Land and Environment Court New South Wales

• Medium Neutral Citation: Weeks & anor v Mack & ors [2013] NSWLEC 1041
• Hearing dates: 8 February 2013
• Decision date: 08 February 2013
• Jurisdiction: Class 2
• Before: Moore SC; Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Damage to property; one tree or two; location on boundary; on which property is the tree principally situated
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Awad v Hardy No 2 (2010) NSWLEC 1258; Barker v Kyriakidis [2007] NSWLEC 292; Hind v Anderson & Anor (2009) NSWLEC 1148; Robson v Leischke [2008] NSWLEC 152; Smith and Hannaford v Zhang and Zhou (2011) NSWLEC 29; Zangari v Miller No 2 (2010) NSWLEC 1093
• Category: Principal judgment
• Parties: E & G Weeks (Applicants); C. Mack, S Scanlon, V Bloore (as executors of the estate of Dorothy Mack) (Respondents)
• Representation: Applicants: Mr A Fernon (Barrister); Respondents: Ms P Murray (Solicitor); Respondents: Dibbs Barker
• File Number(s): 21029 of 2012

Judgment

1 SENIOR COMMISSIONER: The Trees Disputes Between Neighbours Act 2006 (the Act) provides a statutory regime for dealing with a range of disputes between neighbours concerning trees on one property that impact on the adjoining property. It replaces a complex, expensive and protracted Common Law regime in nuisance that would otherwise have applied to such disputes. The statutory regime is a comparatively simple one but has evolved somewhat since the original enactment of the legislation in 2006 and its coming into effect in early 2007.

2 Relevant to these proceedings, one change to the Act that has evolved over time is that vines which were originally excluded from being encompassed by the definition of tree are now so encompassed as a consequence of the Regulations made under the Act.

3 In this case, the application that was made was made pursuant to s 7 of the Act, by Mr and Ms Weeks, in pt 2 of the Act - a provision that reads:

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.

4 The application, as it was originally made, concerned four elements of vegetation located on the respondents' property. Those elements of vegetation (being referred to in those terms for reasons that will subsequently emerge) comprise:

• a substantial vegetation element of fig, a Port Jackson Fig or Figs at the front of the property;
• a clump of oleanders along the common boundary fence but located undoubtedly on the respondents' property; and
• the stump of a Silky Oak which has a large body of ivy growing on it, ivy which has been substantially pruned prior to these proceedings.

5 During the course of the site inspection undertaken in company with the legal representatives of the parties and two of the respondents' experts, the application for any remedy with respect to the oleander vegetation was abandoned and it is no longer necessary for us to deal with that.

6 As a consequence of earlier interlocutory proceedings on a motion for an adjournment of the proceedings prior to today's hearing by vacating the hearing and setting the matter down on a later date, it was indicated to the parties that the initial phase of these proceedings would confine itself to questions of jurisdiction and depending on the findings about jurisdiction would then proceed to address any further application made on behalf of the applicants for delay in dealing with matters of discretion, remedy and the like. We are, as a consequence, at this time, concerning ourselves with jurisdictional questions only.

7 The jurisdictional questions fall in a different fashion with respect to the fig vegetation and the Silky Oak and ivy vegetation. With respect to the fig or figs, the first question that arises to be addressed is that which arises pursuant to s 4 (3) of the Act - that is, to determine the situation of the tree or trees and as to upon which property it is principally located - the reason for that being that s 7 only permits an application to be made if the tree is situated on adjoining land. In the case of the fig vegetation, questions arise in these proceedings as to whether or not that vegetation comprises a single tree and if so, is it situated principally on the respondents' land or, if it does not comprise a single tree but comprises two trees, that one tree is located virtually entirely as to its trunking on the applicant's land and the other on the respondents' land. For the purposes of the jurisdictional questions that arise pursuant to s 10 (2)(a) of the Act, whether the fig element that is located on the respondents' land (if it be a separate tree) has caused or is causing or is likely in the near future to cause damage to the applicant's property is in dispute.

8 Only if the various jurisdictional gateways are successfully traversed, do the applicants have the right to engage with the respondents on the merit questions going to the matters to be considered pursuant to s 12 of the Act and thus giving rise to the discretions arising under s 9 of the Act as to what orders (if any) the Court might make.

9 The more complex of the two matters of a jurisdictional nature is the question of whether the fig vegetation, a Port Jackson Fig tree or two Port Jackson Fig trees is in fact a single tree or not. The nature of our consideration is one that is where we need to be satisfied, on a bare preponderance of probability, that a particular factual decision should be made or position obtains. That test is discussed by Craig J in Smith and Hannaford v Zhang and Zhou (2011) NSWLEC 29 between paras 29 and 38.

10 For trees on boundaries, we have, as a matter of practise in the Court in the past, required surveys to be undertaken if there is doubt as to where a tree is located. In some instances, there has been a necessity for a surveyor to undertake more than one attempt at a survey to accurately depict the shape of a single-stemmed tree at the point where its trunk enters the ground (see Awad v Hardy No 2 (2010) NSWLEC 1258).

11 These proceedings are more complex than that. This arises as the Ficus vegetation has a multitude of exposed roots, a multitude of lateral elements both of branch and trunk typology and it is evidenced by two separate points of location at the top of a rocky outcrop that shapes, if not entirely replicates, the boundary between the applicants' and respondents' property.

12 There are two arboricultural statements in evidence in these proceedings. The first one (given in unsatisfactory form as has been conveyed to the representatives of the applicants) purports to be a statement of evidence drafted by two people, a creature not known to conventional legal practise. However, the document has been admitted without objection as an arboricultural statement and has been treated by us, for the purposes of these proceedings, as if it were a compliant statement of evidence in accordance with the Expert Witness Practise Code. That document expresses the view that there is a single Port Jackson Fig tree. The proposition that there is a single Port Jackson Fig tree is the primary position adopted by the applicants in these proceedings with respect to the propositions put on their behalf by Mr Fernon of counsel.

13 What we regard as more subsidiary propositions arise in the eventuality that we were not prepared to conclude that there was a single tree represented by the vegetation complex at the top of and trailing over and down the rock outcrop to which I have earlier referred.

14 The arboricultural evidence given on behalf of the applicants vigorously supports the proposition that it is a single tree and it expresses the view that that tree will have originated from a single point located on the respondents' property. The question of how many trunks there might be is not precisely described in that evidentiary document although the summation statement is that it appears that this is one tree only and separate trunks have grown from root shoots. The overall form is described as being one of a multi-trunked nature. No measurement has been endeavoured to be undertaken by or on behalf of the applicants to quantify where the preponderance of the trunking that would be held to exist if this is to be regarded as one tree is located - that being a matter in our view relevant to our determination of the jurisdictional question in s 4 (3) of the Act.

15 The statement of arboricultural evidence given on behalf of the respondents is that there are two trees, that the tree that is growing on the applicants' land is the larger and older (on the basis of a comparison of the size), it being stated in the report of Mr Castor, the respondents' arborist at 4.1.1:

Being significantly larger and more extensive T1A is most likely the older tree. If the tree cluster is to be deemed a single tree then this single tree is most likely to have originated at the location of T1A and spread towards T1R.

16 T1A and T1R are the designations which have been given to the Ficus elements on the applicants' and respondents' properties respectively.

17 During the course of the site inspection this morning we climbed (together with the legal representatives of the parties) to the top of and then down the rocky outcrop atop which the Ficus vegetation is located. We were able to inspect the root and trunk and branch systems of the totality of this vegetation from close proximity.

18 It is obvious from that inspection that there is no aboveground biological connection between the trunking of what is known as T1A and the trunking of what is known as T1R. As a consequence we are unable to accept the proposition from our observation of the physical structure and their comparative sizes that, if the Ficus vegetation is to be regarded as one tree, it has become so as a consequence of a growth from T1R to establish T1A or vice versa.

19 The contrary appearance is that at some stage in the past (at a time given our overall conclusion that it is unnecessary for us to determine), two trees of this species have grown at that point independently.

20 We are then left to consider the question of whether, at the present time (that being the relevant test under s 4 (3) of the Act) this vegetation constitutes a single tree.

21 We have the uncontradicted evidence expressed (save as to Mr Castor's reservations) by the applicants' arborists that it is a single tree. The remaining expert evidence provided on behalf of the applicants' appears to depend on their arborists' reports.

22 Despite Mr Castor's view that the trees at the time of their establishment were separate trees, he has, in his oral evidence given in Court this morning, expressed the view that there is likely to be a physical connection underground by grafting of the root systems of what were two original trees - thus forming, in his view, the probability that there was a physical connection between them. If there be that physical connection, a connection that we are unable to establish but are prepared to accept his evidence on that point for the purposes of these proceedings, at the present time there is a single biological entity that constitutes a Port Jackson Fig tree joined underground by an intermingled and grafted root system.

23 The consequence of that is that we are then obliged to take the next step and consider where, pursuant to s 4(3) of the Act that single tree is principally located.

24 We make two observations first, consistent with the decision of Craig J to which I have earlier referred, we have to have, on the preponderance of probabilities, the view that the tree is principally situated on the respondents' property rather that the applicants'. Although there is no requirement (discussed by the Chief Judge of this Court in Robson v Leischke [2008] NSWLEC 152) imposing a strict burden of proof, there is nonetheless a persuasive obligation on the applicants to establish (consistent with Craig J's decision) where the tree is principally located.

25 The applicants have not provided any evidence that would enable us to draw the conclusion that a single Ficus is located principally on the respondents' land.

26 Second, from our own observation during the course of this morning's site inspection, we are of the view that it is likely, were such an examination undertaken, that the preponderance of the trunks of the single Ficus would be located principally on the applicants' land and there would therefore be no jurisdiction to deal with that single tree.

27 As a consequence, not merely because of the absence of evidence but from the conclusions that we draw ourselves from our own observations and the fact that the far larger vegetative mass of the Ficus is on the applicants' property (there being as Mr Castor described it in his oral evidence, the larger proportion of the biomass being T1A) we are not satisfied that the jurisdictional provision of the tree being principally located on the respondents' property is satisfied.

28 The inevitable consequence of that is that the application with respect to the Ficus must be dismissed.

29 It is therefore not necessary for us to proceed to consider the jurisdictional questions that arise as to causation of damage, the application being entirely outside our jurisdiction as a consequence of that ruling.

30 We would also observe that that does not necessarily foreclose the matter in its entirety for the future. As discussed in Hinde v Anderson & Anor (2009) NSWLEC 1148, changed circumstances can found a further application under the Act. The doctrine of res judicata and questions of estoppel do not arise on such an application if there were to be fresh proceedings commenced. It is to be cautioned, however, that changed circumstances do not involve the discovery of further evidence where that evidence was or ought to have been available at the time of the present proceedings. That is discussed in Zangari v Miller No 2 (2010) NSWLEC 1093 and other cases.

31 As a consequence, any fresh application based on the excavation to discover root directions and the like when potentially available in these proceedings would, subject to some exceptional circumstances being established, appear to preclude some further application being made absent other significant changes in circumstances.

32 We now turn to the question of the Silky Oak stump and the ivy. As we indicated during the course of the hearing, the concern that the Silky Oak stump might harbour termites is not a matter that enlivens the jurisdiction of the Court under the statute (see para 189 of the Chief Judge's decision in Robson v Leschke).

33 The matters that are raised with respect to the Silky Oak stump as separate from the question of the ivy are said to arise with respect to the fence and its state and with respect to what is said to be the interference of the Silky Oak's roots on the garden bed on the adjacent property.

34 During the course of the site inspection, we carefully observed the fence. It is in what could delicately be described as a somewhat advanced state of dilapidation.

35 On the applicants' side of the fence, considerable rotting to the lower portions of the palings seem to have been occasioned by the applicants having piled dirt against the lower portion of the palings.

36 At the point where the Silky Oak intersects the fence, it was conceded by Ms Weeks that the four-paling aperture that is cut in the fence to accommodate the roots of the Silky Oak that extend from the respondents' property onto the applicants' property was in existence at the time that she and her husband purchased their property.

37 That gives rise to two matters first, if we had been inclined to hold that that constituted damage (which we are not because there is no evidence that that root has in fact caused any damage but has merely been accommodated by the design of the fence) the fact that the applicants purchased their property on notice of that defect in the fence means that at the time of their purchase, they adopted the defect rather than complaining about it.

38 Secondly, the survey shows that the entirety of the length (at least of the top of the fence) currently follows the boundary and there has been therefore no pressure by the Silky Oak on the fence to cause deviation of the fence from the boundary.

39 Finally, although there is a bow in the fence some metre and-a-half or so to the south of the Silky Oak trunk, that bow is a bow towards the respondents' property not away from it as would be the case if there were to have been an impact by the Silky Oak. This bow is only at the middle and lower portions of the fence and not at the upper end and appears to reflect the piling of soil on the applicants' side of the fence to the fence palings at that point. There is therefore, in our view, no basis upon which we have jurisdiction with respect to the Silky Oak because although it is located principally on the respondents' property, it neither has caused, is causing or is likely in the near future to cause damage to the applicants' property nor is it any risk of injury to any person.

40 That leaves the ivy. We accept the uncontradicted evidence in the applicants' material that the ivy has damaged their garage guttering in the past because they replaced the guttering as a consequence of it. We accept that the ivy may have required them to repaint the surface of the fence on their side of the fence - we noting that it had been painted iron grey black and that that was as a consequence of the ivy roots. We are therefore satisfied that we have jurisdiction with respect to the ivy as having caused damage to the applicants' property.

41 That engages us, therefore, in the potential consideration of what (if anything) we should order with respect to the ivy as a matter of discretion. This would cause us to consider the impact of the tree dispute principle adopted by the Court in Barker v Kyriakidis [2007] NSWLEC 292 as to whether or not the prevention of damage by the ivy would fall within the normal expected maintenance requirements of a property owner in an urban area having the environmental and aesthetic benefit of those biological structures considered to be trees by the definition contained in the Act and the regulations.

42 Given the extremely limited nature of our conclusion of a positive nature on jurisdiction, we have come to the view that we should ask the legal representative of the respondents (consistent with some correspondence that is contained in the Court file of documents provided on behalf of the respondents) whether the respondents are prepared to give an undertaking to sever, poison and remove the remnant elements of the ivy currently attached to the Silky Oak stump. We indicate that, if such an undertaking is to be given with such removal and poisoning to be undertaken within a reasonable period of time (say, twenty-eight days from today's date) we would accept such an undertaking as a reasonable resolution of the extremely limited matters we have held to be within our jurisdiction. We would accept that undertaking and dismiss the residual element of the application on the basis of that undertaking having been given. Ms Murray?

43 MURRAY: The respondents are going to give that undertaking.

44 SENIOR COMMISSIONER: Within twenty-eight days?

45 MURRAY: Yes.

46 SENIOR COMMISSIONER: In that case, having accepted the undertaking on behalf of the respondents that the ivy will be cut, poisoned and removed within twenty-eight days of today's date, we dismiss the application and the exhibits, other than exhibit A, are returned.

Tim Moore

Senior Commissioner

Judy Fakes

Commissioner of the Court

Decision last updated: 08 March 2013