The Owners - Strata Plan No 17467 v The Owners - Strata Plan No 22319 - [2024] NSWLEC 1596 - NSWLEC 2024 case summary — Zoe

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The Owners - Strata Plan No 17467 v The Owners - Strata Plan No 22319

[2024] NSWLEC 1596

Land and Environment Court (NSW)|2024-06-24

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2024-06-24

Source

Original judgment source is linked above.

Judgment (20 paragraphs)

[1]

Background

COMMISSIONER: A tree dispute arose some years ago between two residential apartment complexes on adjoining properties in North Sydney. At 12-14 Bay Road, five mature trees stand in the narrow garden bed between a driveway and the common boundary shared with 16 Bay Road. The trees overhang both properties. Residents at 16 Bay Road have found their property affected by the trees: branches have fallen from the trees onto a driveway and onto parked cars at 16 Bay Road; the driveway at 16 Bay Road has become uneven; a sewer pipe at 16 Bay Road became blocked; and a retaining wall at 12-14 Bay Road became destabilised. Over several years, via their respective strata committees, The Owners - Strata Plan No 17467 (the applicant, at 16 Bay Road) corresponded with The Owners - Strata Plan No 22319 (the respondent and owner of the subject trees at 12-14 Bay Road), outlining their issues with the trees. Various reports were obtained by both parties from arborists and an engineer.
In 2022, "as an act of goodwill" (13 May 2022 letter from the respondent to the applicant, in Exhibit 1) the respondent applied to North Sydney Council (Council) to remove the five trees, despite being of the view that the trees were healthy and the applicant's driveway could be inexpensively re-levelled without requiring tree removal. Council refused the application, explaining that their policy does not approve the removal of healthy, protected trees on the basis that their roots are lifting paved surfaces.
On 3 April 2024, The Owners - Strata Plan No 17467 applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the respondent to (summarised here):

remove four trees;
prune one tree annually;
repair or replace the respondent's retaining wall; and
compensate the applicant for sewer pipe repairs.

In case the Court would not order tree removal, the applicant sought orders for the respondent to (summarised here):

[4]

Jurisdiction to make orders

The Court's jurisdiction to make orders is set out at s 9 of the Trees Act. 9 Jurisdiction to make orders (1) The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned. (2) Without limiting the powers of the Court to make orders under subsection (1), an order made under that subsection may: (a) require the taking of specified action to remedy damage to property, or (b) require the taking of specified action to restrain or prevent damage or, if damage has already occurred, further damage, to property, or (c) require the taking of specified action to prevent injury to any person, or (d) require the making of an application to obtain any consent or other authorisation referred to in section 6 (1) (a), or (e) authorise the applicant concerned to take specified action to remedy, restrain or prevent damage or (if damage has already occurred) further damage to property, or (f) authorise the applicant concerned to take specified action to prevent injury to any person, or (g) authorise land to be entered for the purposes of carrying out an order under this section (including for the purposes of obtaining quotations for the carrying out of work on the land), or (h) require the payment of costs associated with carrying out an order under this section, or (i) require the payment of compensation for damage to property, or (j) require the replacement of a tree that the Court orders to be removed and for the new tree to be maintained to a mature growth.
The Court can make orders to prune and remove trees, such as those sought by consent orders (1)-(3). Although s 9 refers to property without any restriction to property on particular land, the sequence of these sections, with s 7 preceding s 9, suggests that the Court's jurisdiction to make orders is restricted to property encircled by s 7, being property on the applicant's land. Consent order (4) seeks repair works to property on the respondent's land. This is considered further below.

[12]

The respondent's retaining wall - whether orders can be made

The trees stand in a narrow garden bed along the respondent's side of the common boundary. The garden bed's surface is around the same height as the applicant's driveway on the other side of the boundary fence. A log retaining wall supports the garden bed's soil next to the respondent's own driveway, which is lower.
Mr Jackson found the retaining wall was displaced by trees T2-T5 (pp 5 and 7 of Exhibit D). Mr Paroissien found that roots of T4 are displacing the respondent's retaining wall. My observations during the onsite hearing confirmed that roots of T2-T5 have, to varying degrees, displaced the retaining wall.
Mr Elsusu found that tree roots have compromised the retaining wall. He did not identify which individual trees have caused damage. He opined that failure of the retaining wall is likely to compromise the applicant's driveway. That is, the trees are likely to damage the applicant's driveway by causing the respondent's retaining wall to fail.
Orders can be made to prevent damage to the applicant's property if the trees have caused, are causing, or are likely in the near future to cause, that damage. The retaining wall has not failed, nor is it failing. I accept that damage to the applicant's driveway resulting in the near future from failure of the respondent's retaining wall, should that failure be caused by roots of one of the trees in the application, would amount to damage caused by that tree. Following the tree principle established in Yang v Scerri [2007] NSWLEC 592 at [14], I consider that a period of the next 12 months represents the near future. Mr Elsusu only found the wall was compromised. He did not conclude that its failure is imminent, nor that it is likely in the near future. Although roots of the respondent's trees have displaced the retaining wall, the evidence does not satisfy me that the wall is likely to fail within the next 12 months. It follows that no orders can be made on this element of the application.
I note here that the respondent submits that it will proceed with repair works to the retaining wall regardless of the outcome here. The parties were seeking to formalise this agreement to ensure that the works are done. I further note that the agreed quote for the works, from All Hills Fencing, includes the following: "Cut out interfering tree roots where possible." While the Court makes no orders here for the retaining wall, it would be prudent for the respondent to obtain arboricultural advice should any roots need to be cut that close to the trees.

[16]

Whether the trees are likely to cause injury

The applicant submits that its driveway's uneven surface, a result of tree root growth, creates a trip hazard. The driveway is an emergency exit route for residents in case of fire, so the trip hazards must be removed.
Although the driveway surface is uneven, it is still being used by pedestrians and vehicles. The applicant did not suggest that anyone has tripped, so I am not satisfied that anyone is likely to do so in the near future. No orders can be made on this element of the application.
The applicant submits that branches could fall from any of the trees and cause injury. Mr Jackson noted minor deadwood within the trees but recommended removal of deadwood from T1 only. Mr Paroissien observed that none of the trees had signs of large-diameter branch failure. He observed the presence of minor deadwood in the trees' crowns and recommended its removal.
The applicant submits that a long branch of T5 extends above the applicant's building and poses a risk of damage and injury. The applicant's plan at question 2 of the claim details form (Form H in Exhibit A) shows T5 is the northernmost tree. At question 9 of Form H the applicant cites Mr Paroissien's findings in regard to this tree, but Mr Paroissien's comments relate to his 'Tree 6', which is T2 in the application and in this judgment.
Mr Roberts submitted for the respondent that the respondent understands the seriousness of the risk of deadwood falling from the trees. The respondent engages an arborist to carry out an annual inspection of the trees and to undertake any necessary works for risk mitigation, as shown by invoices in Exhibit 1. Before Mr Roberts became involved, it seems that annual pruning focussed on branches over the respondent's property. Since becoming involved, Mr Roberts has ensured that pruning mitigates the risk over both properties. The respondent provides the arborist with instructions to remove deadwood and hazardous branches from all trees and to maintain their crowns.
From the respondent's point of view, past issues around the risk of falling branches are now resolved. Mr Spry submitted for the applicant that, while the applicant appreciates the ongoing inspection and pruning of the trees, they want the arrangement formalised via orders from the Court.
Considering recent history and the current situation, it seems reasonable to expect that the respondent will continue the annual tree inspection and maintenance routine. Therefore, I find it unlikely that deadwood will fall and cause injury in the near future.
Applying my own arboricultural expertise, I observed during the onsite hearing the branch of T2 referred to by Mr Paroissien. I noted the overextended nature of low branches on the western side of the tree's crown, and particularly the long branch to the north-west extending toward the applicant's building. Failure of one of these branches is likely in the near future, and damage or injury would likely result. Therefore, the Court can make orders on this element of the application.

[17]

Consideration of relevant matters before making orders

I have found, above, that orders can be made on some, but not all, elements of the application: roots of T2 and T5 have damaged the applicant's driveway; a branch of T1 damaged a car on the applicant's land; and T2 is likely to cause damage or injury by way of hazardous branches falling onto the applicant's land.
Before making any orders, the Court is to consider the matters at s 12 of the Trees Act. I consider relevant matters below.
The trees are alongside the common boundary (s 12(a)). The root buttress of T5 extends slightly across the boundary. The trees' crowns spread over both the applicant's and respondent's properties. They overhang the applicant's driveway, parking area and building. Roots of all five trees spread into the applicant's land.
The Court is to consider whether interference with the trees would, in the absence of Court orders, require consent under the Environmental Planning and Assessment Act 1979 (the EP&A Act) or the Heritage Act 1977 and, if so, whether such consent has been obtained (s 12(b)). To remove the trees, or to prune them significantly, the respondent would ordinarily require consent from Council. All five trees are 'declared trees' according to the North Sydney Development Control Plan 2013 (the DCP). Removal of deadwood, and other minor pruning for tree maintenance, would not require Council's consent. The respondent applied to Council to remove all five trees in 2022. The application included the reports of Mr Jackson, Mr Paroissien and Mr Elsusu. Council refused the application. In Council's response refusing the application (Exhibit F), Tree Preservation Officer Melanie Hamilton wrote: "I refer to your application to remove 5 trees on the Western boundary line of 12-14 Bay Road, Waverton (SP 22319). The arborists report submitted with the application (Jacksons Nature Works dated 6 April 2021 & Landscape Matrix dated 21 September 2018) confirm that the trees are healthy specimens and do not recommend their removal. The Engineers report (Noviion Engineering dated 8 November 2021) confirms subsidence to the existing paved driveway at 16 Bay Road, Waverton. However, North Sydney Council does not approve the removal of healthy trees that are protected by the Tree & Vegetation Management policy because the roots are lifting paved surfaces. Paving stones are placed on a sand bed and roots from vegetation grow under the pavers. The solution to this common [sic] is to prune the surface roots (with guidance from an independent Arborist) or build a driveway on elevated piers so that the roots can grow under them. The reports confirm that the damage to the wooden retaining wall within your property is due to poor construction and the exertion of the surface tree roots. The report from Landscape Matrix provides recommendations for tree protection and structural root zone of the trees during the necessary repairs."
The only additional report available to the Court that was not available to Council in 2022 is Mr Williams' root investigation report. That report demonstrates the situation that was assumed and considered by Council at the time: that tree roots have disrupted the applicant's paved driveway and parking area.
When determining an application for a Tree Management Permit, Council must consider (Provision 3 of Clause 16.2.2 of the DCP): "(a) the health or condition of the tree or trees, whether the tree is dead or dangerous, its proximity to existing or proposed structures, interference with utility services, interference with the amenity of any person or property; (b) the necessity for action in order to construct improvements to the property the subject of the application to achieve reasonable development; (c) the effects in the nature of erosion, soil retention or diversion or increases to overland flow; (d) the number of trees in the surrounding area and the effect on the amenity of that area; (e) the number of healthy trees that a given parcel of land will support; (f) whether the trees or vegetation in question provide habitat for fauna and/or canopy connectivity; and (g) any potential impacts to heritage items and/or heritage conservation areas."
According to Provision 5(c), "Council does not support the removal of trees or vegetation as a result of… cracking of driveways, footpaths, paving or fences." This is followed by some exceptions described in Provision 6: "Despite P5 above, Council may consider on merit the removal of trees or vegetation which result in the blocking of water, sewer or stormwater pipes or the cracking of driveways, footpaths and paving if there are no permanent repair solutions available (e.g. where tunnelling or re-sleeving of pipes, or removal of roots is not feasible). Council must not determine an application to which this clause applies, unless it has considered additional supporting documentation (e.g. an arborist report prepared by a qualified arborist with a minimum AQF Level 5 or engineering report) supplied by the applicant to justify the removal of the tree or vegetation."
Council followed the process set out in the DCP when refusing the application for tree removal. It is important to note here that the Trees Act requires the Court to consider this. Were there no dispute - for instance, if the trees and paved driveway were all on the one property - the owner would need to proceed with alternatives to tree removal such as those suggested by Council.
Council considered the additional supporting documentation provided by the respondent and determined that reasonable alternative repair solutions that would allow tree retention were available. With the benefit of my onsite observations and Mr Williams' root investigation report, I would not order works that include pruning of surface roots. However, considering the nature of the paved driveway and carparking area, the paved driveway and parking area could be repaired without the need for expensive engineering solutions.
Mr Elsusu recommended removing all trees and their roots to allow repair of the driveway and to prevent damage to the building. If the trees were retained, he recommended a driveway on piers to protect roots. He wrote (p 6 of Exhibit C): "It is important to note that any driveway situated on the ground without the removal of the trees will result in cracking, uplifting and subsidence of the driveway." The applicant referred to standards and codes for new driveways and drainage, but presented no evidence to show that these would apply to repair of the existing driveway.
The respondent submits that the driveway could be repaired by removing pavers, levelling the soil over tree roots, and relaying the pavers. I agree with this. A driveway supported by piers is not required. While Mr Spry opined that a permanent solution is needed, Mr Roberts argued that some reasonable future maintenance should be accepted. The costs and consequences of relaying the driveway over roots need to be weighed against the benefits of the trees, which I consider further below.
Pruning T2 to remove hazardous branches would not adversely affect that tree (s 12(b2) of the Trees Act). The ongoing crown maintenance of all five trees, including deadwood removal, would have no negative impacts. The respondent once proposed pruning all branches of all five trees back to the boundary: that would adversely affect the trees' health, viability and amenity.
The trees contribute to protection from sun and wind and they enhance the amenity of the respondent's property (s 12(b3)). They provide considerable ecosystem services including cooling, reducing water run-off, carbon sequestration and pollutant removal.
The trees are indigenous to the area and contribute to the local ecosystem and biodiversity (s 12(d)).
Being so tall, the trees contribute significantly to the respondent's natural landscape (s 12(e)) and to public amenity (s 12(f)).
The trees' overall benefits are significant, and warrant some additional costs for their protection. The EP&A Act recognises the value to the broader community of vegetation on private land by providing the means for its protection. While it is usually a tree owner that bears some cost for this, others in the broader community may also bear some cost, including neighbours such as the applicant in these proceedings.
The respondent submits that the applicant has let the driveway degrade over time (ss 12(h) and 12(i)). I observed that the driveway has received little maintenance. The applicant has not taken steps to mitigate trip hazards. Trees on the applicant's land have also contributed to the driveway's current condition.
The respondent has established a routine for having the trees inspected and maintained by an arborist. The Court notes this arrangement and relies on the respondent's submissions regarding its commitment to continue the arrangement. Other than orders to mitigate specific hazards identified earlier in this judgment, I see no need for Court orders for ongoing tree maintenance and risk management.