Land and Environment Court New South Wales

• Medium Neutral Citation: Lees v Primrose [2014] NSWLEC 1122
• Hearing dates: 24 June 2014
• Decision date: 24 June 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is upheld in part (see orders in paragraph [19]).

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; orders for tree pruning; fence repair; root pruning.
• Legislation Cited: Dividing Fences Act 1991; Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Liang & anor v Marsh & anor [2011] NSWLEC 1026; Robson v Leischke [2008] NSWLEC 152; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: APPLICANT; Brendan Lees; RESPONDENT; Jan Primrose
• File Number(s): 20224 of 2014

Judgment

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

The application

1 In a relatively leafy area of Baulkham Hills a mature Black Bean tree (Castanospermum australe) grows in the rear garden of a residential property. Ms Primrose ("the respondent") has owned and lived at the property since 1998. The tree is close to the property's south-eastern boundary, which is the common boundary with the neighbouring property owned by Mr Lees ("the applicant"). The tree's crown extends well over Mr Lees' rear garden. Mr Lees has owned and lived at his property since June 2013.

2 Mr Lees is concerned that the tree has caused damage to the boundary fence, and that it is likely to cause damage to his dwelling, drainage pipes and landscaping. He is also concerned that falling seed pods are likely to cause injury to his children or anybody else in the garden. He has applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 for the tree to be removed, for surface roots to be removed from his garden and, pursuant to the Dividing Fences Act 1991, for the fence along the common boundary to be replaced.

3 Ms Primrose values the tree, especially its contribution to the amenity of her garden and to local environmental values. She sees no reason to interfere with the tree and says there is only minor damage to the fence, not warranting any action.

The framework of the Act

4 Under the framework of the Act, I am to determine (at s 10(2)):

• whether the tree has caused, is causing or is likely in the near future to cause, damage to the applicant's property; or
• whether the tree is likely to cause injury to any person.

5 If one of these jurisdictional tests is satisfied I must then consider a range of matters set out at s 12 of the Act, before making any orders as I see fit, as described at s 9, to remedy, restrain or prevent damage to the applicant's property, or to prevent injury to any person, as a result of the Black Bean.

Onsite view

6 The hearing took place onsite, allowing for a view of the tree and related issues. The tree appears healthy and of sound structure. It is approximately 12 metres tall with a crown spread of some 15 metres. It has a single stem up to about 1 metre, where it forks into several major limbs that support the crown. One of these limbs is close to, but not against, the colourbond boundary fence, which would rub against the tree were it properly aligned, a matter I shall address below. There is one small area of suppressed foliage high in the crown, which the respondent suggests is due to poisoning, although no evidence of this was presented.

7 Large surface roots are visible throughout Mr Lees' garden, some close to the rear wall of his dwelling.

8 The boundary fence is approximately 1.6 metres high, of colourbond material, and is ageing. Its alignment along the boundary is not true, partly due to its age. However, adjacent to the tree the top of the fence is displaced in towards Mr Lees' property. This is also true at its base, although to a lesser extent. Mr Lees contends this is obviously caused by the tree as large roots can be seen against the bottom rail. Ms Primrose contends it may be due to other factors, with minor contribution from the tree. She suggests it appears to have been pulled over at the top, perhaps by a person. During the hearing Ms Primrose stated that the damage had only occurred in the last 12 months, although at another time she also stated that it was present earlier, before Mr Lees had purchased his property.

9 Large roots that appear to be from the Black Bean are close to the rear wall of Mr Lees' dwelling, some 5 metres from the tree. Other trees grew in this area but have been removed by Mr Lees, including two large palms and a privet. The glass roof on this rear section of the dwelling slopes down to the rear garden, directing all rainfall runoff into the ground against the wall. Foliage on long branches of the Black Bean touches the glass. A downpipe on the side of this part of the dwelling is not connected to the storm water, directing rainfall from the roof to fall into the ground against the wall. Mr Lees contends that he has drainage problems, and wishes to install drainage pipes throughout his garden. He says tree roots will prevent these works. He says roots will damage any new drainage against the wall of the dwelling, and are also likely to damage the foundations.

Mr Lees' position

10 Mr Lees says that only removal of the tree can prevent these problems. He says that the tree prevents him using up to 25% of his rear garden due to shading and risk of injury. He says it prevents him growing anything in this part of his garden. He says pruning cannot sufficiently remedy this, as the tree will continue to grow, and that these issues will remain to a certain extent, and increase in future. He says pruning will not prevent root damage to his dwelling. He argues that this species is not appropriate in gardens or near dwellings. He says Ms Primrose should pay for the tree's removal and that it should be replaced with a more appropriate species.

11 Mr Lees wants the fence along the common boundary replaced under s 13A of the Dividing Fences Act 1991, with costs shared equally between the two parties. He says a 1.8 metre colourbond fence is required for privacy and security.

Ms Primrose's position

12 Ms Primrose contends that there is no need for removal of the tree and that its removal would result in a loss of amenity and a further loss of habitat for fauna in an area where many trees have recently been removed. Ms Primrose says that Mr Lees has already pruned overhanging branches to the extent allowed by a recent TPO permit issued by The Hills Shire Council. She says further pruning would unbalance the tree and put it at risk of falling. She says that cutting roots would also leave the tree at risk of falling. She says the damage to the fence is so minor that it does not require repair and that there is no evidence that the tree has caused any other damage. She sees no need to replace any part of the fence. She says there has never been an injury from falling seed pods, nor any part of the tree, in the 16 years she has lived there. (Mr Lees argues that the area of his garden beneath the tree was unusable until he cleaned it up.) Ms Primrose points out that there is no visible damage to the wall near the tree roots, so any future damage is unlikely.

Findings

13 The alignment of the fence is likely to have been directly affected by tree roots. The fence now leans into Mr Lees' property sufficiently to affect his use of that part of his garden. This equates to damage caused by the tree, and the Court's jurisdiction is enlivened. In Liang & anor v Marsh & anor [2011] NSWLEC 1026, Fakes C stated at (33) that "the test requires the damage to be damage caused to the applicant's property whilst owned by the applicant." According to at least one of Ms Primrose's own statements, the damage has occurred during the period that Mr Lees has lived there. The damage is sufficient to warrant some repair. Having observed the proximity of tree roots to the fence's bottom rail, and considering the absence of other likely causes, I accept that the damage is caused principally by tree roots and that, therefore, the repair should be carried out at Ms Primrose's expense. However the remaining boundary fence, although ageing, appears fit for purpose and there is no need for me to make orders for its replacement within this jurisdiction.

14 There is no evidence that roots from the Black Bean have caused damage, or are causing damage, to any other property. Regarding the risk of damage in the near future, since Yang v Scerri [2007] NSWLEC 592 the Court has consistently considered "the near future" to be a period of around 12 months, and I see no reason to vary from that consideration here. Having observed their size and location, I accept that roots are likely to cause damage in the near future to a pathway and remaining stormwater and drainage pipes. (They may contribute to damage to the dwelling, but this appears unlikely.) I accept that it is appropriate to take steps to deal with this. However I note that the conditions of Mr Lees' property, notably the lack of guttering along the rear wall and the disconnected downpipe on the side wall, are likely to have led to increased soil moisture levels next to his dwelling, conditions which would encourage root growth in these areas. Therefore, any remedy of this should be at his expense. Tree roots in the vicinity of the rear wall are sufficiently far from the base of the tree that cutting them here is unlikely to affect the tree's stability. Considering the overall extent of the tree's root system, cutting the small number of roots present here would also be unlikely to adversely affect tree health.

15 Tree roots may interfere with Mr Lees' future plans for his garden, but that is not a matter that can be dealt with under the Act. While the Court can make orders to prevent damage to the applicant's property, it cannot consider potential property that may or may not materialise in future.

16 I note that the branches near the glass roof may, and indeed are likely to, damage that structure during strong winds. Pruning can sufficiently remedy this situation, without adversely affecting the tree.

17 Regarding risk of injury, I find it unlikely that seed pods will cause injury, although it is possible. As the Court's jurisdiction is already enlivened, and some pruning is to be ordered to prevent damage to the dwelling (see the previous paragraph), I find that some further pruning would minimise risk of falling seed pods by reducing the amount of canopy over Mr Lees' garden, but this could be done to an extent that would not subtract from the tree's value nor shorten its lifespan. The extent of pruning carried out in recent years is minimal.

18 Regarding the restriction of use of his land that Mr Lees says the tree causes, this is not damage to property on his land. Preston CJ explained in Robson v Leischke [2008] NSWLEC 152, at (171), that "annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not 'damage to property on the land' within s 7 of the Trees (Disputes Between Neighbours) Act 2006." Nuisances "of the third kind" are, at (169), those "causing unreasonable interference with the use and enjoyment of the neighbour's land". Shade from the canopy may suppress plants that Mr Lees grows in future, but that is not damage caused by the tree. Even if I am wrong in regard to this issue, the tree was present when Mr Lees purchased his property a year ago and he was able to familiarise himself at that time with Council's Tree Preservation Order and what action he may or may not be permitted to undertake. The crown of the Black Bean has not grown significantly since the purchase of his property. Tree roots pointed out by Mr Lees were not much smaller than their present size, if at all, when he purchased his property.

Orders

19 In light of these findings, the orders of the Court are as follows.

(1) The application is upheld in part.

(2) The respondent is to engage a contractor with suitable experience and appropriate insurance to remove the two panels of fencing closest to the tree (those most out of alignment), and replace this section with the same panels if possible, or new panels of a similar nature if necessary, so that these panels are aligned on the boundary, are vertical, and have at least 100mm clearance between the fence structure and any part of the tree, including roots. This may require a reduction in fence height near the tree and a gap at the bottom of the fence.

(3) Upon being given reasonable notice of the works in (2), the applicant is to allow all access necessary for these works to be carried out during reasonable hours of the day.

(4) The works in (2) are to be completed within 90 days of the date of these orders.

(5) The applicant is to engage a suitably qualified and experienced arborist (minimum AQF level 3) with appropriate insurance, to prune the Black Bean to reduce the crown over the applicant's property by 15-20% total live crown mass, including the provision of at least one metre of clearance between the applicant's dwelling and the crown, cutting no limbs large than 200mm diameter, by reducing low limbs and the longest limbs to suitable lateral branches. There is no apparent need to cut branches over the respondent's property.

(6) The applicant's arborist is to cut all roots within one metre of the rear wall of the applicant's dwelling where these roots are situated on the applicant's land. Roots are to be cut cleanly with a saw.

(7) The works in (5) and (6) must be done in accordance with AS4373 Pruning of Amenity Trees and WorkCover NSW Code of Practice for the Amenity Tree Industry.

(8) Upon being given reasonable notice of the works in (5), the respondent is to allow all access necessary for these works to be carried out during reasonable hours of the day.

(9) The works in (5) and (6) are to be completed within 90 days.

____________________________

D Galwey

Acting Commissioner of the Court

**********

Decision last updated: 26 June 2014