Land and Environment Court New South Wales

• Medium Neutral Citation: Price v Dougherty [2013] NSWLEC 1089
• Hearing dates: 22 May 2013
• Decision date: 22 May 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; remainder of tree to be removed; rectification of fence and driveway

• Catchwords: TREES [NEIGHBOURS] Damage to property, injury to persons; compensation - elements of claim beyond jurisdiction
• Legislation Cited: Dividing Fences Act 1991; 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: Mr J Price (Applicant); Mr P and Ms C Dougherty (Respondents)
• Representation: Applicant: Mr J Price (Litigant in Person); Respondents: Ms E Roberts (Solicitor); Respondents: Curwoods Lawyers
• File Number(s): 20093 of 2013

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: Mr Price, the applicant in these proceedings has lived on his property in Broken Hill for the last 20 years or thereabouts. He contends that for about the last six to ten years, a large Eucalypt growing on the adjoining property has caused damage to his property. He is also concerned that the tree poses a risk of injury to anyone in his house or anybody using the driveway.

2 Mr Price has made an application under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the removal of the tree and compensation for damage and injury he contends have been caused by the tree.

3 Part of the compensation claim includes a claim for loss of property value of $100,000 as well as a claim for $30,000 for stress related to issues arising from the tree.

4 The respondents' solicitor, Ms Roberts, stated that Mr Price was advised at the directions hearing that loss of property value could not be considered. With respect to the claim for stress-related damages, this is not something that Commissioners have the delegation to consider. In any event, while supplementary directions for an order to prevent injury were given at the directions hearing, the applicant did not produce any expert opinion to support this element of his claim.

5 In applications under Part 2, the key jurisdictional test is satisfaction of s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. The guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing.

6 The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...".

7 In the period up to the on-site hearing, the tree has been substantially removed. What remains is a stump approximately 14m tall with a diameter at breast height in excess of 1 metre. There are some small epicormic shoots sprouting from the top of the remaining trunk. The respondents informed me that the remainder of the tree would be removed to ground level in the coming weeks.

8 It is clear from a photograph attached to the application that about 45% of the tree overhung Mr Price's property. As far as can be determined from the photograph, the tree appeared to be healthy with a natural form. The remaining trunk appears to be free of structural defects and the remaining attachments of first order branches appear normal with no defects.

9 The tree is located in the respondents' front garden close to the dividing fence between the parties' properties. The applicant's driveway is to the east of the fence (and the tree).

10 Mr Price contends that branches fell from the tree on several occasions. The respondents agree that in about 2005, a branch fell from the tree and caused damage to the applicant's vehicle that was parked in his driveway and to the roof of Mr Price's dwelling. The damage caused by this branch was settled through the parties' insurance companies in 2007.

11 As all branches have been removed from the tree there is now no immediate risk of damage or injury that could arise from the tree. However, unless the remaining trunk is removed within the next 12 months, weakly attached epicormic shoots could fail and result in possible damage or injury. Therefore to ensure that this does not arise, orders will be made to formalise the respondents' commitment to remove the remaining trunk.

12 In regards to the applicant's claim for compensation for damage, this comprises four elements: $8000 damage to a vehicle; $9,180 (+GST) for the removal and replacement of the driveway; $1660 (+GST) for the removal and replacement of a retaining wall; and $3,610 (+GST) for the removal and replacement of 20m of dividing fence. Each of these elements is dealt with in turn; the last three elements are related to damage said to be caused by the roots of the tree.

Vehicle damage

13 The $8000 claim appears to be costs related to the regular removal of 'sap' from vehicles parked in the applicant's driveway and under the respondents' tree. Despite the directions giving the parties time to produce further evidence to substantiate their positions, Mr Price did not avail himself of this opportunity. The principal reason for these directions is to enable the parties, should they wish, to provide extra material relevant to their positions prior to the hearing so that it can be considered by all involved in a timely and procedurally fair manner.

14 In this regard, the applicant could not substantiate the claim and s 10(2) could not be satisfied.

The retaining wall

15 This is a three-course, low, single brick wall extending about 8m from the front of the applicant's property along the eastern side of the driveway. The tree in contention is located near the western side of the driveway.

16 The retaining wall leans to the west, that is, towards the tree and there is some cracking. The wall retains a garden bed in which are growing several small trees; there is a pond close to part of the wall. The wall pre-existed Mr Price's purchase of his property and is therefore more than 20 years old. There is no evidence of its construction.

17 Mr Price contends that the damage has been caused by the respondents' tree and has a quote of $1660 (+GST) for its repair. The respondents do not accept that the tree has caused the damage given the age of the wall and its position in the garden.

Findings - retaining wall

18 On the evidence before me, I cannot be satisfied to the level required by s 10(2) that the tree has caused the damage to the wall. The applicant was unable to demonstrate the nexus between the tree and the displacement of and damage to the wall.

19 Even if the tree had been shown to be a cause of the damage, thus engaging the Court's jurisdiction, as a matter of discretion after consideration of s 12(h)(i), no orders would be made for any compensation. Given the nature of the lean and the adjacent garden bed it appears that the displacement is most likely a function of the age and nature of the wall and gradual pressure from the trees and soil within the garden bed. Therefore, this element of the application is dismissed.

The dividing fence

20 Mr Price has a quote of $3610 (+GST) for the removal and replacement of 20m of the metal dividing fence that separates the parties' properties. The section of fence runs from the street frontage to Mr Price's garage.

21 The fence comprises sections of vertically aligned corrugated iron with a small degree of overlap. The fence also pre-dates Mr Price's ownership and is in poor condition. The section closest to the base of the tree is displaced in a vertical direction and the rail is displaced and dislodged.

22 Mr Price has installed a couple of steel posts on his property to help secure the fence. He has also erected a secondary timber fence on his property to screen part of the metal fence, the whole of which he considers an eyesore.

23 The applicant's position remains that the respondents should pay for the full cost of replacing the 20 m section of dividing fence. The respondents' position is that they would consider repair or replacement of between 1-3 m of the fence that immediately adjoins the tree.

Findings - dividing fence

24 Neither party tendered any independent arboricultural evidence. Given the proximity of the displaced fence to the base of the tree, and relying on the arboricultural expertise I bring to the Court, I am satisfied that the tree has contributed to the condition of the fence. As the Court's jurisdiction to make orders under s 9 is engaged, I must consider any relevant matters in s 12 of the Act.

25 As with the retaining wall, the relevant clause is s 12(h)(i) - things other than the tree that may have contributed to the damage. In this case the age and material nature of the fence is relevant. Overall the fence panels, rails and posts are in poor condition.

26 The applicant has not requested the Court's consideration of an order under s 13A of the Dividing Fences Act 1991 concerning any portion of the fence that has not been damaged by the tree. This is presumably because the applicant's position is that the tree has damaged the entirety of the 20m section.

27 As stated above, my view is that only the section immediately adjoining the base of the tree has been damaged by the tree and, as a consequence, orders will be made for the respondents to repair this section only.

The driveway

28 The driveway comprises concrete wheel strips made up of individual concrete blocks with brick paving between and beside the strips. There is a distinct mound in the western section closest to the base of the tree. The eastern wheel strip appears to be at the original level although some of the concrete slabs are cracked. Mr Price accepts that while he caused the cracking, he contends it arose because he levelled the area and removed roots from beneath those slabs.

29 The applicant has a quote of $9180 (+GST) to remove the existing driveway and replace it with a new concrete driveway. The area quoted is 51m2 - the area between the street frontage and the applicant's garage.

30 The respondents dispute the claim and will only consider a contribution to about 6m2 - the area closest to the tree.

31 During the hearing the applicant revised his position and now seeks replacement of an area of about 28m2 - from the street frontage to the pathway leading to the house.

Findings - driveway

32 With the expertise I bring to the Court, I am satisfied that the mounding is most likely due to displacement caused by the growth of the primary roots of the respondents' tree. As s 10(2) is satisfied, the Court's jurisdiction to make orders is engaged.

33 The applicant produced no evidence to support his claim for the removal and replacement of 28m2. However, orders for rectification will be limited to the lifting and relaying of 4 pieces/ sections of the western concrete strips adjacent to the tree. These are sections 3,4,5, and 6 numbered from the street frontage and shown on the attached photograph. The adjoining bricks are to be lifted and reset. This work is to be paid for by the respondents.

Orders

34 After considering the evidence before me, the Orders of the Court are:

(1) The application is upheld in part.

(2) Within 60 days of the date of these orders, the remainder of the tree is to be removed to ground level at the respondents' expense.

(3) Within 90 days of the date of these orders, the respondents are to rectify the section of fence between the existing metal posts on the applicant's property (see Photograph A in Annexure A) so that the top of the fence is level with the adjoining sections of fence. This work is to include the relocation or repair of the top rail.

(4) Within 90 days of the date of these orders, the respondents are to engage and pay for a contractor to lift and reset the section of driveway described in paragraph [33] of this judgment and shown in Photograph B in Annexure A. The contractor is to remove any roots to a depth sufficient to enable the compaction of the soil and the relaying of the slabs and bricks to a level consistent with the concrete strip on the eastern side of the driveway.

(5) The applicant is to provide all reasonable access for the purpose of quoting and the carrying out of the work on two working days notice.

J Fakes

Commissioner of the Court

Annexure A

Decision last updated: 29 May 2013