote, made out to both the Applicant and the Respondents with each to pay 50% of the cost, from a fencing contractor for: 1. removing the fence along their common boundary; 2. clearing the minimum amount of vegetation and other material required for fence construction; and 3. constructing a new fence along the marked out common boundary as follows: a 1.8m tall steel panel (e.g. Colourbond) fence, dark grey in colour (e.g. 'Ironstone'®) on steel posts at least 600mm into the ground secured with concrete in the ground. 1. Within 7 days of swapping fencing quotes in order (6), the parties are to select the cheapest of the fencing quotes, unless they agree on another quote. The parties are to engage the selected contractor under a fencing agreement, in which the Applicant agrees to pay 50% of the cost of the works and the Respondents agree to pay 50% of the cost of the works, to carry out the fencing works as quoted in (6) within 120 days of the date of these orders. The parties are to pay the contractor as per the terms of the agreement. 2. The parties are to allow all access necessary for the fencing contractor to complete the works during reasonable hours of the day. I certify that this and the preceding 8 pages are a true copy of my reasons for judgment.

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: 25 February 2022

The Owners - Strata Plan 38217 v Bates

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Judgment (16 paragraphs)

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