Ward v Fotu-Moala

Land and Environment Court (NSW)|2024-09-04

and Removal Work, 2016 Category: Principal judgment Parties: Julie-Anne Macarthur Ward (Applicant) Sione Fotu-Moala (First Respondent) Natasha Fotu-Moala (Second Respondent) Representation: J Ward (Self-represented) (Applicant) S Fotu-Moala (Self-represented) (First Respondent) N Fotu-Moala (Self-represented) (Second Respondent) File Number(s): 2024/139168 Publication restriction: Nil

Judgment

Background
COMMISSIONER: Julie-Anne Macarthur Ward, the applicant, has owned a property in Noraville since 1992, which she leases to tenants. Sione and Natasha Fotu-Moala, the respondents, have occupied the neighbouring property to the east since 2005. The parties share a side boundary oriented from north at the street to south at the rear.
Mrs Ward alleged that an Araucaria heterophylla (Norfolk Island Pine) (the tree) growing in the respondents' front yard close to the common side boundary had damaged her property's driveway, a section of common boundary fence, and stained a tenant's car.
The tree was about 17 metres (m) tall with a canopy spread averaging about 11 m, and trunk diameter at breast height (DBH) of about 750 millimetres (mm). Mrs Ward noted having initially approached the respondents about removing the tree in March 2021 and making additional requests following advice from an arborist that the tree was also likely to damage her dwelling.

The onsite hearing

Both parties were self-represented at the onsite hearing of 6 June 2024, and the applicant was accompanied by Mr Ward. The tree, the common boundary fence, and the driveway were readily accessed for assessment of damage, after which the parties made oral submissions. Mrs Fotu-Moala contended that the tree was small but established upon her initial occupation in 2005, that the driveway was in reasonable condition in 2009, and that the boundary fence was installed over the tree's raised roots in 2017.
The applicant's proposed orders are: 1. "Removal of the neighbours' tree, which is damaging the driveway, the fence, and potentially the foundations of my house; 2. Restoration of the current damage to the driveway and fence; 3. Compensation to my tenant for damage to the paintwork of her car, caused by the tree."

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 7 is satisfied as both parties own their respective adjoining properties and Mrs Ward claimed that Mr and Mrs Fotu-Moala's tree is damaging her property.
Section 8(1) of the Trees Act is satisfied as Mrs Ward provided evidence of service of the application and the orders sought on the respondents (s 8(1)(a)), and Council (s 8(1)(b)), more than 21 days prior to the proceedings.
Section 9 of the Trees Act provides the jurisdiction for the Court to make a wide range of orders.
Section 10 of the Trees Act details 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.
Mrs Ward provided copies of various requests to the respondents since 2022 to remove the tree and attempts to organise mediation through a CJC. This evidence satisfies s 10(1)(a), requiring the applicant to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated. Notice of the application was provided in accordance with s 8, therefore s 10(1)(b) of the Trees Act is also satisfied.
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.
If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Trees Act.

Findings

No driveway concrete had been excavated or moved aside to allow observation of roots or possible alternative causes of damage. Although Mrs Ward reasonably assumed that the raised and broken areas of driveway concrete were caused by roots from the adjacent tree, no conclusive evidence of a causal link was provided.
In Stevens v Russell [2016] NSWLEC 1233 at [40], Fakes C said: "it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required."
Alternatively, the respondents speculated that eroded soil and organic matter washed or blown under the uplifted concrete was also responsible for driveway damage. In the absence of concrete excavation, however, the location of roots, the impact of erosion and deposition of soil, the likelihood of future dwelling damage, and whether root pruning was a viable option, remained unknown variables.
Though the respondents sought to prevent damage to either party's dwelling and acknowledged that tree removal may be required, given the uncertainty as to the cause or causes of the applicant's driveway damage, and the significant public amenity provided by the tree's tall, healthy, dense canopy, the respondents resisted removal of the tree. As Mrs and Mr Ward appeared to similarly appreciate that such additional evidence would clarify and assist their claim, I made the following interim orders and adjourned the hearing: 1. The applicant shall contract an Australian Qualification Framework (AQF) level 5 arborist (the arborist), with appropriate insurance, to investigate and record the location and size of tree roots under raised concrete driveway sections, determined at the onsite hearing. Findings must be collated in a report which includes high quality photographs displaying measurements of roots. The arborist's report shall be emailed to the respondents and submitted to the Court, attention Douglas AC, by 4:30pm on Thursday 18 July 2024. 2. The respondents shall provide historical time stamped photographs of the applicant's driveway to assist with determination of a chronology of driveway damage. The photographs shall be collated in a document, which shall be emailed to the applicant and submitted to the Court, attention Douglas AC, by 4:30pm on Thursday 18 July 2024. 3. A final hearing has been scheduled for Monday 29 July 2024. Upon assessment of the parties' submissions, the Court will determine whether the hearing shall again be onsite, or by telephone or AVL communication.

Hearing resumed in Court

The hearing resumed in Court on 24 September 2024 with the parties attending by AVL and telephone. Mrs Ward had submitted an arborist report (the report), dated 23 June 2024, from Ian Hill's, an AQF level 5 arborist of Accurate Tree Assessment. As ordered, the report was clear and concise, with observations supported by high quality images. The minimum distance from the tree's trunk to the applicant's dwelling was noted as 3.725 m.
Damage caused by the tree
I was satisfied that exposed roots, displayed in Figures 1-4 and Figure 6 of the report, were from the tree and were the primary cause of the driveway concrete damage. As noted in the report, roots of trees in the genus Araucaria have distinctive bark and distinctive resin exudation, and both were conspicuous in the images. Further, no other substantial sized tree was growing nearby. Consequently, I was satisfied of the nexus between the damage and the tree's roots such that 10(2)(a) of the Trees Act is engaged.
Figure 6 displayed a fine crack in the concrete garage floor slab above a root with a diameter of about 130 mm that appeared to extend directly under the slab. The jurisdiction of the Trees Act covers damage likely to be caused by a tree in the near future. 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 location of the crack and the root, and the considerable vigour of the tree, I am satisfied that further cracking, and damage to the concrete slab is likely in the next 12 months. Therefore, s 10(2)(a) of the Trees Act is again engaged.
I am also satisfied that the tree's thickening trunk and roots had damaged the common front boundary fence and levered it out of alignment, which also engaged s 10(2)(a) of the Trees Act.
I was not persuaded, however, by Mrs Ward's submission regarding damage to her tenant's vehicle, which comprised a claim for compensation of $640.00 for "[r]emoval of tree sap from exterior of car". On her tenant's behalf, Mrs Ward submitted a grainy photograph of the back of a blue car roof with a small white mark circled on it, that was likely to be oxidised dried tree resin.
Exudation of such resin is usually a protective mechanism of the tree in response to activity by wood boring insects, which are usually beetle or moth larvae. The Court has decided that the damage, or risk of injury must be caused by the tree itself, not by an animal living in or on the tree. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson), at [189], Preston CJ explains; "Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's property."
In Michaels v Lei [2023] NSWLEC 1168; at [46]-[47], I similarly refused a claim of damage caused by mould growing on honey dew excreted by insects sucking sap from a tree, as the Court has no jurisdiction to deal with damage or risk of injury arising from animals in their interaction with a tree.
Even if the Court had such jurisdiction under the Trees Act for damage caused by animals using trees, the small patch of dried tree resin on the car in the photograph would be relatively simple to buff off with a car cleaning product or perhaps Eucalyptus oil. Further, alternative parking options were readily available, clear of the tree's canopy. Consequently, the claim for compensation for car cleaning is refused.
As s 10 of the Trees Act is satisfied by driveway and fence damage, the Court can make orders to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. However, the Court must first consider relevant matters from s 12 of the Trees Act.

Discretionary matters - s 12

The tree is located near the front of the respondents' property close to the common boundary (s 12(a)).
Section 12(b) considers whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 (EP&A Act) or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained. Council permission would ordinarily be required for removal of the tree under Central Coast Development Control Plan 2022, Chapter 3.5 Tree and Vegetation Management, which is enacted by the State Environmental Planning Policy (Biodiversity and Conservation) 2021 and reflects its requirements. The jurisdiction of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 arises from the EP&A Act.
The tree's canopy extended across both parties' front yards and Mrs Ward noted two past instances of pruning to clear branches from her dwelling. Canopy pruning would have negligible to minor impact on further root growth, however, and heavy root pruning may result in increased root growth in the medium and long term. Considering the damage already caused by the tree, the location and considerable size of exposed roots, the tree's vigorous growth rate, potential mature size and close proximity to the applicant's dwelling, I am not satisfied that likely near future damage to Mrs Ward's property can be effectively mitigated by root pruning (s 12(b2)).
While the application failed to acknowledge the tree's environmental contributions, the tree contributed to privacy, landscaping, garden design, and protection from the sun and wind. As it was relatively large and conspicuous, the tree provided intrinsic value to public amenity, and it contributed to the local ecosystem and biodiversity by providing shelter and habitat for fauna. Given these myriad environmental contributions, it is contingent on the Court to consider and prefer all viable alternatives to tree removal, but no alternative options are appropriate in this instance (s 12, subss (b3), (d), and (f)).
Under s 12(h), if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause damage to the applicant's property: 1. considers "anything, other than the tree, that has contributed, or is contributing, to any (such) damage or likelihood of damage" to the applicant's property, "including any act or omission by the applicant and the impact of any trees owned by the applicant, and 2. any steps taken by the applicant or owner of the land on which the tree is situated to prevent or rectify any such damage".
As discussed by his Honour in Robson; at [204]-[210], the 'Age and nature of the structure' is relevant under s 12(h) as a certain amount of wear and tear is expected to arise with any structure over time. Mrs Ward estimated that the concrete driveway was installed in the early 1970's. Though the thickness of the concrete appeared to vary at different crack locations, 75mm was a reasonable average estimate. The concrete's advanced age, absence of steel reinforcement and insufficient thickness to support sustained vehicle traffic, all contributed to apparent deterioration and cracking. Though these factors do not compromise the engagement of s 10(2) of the Trees Act, should orders be contemplated, the Court considers the relative contribution of these factors when determining the extent to which a tree caused alleged damage and the apportionment of compensation for replacement or repair of such damage.

Conclusion

Following the onsite hearing, excavation of concrete allowed the Court to adduce conclusive evidence regarding root size and location and current and likely future damage on which to base sound decisions. Though many large trees grow surprisingly close to dwellings without causing damage, this was not the case here. This Norfolk Island Pine was well established and had reached about 17 m tall, but they are a long-lived species and this specimen had only reached early maturity. The tree's potential mature height, trunk diameter, and root size and spread, could exceed double its current proportions.
I am satisfied that roots of the tree were a cause of Mrs Ward's concrete driveway damage and, in the absence of intervention, that a 130 mm diameter root extending under the concrete slab of the dwelling was likely to cause damage in the near future. Additionally, pressure from the tree's thickening trunk and roots had damaged a section of the common boundary fence and this damage was also likely to worsen. Therefore, s 10(2) of the Trees Act is engaged.
As noted above at [29], I am not satisfied that damage to the driveway and potential dwelling damage can be effectively mitigated by root pruning as the extent of and location of such pruning close to the trunk is likely to significantly compromise both the health and root anchorage of the tree. Consequently, orders shall be made for tree removal at the respondents' expense.
The respondents shall also remove the existing driveway concrete and major roots, at their expense, to provide for driveway replacement and fence repair. The root causing the minor crack to the concrete slab of the dwelling shall be severed at the edge of the slab, but the residual section extending under the slab should be retained in situ to slowly perish, rather than risking slab damage by attempting to extract it. The respondents may undertake these labour-intensive tasks themselves or may employ contractors with appropriate insurance to do so. Should the roots by removed by stump grinding, the respondents, at their expense, shall also ensure the stump grinding debris is removed.
Compensation for replacement of the concrete driveway shall be based on the characteristics of the existing driveway 'like for like' as it would be unreasonable for the respondents to be liable for providing the applicant with a new reinforced concrete driveway which exceeded the standard, materials, and quality of the original. The cost of the replacement driveway shall also be apportioned between the parties in consideration of driveway deterioration resulting from wear and tear since the early 1970's, which was likely exacerbated by insufficiently thick concrete and the absence of steel reinforcement.
Each party shall procure and exchange one quotation from a licenced builder or licenced concreter with appropriate insurance, for surface preparation and replacement of a 75 mm thick non-reinforced concrete driveway. While the applicant may choose to install a higher quality surface, such as thicker concrete with steel reinforcement, the respondents' financial liability for the driveway replacement shall be limited to 60% of the quantum of the cheapest quote, based on the aforementioned specifications.
The respondents, at their expense, shall employ a fencing contractor with appropriate insurance to replace or repair one sloping and two rectangular common boundary fence panels closest to the front boundary and associated posts as required, so the fence is sturdy, vertical, and aligned along the boundary.
Regarding Mrs Ward's claim for costs of reports and the Court application, Commissioners do not have the powers to award such costs. Applications for such costs require submission of a Notice of Motion to the Court, which is heard by a judge or registrar. Given that the onus is on an applicant to prove their case, and Mrs Ward had failed to provide sufficient proof of roots causing driveway damage until she procured an arborist report from Accurate Tree Assessment, I find no apparent reason why the respondents should be liable for this expense.

Orders

The Court orders that: 1. The respondents, at their expense, shall engage Australian Qualification Framework (AQF) level 3 arborists with all appropriate insurances, to remove the Norfolk Island Pine in their front yard to near ground level. The tree shall be removed within 60 days of the date of these orders. 2. Within 60 days of the date of these orders, the respondents, at their expense, or workers with appropriate insurance contracted by the respondents', shall remove the applicant's existing concrete driveway and clear sufficient roots to provide for driveway replacement. 3. Within 45 days of the date of these orders, each party shall procure and exchange one itemised quotation from a licenced builder or licenced concreter with appropriate insurances, for surface preparation and installation of a 75 mm thick, non-reinforced concrete driveway in the existing driveway's location. 4. The applicant shall employ and pay a licenced builder or licenced concreter with appropriate insurances to replace the driveway within 90 days of the date of these orders. 5. Within 7 days of the completion of the driveway works, the applicant shall email the respondents a copy of an itemised paid invoice for the driveway works. Within 7 days of receipt of the paid invoice for driveway replacement, the respondents shall pay the applicant 60% of the quantum of the cheapest quote for surface preparation and replacement of a 75 mm thick, non-reinforced concrete driveway, per Order 3, by electronic funds transfer (EFT). 6. The respondents, at their expense, shall employ a fencing contractor with appropriate insurance to replace or repair one sloping and two rectangular common boundary fence panels closest to the front boundary, so the fence is aligned along the boundary, sturdy, and vertical. The fencing works shall be completed within 120 days of the date of these orders. 7. The respondents shall provide the applicant with at least 72 hours emailed notice of the date and approximate start time of each of the tree removal, concrete removal, and fencing works. The applicant shall provide the respondents with at least 72 hours emailed notice of the date and approximate start time of the driveway installation works. Each party shall provide the other party, or their contractors with appropriate insurances, all required access to undertake the various works. 8. The tree works shall comply with Safe Work Australia, Guide to Managing Risks of Tree Trimming and Removal Work, 2016. 9. All works shall be undertaken during normal daytime working hours.

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: 21 January 2025

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Cases Cited (6)