Turner v Garlick

Turner v Garlick - [2014] NSWLEC 1159 - NSWLEC 2014 case summary — Zoe

The application 1In Fern Bay the landscape is dotted with established trees among dwellings on large residential lots. One such tree ("Tree 1") is a mature fig (Ficus microcarpa) growing within the property of Mr and Mrs Garlick ("the respondents") in the northwest corner near their rear boundary. Mr and Mrs Turner ("the applicants") live at an adjoining property. Their property fronts a different street to the Garlick property so the section of common boundary is part of the Turners' side boundary but the Garlick's entire rear boundary. The fig tree is only several metres from the rear of the Turners' dwelling, that part of the dwelling being additions added to the original dwelling in 2008. Two smaller figs ("Tree 2" and "Tree 3") of the same species grow in the southwest corner of the Garlick property further distant from the Turners' dwelling, but close to the Turners' garden shed. 2The Turners have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for removal of the three trees and repairs to their property, on the basis that the trees have caused damage, are likely to cause further damage and are likely to cause injury. The damage they say the trees have caused is through root growth, and comprises: (a)displacement of the fence on the common boundary; (b)movement of the garden shed slab such that a crack is present in the slab and the doors close only with some difficulty; and (c)lifting and displacement of pavers alongside their dwelling. 3The Turner's application included alleged damage to their bathroom floor but this part of the claim was not pressed during the hearing. 4The injury they say is likely results from what they say are trip hazards caused by the lifted pavers and by surface roots in their lawn. 5The Garlicks dispute most of the claims regarding causation by their trees. They say that while roots might have contributed to paver displacement, water movement within and over the ground is more likely to be the major cause. They say if roots have caused damage elsewhere it is a result of the Turner's own actions, such as their building works falling short of regulatory requirements and irrigation of the lawn encouraging tree root growth. The Garlicks do not want to remove any of the trees, which they say provide shade and cooling to their dwelling and contribute to the amenity and privacy of their property. Despite this, they have offered to remove one of the smaller figs and to prune the other small fig. 6I must establish firstly if the Court has jurisdiction to make orders. The key tests are at s 10 of the Act. Only once I am satisfied that the Court's jurisdiction is engaged can I make orders, which are not necessarily those sought by the applicants but are orders that I see fit to deal with the situation, as set out at s 9. Before making any orders I must consider a range of discretionary matters at s 12.

[5]

The shed 11The Turners' garden shed was constructed in 2007, shortly before the additions to the dwelling. It is a lightweight construction atop a concrete slab. There is a crack up to a few millimetres wide extending east-to-west across the slab, beginning on the eastern side immediately adjacent to the base of Tree 2, where it is widest, and dividing as it reaches the western side. The shed doors have been slightly displaced and take some effort to close them. 12Having viewed the situation, the proximity of the crack to the tree, its alignment along the likely line of root growth away from the tree, and the absence of other possible causes, I am sufficiently satisfied that root growth from Tree 2 has caused cracking of the slab. Considering the proximity of both Tree 2 and Tree 3 to the shed, I also find it likely that both trees may cause further damage to the slab within the next 12 months, which is a suitable period to consider as the near future (see Yang v Scerri [2007] NSWLEC 592). Subsequently, according to s 10(2)(a) of the Act, the Court's jurisdiction is enlivened and orders can be made for Tree 2 and Tree 3. 13Mr Garlick submits that the shed does not comply with the requirements of relevant building codes. This is a matter to be weighed within the discretion of s 12 and is not a jurisdictional test. Mr Turner says he spoke with a representative of the local council before the shed was constructed and was informed that it did not require a permit. 14Even if I accept Mr Garlick's submissions, the jurisdiction under the Act does not include enforcement of building codes. While I consider that the shed's location and its standard of construction are relevant issues, and may have contributed to the damage, I would not find here that rebuilding of the shed is required or that the need for such would outweigh the loss of the smaller trees. In these circumstances I am satisfied that removal of Tree 2 and Tree 3 will prevent further damage and that this is an appropriate course of action. Mr Garlick has offered to reduce the height of one of the trees, but that would not resolve the problem of root damage. 15Further matters to be considered at s 12 include the trees' contribution to amenity, privacy, shading and cooling. The Garlicks made submissions, especially with regard to Tree 1, that they gain significant summer afternoon cooling from the trees. They appreciate the amenity and have a strong sense of attachment to Tree 1 in particular. Considering Tree 2 and Tree 3, I find that the benefits they provide are significantly less than the benefits of Tree 1. In weighing these against the likelihood of damage and the options for its prevention, I find that the removal of these two trees is appropriate. 16Therefore orders for removal of both Tree 2 and Tree 3 will be made. The trees were present when the shed was built. The large garden would have accommodated a shed elsewhere. In Black v Johnson (No 2) [2007] NSWLEC 513 the Commissioners set out the following "Tree Disputes Principle" at paragraph (15): The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration. If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work. However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of: the type of tree planted; and the suitability of the location in which it has been planted. Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential. 17Therefore, some apportionment to the applicants of the costs of tree removal is appropriate. In this case, and in the absence of submissions regarding this, I will apportion the costs 50/50.

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