Land and Environment Court New South Wales

• Medium Neutral Citation: Owners' Corporation SP17514 v Owners' Corporation SP34633 [2013] NSWLEC 1105
• Hearing dates: 19 June 2013
• Decision date: 19 June 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; removal of two trees; rectification of driveway and wire fence

• Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; rectification of property
• Legislation Cited: Dividing Fences Act 1991; Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kryiakides [2007] NSWLEC 292; Freeman v Dillon [2012] NSWLEC 1057; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Owners' Corporation SP17514 (Applicant); Owners' Corporation SP34633 (Respondent)
• Representation: Applicant: Ms D Howie (Agent); Respondent: Mr S Kierdal (Agent); Ms E Edeltrut (Agent)
• File Number(s): 20279 of 2013

Judgment

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

1 COMMISSIONER: The applicant in these proceedings is seeking orders for the removal of four trees and the rectification of parts of the common property it says have been damaged by the trees.

2 The owners of the respondent property are divided in their opinions as to what should or shouldn't happen to the trees.

3 The trees are three large and mature Araucaria heterophylla (Norfolk Island Pines) (trees 1, 2 and 3 - the Pines) and an established but still relatively small Phoenix canariensis (Canary Island Date Palm)(T4 - the Palm) growing along the western boundary of the respondent's property and which abut the dividing fence between the parties' properties.

4 One of the unit owners on the respondent's property stated that the Norfolk Island Pines were large trees when she purchased the property more than 43 years ago.

5 The applicant is seeking rectification, at the respondent's expense, of the following elements of common property:

• a section of low brick wall alleged to have been damaged by a branch that fell from Tree 1;
• removal and replacement of several sections of concrete driveway and the associated dish drain adjoining trees 1 and 3 - said to have been cracked and lifted by the roots of those trees; and
• removal and replacement of the wire mesh portion of the dividing fence, part of which has been displaced by the Canary Island Date Palm.

6 Apart from actual damage to property, the applicant is concerned that the roots of all the Pines may cause future damage to the driveway and the footings of the units.

7 The applicant is also concerned that branches falling from the trees could injure someone or that someone could slip on leaves or trip on the cracked driveway.

8 It was also contended that the raised driveway adjoining T3 sheds rainwater into the garage of one of the units thus creating a nuisance as well as concerns for safety.

9 While it was not raised on site, the applicant also contends that the build up of leaf litter may create a fire hazard.

10 In applications under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), the key jurisdictional test is found in 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. This section must be applied to each of the trees that are the subject of the application.

11 As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 is relevant in that the Court has determined that the 'near future' is a period of 12 months from the date of the hearing. With respect to potential injury, the Court considers the 'foreseeable' future based on the characteristics of the species, its condition at the time of the hearing, any evidence of past failures, and the circumstances in which it is growing.

12 Dealing with each of the elements of the claim and the respective trees.

The brick wall

13 It is clear from the photograph in the claim form and as seen on site, there is a vertical crack through seven courses of bricks. The crack is wider at the bottom. Relevantly, there is no cracking of, or damage to, the top coping course of bricks. Relevantly, because the contention is that a falling branch caused the crack.

14 The respondent disputes this contention. While one respondent's owners said he removed the fallen branch (reportedly a green branch with a diameter of about 100mm at its base), he did not consider that the branch has caused any damage. None of the applicant's owners saw the branch but were informed of it by a tenant on the respondent's property. The inference is that the branch caused the crack.

Findings - brick wall

15 On the evidence before me, there is nothing to support the contention that the crack was caused by a branch from T1. I could see no sign of a branch failure on T1. While the nature of the crack might support the possibility of some influence of tree roots, no evidence was adduced to support this.

16 As there is no clear nexus between any of the trees and the crack in the wall, s 10(2) is not satisfied and no orders can be made for any interference with the trees on this basis.

The wire fence

17 It is common ground that the Palm has displaced two panels of the wire mesh fence. This section of fence cannot easily be rectified unless the Date Palm is removed. Neither of the respondent's owners made any submissions in favour of its retention.

Findings - wire fence

18 After considering the discretionary matters in s 12 of the Act, I find no compelling reasons for the retention of the palm and orders will be made for its removal.

19 With respect to the seeking of an order to replace the wire fence with a colorbond fence, the applicant has not requested the engagement of the Court's powers under s 13A of the Dividing Fences Act 1991. Therefore I am limited to making orders only for the sections of fence damaged by any of the trees.

The driveway and dish drain

20 It is clear from the photographs and the on-site view that there are cracks in the sections of the applicant's driveway beside T1 and T3. These sections are also displaced in a way consistent with the expansion of the trees' woody roots. The dish drain adjoining T1 is cracked in a similar way.

Findings - driveway and dish drain

21 On the evidence before me I am satisfied that T1 and T3 have caused damage to the applicant's property and could continue to do so. Therefore as s 10(2) is satisfied, the Court's jurisdiction to make orders under s 9 is engaged.

22 With respect to T2, it was stated that the adjoining section of the applicant's driveway had been replaced. I saw no evidence of any damage to that section of driveway or anything that would lead me to conclude that any damage is likely to arise in the near future.

23 The minor displacement of the southern section of dish drain near T2 appears to be due to a change in construction method and not obviously associated with root growth.

24 I am not satisfied that the tests in s 10(2) pertaining to damage are met and therefore no orders will be made for any intervention with Tree 2 on this basis.

25 Returning to Trees 1 and 3, before determining what orders should be made, I must consider the discretionary matters under s 12 of the Act.

26 The trees are clearly on the respondent's property and in very close proximity to the applicant's driveway. The trees are large, healthy and prominent in the landscape and they contribute to the amenity of the locality. Gosford Council did not make any submissions regarding the significance of the trees (nor was it obliged to).

27 In order to rectify the driveway, it will be necessary to remove roots close to the tree. As these are structural roots, severing these could predispose the trees to instability or lead to dieback of the canopy, which in turn could increase the risk of injury to occupants of and visitors to both properties.

28 Therefore regrettably, orders will be made for the removal of these two trees.

Potential injury from T2

29 The applicant raises issues of potential injury caused by falling branches, slipping on debris, tripping on driveways, flooding of a garage, and a potential fire risk.

30 In regards to falling branches, while I was shown some old, relatively small diameter dead branches from a Norfolk Island Pine, there is no evidence that injury is likely. The tree is healthy with very little dead wood. There is nothing to suggest that any interference with this tree is warranted at this stage.

31 With respect to slipping, no evidence exists to suggest that this is a problem that cannot be managed by ordinary external property maintenance. Even if I considered s 10(2) to be satisfied (which I do not), as a matter of discretion no orders would be made for any interference with the tree on this basis.

32 The Court has published a Tree Dispute principle in Barker v Kryiakides [2007] NSWLEC 292 which states that:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

33 There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter.

34 The issue of potential tripping will be avoided by the orders requiring the replacement of the damaged sections of driveway. The issue of fire has been discussed in Freeman v Dillon [2012] NSWLEC 1057 at para [86]. In my view, that principle could also be applied to incidental flooding. The Chief Judge in Robson v Leischke [2008] NSWLEC 152 considers the issue of 'nuisance' in detail.

35 No orders will be made on the basis of fire or flooding however the replacement of the slab near T3 should alleviate the problem of runoff into the garage.

Orders

36 Therefore on the basis of the foregoing, the Orders of the Court are:

(1) The application is upheld in part.

(2) By 30 September 2013 the respondent is to remove, to ground level, Trees 1, 3 and 4 being the Norfolk Island Pines at each end of the row and the Canary Island Date Palm.

(3) The work is to be carried out by an AQF level 3 arborist with appropriate insurance and in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) The applicant is to provide all necessary access for the work to be undertaken in a safe and efficient manner on two working days notice.

(5) Within this timeframe, the applicant is to obtain up to three quotes for the removal and replacement of three sections of concrete driveway and associated dish drains, including any necessary removal of roots. The sections are numbers 3, 6 and 7 as numbered from the street frontage and defined by expansion joints. The replacement cost is to be 'like with like'. Any upgrading is to be separately quoted.

(6) Should it wish, the respondent may obtain up to two quotes for the same work.

(7) By 30 September 2013 the parties are to have exchanged quotes and agreed on the cheapest quote.

(8) The applicant is to engage and pay for the nominated contractor. The work is to be completed by 31 December 2013 otherwise order 9 lapses.

(9) The respondent is to reimburse the applicant the cost of the 'like with like' works in order 5 within 21 days of the receipt of a tax invoice for the completed work, or, in the alternative, in a timeframe agreed by the respective insurers should an insurance claim be made. Any additional upgrades or works are to be at the applicant's expense.

(10) Within 21 days of the removal and replacement of the driveway, or at any time prior to this should it be deemed to be practical and possible, the respondent is to reinstate the three panels of wire fence adjoining concrete sections 5, 6 and 7.

__________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 24 June 2013