Land and Environment Court New South Wales

• Medium Neutral Citation: Keegan v Lay [2012] NSWLEC 1330
• Hearing dates: 28 November 2012
• Decision date: 30 November 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed.

• Catchwords: TREES [NEIGHBOURS]; damage to property; insufficient evidence of earlier damage; driveway; fence; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mrs Debra Keegan (Applicant); Mr Colin Lay (Respondent)
• Representation: Mr Paul Howarth (agent for the applicant); Ms Joanne Shastri (daughter of, and agent for, the respondent)
• File Number(s): 20820 of 2012

Judgment

1 COMMISSIONER: Mrs Keegan has lived at her property in Gymea Bay for 26 years. Since 2005, or possibly earlier, she has had concerns that a tree on her neighbour's land has been causing damage to the boundary fence and to her driveway. The boundary fence was replaced in 2009.

2 The application to the Land and Environment Court of NSW is made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 . Mrs Keegan is seeking the following orders:

(1) Removal of the tree to be undertaken by the respondent;

(2) The respondent to pay for the cost of repair works she says are required to her driveway;

(3) The respondent to compensate her for half the cost of replacing the boundary fence in 2009; and

(4) The respondent to pay the cost of reports from an arborist and a structural engineer.

3 With regard to the final order sought by Mrs Keegan, Commissioners of the Court do not have the power to order costs, so that part of the application would require a Notice of Motion to be heard by a Judge.

4 Mr Lay, the owner of the neighbouring property and the respondent in this matter, does not wish to remove his tree. Through his daughter, Ms Shastri, he contends that his tree has not necessarily caused any damage but, if it were found that the tree's roots have caused damage, he would prefer that the roots be pruned or a root barrier installed. He does not believe that the cracks in Mrs Keegan's driveway are due to his tree, nor does he accept that his tree caused damage to the original boundary fence such that it required replacement.

5 Under the framework of the Act, the Court must be satisfied, at s 10(2)(a), that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property. If this jurisdictional test is met, the Court is not obliged to make the orders sought by the applicant, but can make orders as it sees fit according to s 9 of the Act, after considering a range of matters set out in s 12.

The situation

6 Mr Lay has owned his property since 1953. The Queensland Brush Box (Lophostemon confertus) was planted in 1970 or thereabouts. It is 2-3 metres from the common boundary with Mrs Keegan's property. It is approximately 14 metres tall and has a stem diameter of 70-80 cm above its root buttress.

7 The older section of Mrs Keegan's driveway is approximately 30 years old. An additional concrete slab was laid about four years ago to widen the existing driveway. There are cracks present in both the older and newer sections of the driveway.

8 The original boundary fence, of a similar age, was a low brick wall - a photo shows it to be five brick courses with a capping course of bricks on their edges. According to the respondent, Mrs Keegan attached colourbond fencing material atop this brick wall. The boundary fence collapsed in 2009 and was replaced by a new brick wall, now 12 brick courses high (the section near the tree) with a capping course on top. This wall shows no signs of damage and Mrs Keegan does not say it is damaged.

9 Mrs Keegan says she first noticed damage in 2005, although according to Ms Shastri the respondent was first informed of damage in a letter from Mrs Keegan in 1998.

Does the Court have jurisdiction?

10 Mrs Keegan makes her application on the basis that:

• the tree caused damage to the original boundary fence;
• the tree has caused and is causing damage to the driveway; and
• the tree is likely to cause damage to her dwelling as well as further damage to her driveway.

The original boundary fence

11 Firstly, considering the original boundary fence that collapsed, Mrs Keegan relies upon a one-page engineering report from Mr Glenn Matthews of Northrop Structural and Civil Engineers dated 4 July 2006; and upon an arboricultural report by Chris Broers of Advanced Arbor Service dated 10 March 2006. Her application, at page 4, and the arboricultural report, at attachment A, both include an identical photograph showing a crack in the boundary fence. This is the only photographic evidence of cracking to the original brick wall that formed the lower part of the boundary fence until November 2009.

12 In the arboricultural report, Mr Broers states "there is also a separation apparent in the small boundary brick fence which runs parallel to the tree. There are several smaller trees located nearby, however I would not expect these trees to be contributing significantly to the nuisance of the cracked driveway or the boundary fence." Mr Broers did not undertake any root investigation and, consequently, no roots were observed. It is only in the recommendations of the report that Mr Broers states: "The damage to the... boundary brick fence is most likely caused by the tree roots from the Lophostemon confertus. A soil sample analysis and a structural engineers [sic] report could verify this is an appropriate measure to mitigate for damages." This conclusion is made despite the lack of investigation and the absence of any further evidence. The photograph in the report shows one very small crack in the wall. I am not convinced by this report that the tree caused damage to the brick wall.

13 The engineering report of 4 July 2006 comprises a single page. Mr Matthews described the damage to the wall as "small vertical cracks, and distortion in two locations indicating differential displacement of the founding ground." He notes that the "cracking/differential movement within the boundary brick wall are within close proximity of the tree." He concludes "the roots of the tree have caused all of the damaged [sic] mentioned above." Due to the lack of investigation and supporting evidence to support this conclusion, the report does not convince me that roots from this tree caused the damage.

14 Ms Shastri argues that the original brick wall was not properly constructed as it lacked sufficient piers. She says it was not designed to bear the additional loads resulting from the colourbond fencing material attached to it and wind loads on that material.

15 It is now three years since the fence was replaced and there is very little evidence supporting Mrs Keegan's claim that the tree caused damage to it. As I am not satisfied that roots from the Brush Box caused damage to the original boundary fence, this element of the application does not meet the jurisdictional test at s 10(2)(a).

The driveway

16 Turning to the driveway, there are cracks in both its older and newer sections. Two cracks approximately 5 mm wide run across the old section of driveway, from west to east in the area nearest the tree. A further crack runs north to south along the centre of one concrete slab. There is one narrow crack running west to east in the newer section of the driveway, which is further from the tree.

17 Again, there is a lack of material in both 2006 reports demonstrating roots of the Brush Box caused this cracking. A further report from Northrop is not dated and does not name its author, but says a further inspection was carried out on 10 July 2012. This report concludes that tree roots have caused damage to the driveway. Only external observations were carried out. No excavation has been carried out and no roots have been identified.

18 Ms Shastri has recently excavated a shallow trench on her father's land along the common boundary near the tree. She says she has also done this previously, in 1998 and 2005, when concerns about the tree were raised. Each time, she says, no roots were found.

19 The proximity and orientation of cracks in the driveway suggest that tree roots may be a cause of damage. If I accept the findings of the engineering report, and the situation meets the jurisdictional test at s 10(2)(a) of the Act, I must consider other matters in s 12. The Court has the discretion to make orders as it sees fit.

20 To my mind, the damage to the driveway is not significant. It is not interfering with use of the driveway. It does not make the driveway hazardous. The older part of the driveway is approximately 30 years of age. Some deterioration is to be expected. Mrs Keegan raised the issue of aesthetics, preferring Northrop's estimated costs for replacing the driveway in its entirety, rather than replacing the damaged sections only, on the basis that there would otherwise be a "non-desirable aesthetic mismatch." However I note that such a variance already exists as a result of the new section of driveway she has added, which is of a different material and appearance to the older part.

21 Considering the minor extent of damage to the driveway, I would not make orders for its repair or replacement even if I accept that roots have caused this damage.

Future damage to house foundations and driveway

22 The Northrop report raises the issue of potential future damage to foundations of the dwelling:

"While no definite damage to the house structure has been noted, our experience has been that large tree roots in close proximity to footings can cause large amount [sic] of damage if left unchecked."

23 In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Craig J established that there must be a causal nexus between the tree and the damage claimed by the applicant. It is not enough that there is simply a possibility that the tree will cause damage. The court must be satisfied that the tree is likely to cause damage in the near future, which the Court generally considers as the period within the next 12 months (see Yang v Scerri [2007] NSWLEC 592). There is nothing in the Northrop report that shows damage is likely in the near future.

24 Photographs of the driveway from 2006 show that the cracks have not become significantly larger since then. Damage does not appear to have worsened in the last six years. There is no evidence that the extent of damage is likely to increase in the next 12 months. There is also no evidence that the boundary fence is likely to be damaged within the next 12 months. The respondent questioned the structural integrity of the boundary fence and whether it complies with relevant standards. If damage does arise these are matters that may be considered in any future application.

25 As I am not satisfied that the tree is likely to cause damage to Mrs Keegan's property in the near future, no orders will be made on that basis.

Conclusions

26 The jurisdictional test at s 10(2) of the Act requires the Court to be satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property. On the evidence presented I am not satisfied that Mr Lay's Brush Box caused damage to the original boundary fence; nor am I satisfied that the tree is likely to cause damage to Mrs Keegan's property in the near future. This leaves the damage to the driveway as the only issue that may enliven the Court's jurisdiction.

27 I consider that investigations undertaken by both the arborist and the engineer engaged by Mrs Keegan were inadequate. They both reach the conclusion that the tree has caused cracks in the driveway. Observations during the onsite view suggest that roots from the tree may have caused the damage, and I accept that the Court's jurisdiction is enlivened. However, the damage is minor - it does not interfere with use of the driveway, nor does it create any hazard. Its aesthetic impact is not significant. Using the discretion allowed by the Act, I would not make any orders for the repair of the driveway.

28 As a result of the above, the application is dismissed.

Orders

29 The orders of the Court are:

(1) The application is dismissed.

D Galwey

Acting Commissioner of the Court

Decision last updated: 30 November 2012