Land and Environment Court New South Wales

• Medium Neutral Citation: Turner v Garlick [2014] NSWLEC 1159
• Hearing dates: 13 August 2014
• Decision date: 13 August 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is upheld in part. See orders at paragraph 25

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; orders for two trees to be removed; application regarding one tree dismissed.
• Legislation Cited: Dividing Fences Act 1991; Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Black v Johnson (No 2) [2007] NSWLEC 513; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: William and Leanne Turner (Applicants); Colin and Melissa Garlick (Respondents)
• Representation: Roberts Legal (Applicants); Mr B Richards, solicitor (Applicants); Mr C Garlick, litigant in person (Respondents)
• File Number(s): 20294 of 2014

Judgment

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

The application

1 In Fern Bay the landscape is dotted with established trees among dwellings on large residential lots. One such tree ("Tree 1") is a mature fig (Ficus microcarpa) growing within the property of Mr and Mrs Garlick ("the respondents") in the northwest corner near their rear boundary. Mr and Mrs Turner ("the applicants") live at an adjoining property. Their property fronts a different street to the Garlick property so the section of common boundary is part of the Turners' side boundary but the Garlick's entire rear boundary. The fig tree is only several metres from the rear of the Turners' dwelling, that part of the dwelling being additions added to the original dwelling in 2008. Two smaller figs ("Tree 2" and "Tree 3") of the same species grow in the southwest corner of the Garlick property further distant from the Turners' dwelling, but close to the Turners' garden shed.

2 The Turners have applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ("the Act") seeking orders for removal of the three trees and repairs to their property, on the basis that the trees have caused damage, are likely to cause further damage and are likely to cause injury. The damage they say the trees have caused is through root growth, and comprises:

(a) displacement of the fence on the common boundary;

(b) movement of the garden shed slab such that a crack is present in the slab and the doors close only with some difficulty; and

(c) lifting and displacement of pavers alongside their dwelling.

3 The Turner's application included alleged damage to their bathroom floor but this part of the claim was not pressed during the hearing.

4 The injury they say is likely results from what they say are trip hazards caused by the lifted pavers and by surface roots in their lawn.

5 The Garlicks dispute most of the claims regarding causation by their trees. They say that while roots might have contributed to paver displacement, water movement within and over the ground is more likely to be the major cause. They say if roots have caused damage elsewhere it is a result of the Turner's own actions, such as their building works falling short of regulatory requirements and irrigation of the lawn encouraging tree root growth. The Garlicks do not want to remove any of the trees, which they say provide shade and cooling to their dwelling and contribute to the amenity and privacy of their property. Despite this, they have offered to remove one of the smaller figs and to prune the other small fig.

6 I must establish firstly if the Court has jurisdiction to make orders. The key tests are at s 10 of the Act. Only once I am satisfied that the Court's jurisdiction is engaged can I make orders, which are not necessarily those sought by the applicants but are orders that I see fit to deal with the situation, as set out at s 9. Before making any orders I must consider a range of discretionary matters at s 12.

Onsite view

7 At the onsite hearing the trees and alleged damage were observed and both parties showed me the features they wanted me to consider.

8 The mature fig tree in the northwest corner of the Garlick property is approximately one metre from the common boundary. It is approx 20 metres tall and spreads broadly over the Garlick's rear garden, the garden of the property to the north, and for a distance of some 8 metres over the Turner property, including above their dwelling. The tree is in good health and has typical structure for the species, with some included bark within forks but nothing that appears significantly hazardous from a ground inspection, which is the extent of the assessment done for the applicants' arborist report. The root buttress is large, extending beneath the fence, and large surface roots grow within the gardens of all three properties beneath the canopy. The tree has been pruned, mainly to the north and west. The tree would appear to provide significant summer afternoon shading to the Garlick's dwelling.

9 The two younger trees are nearing 10 metres tall. They have several stems with included bark within their forks. Tree 2 is only some 30 centimetres from the common boundary, close to the Turners' shed. Tree 3 is almost 2 metres from the boundary.

10 I will now deal in turn with each area of alleged damage and risk of injury, its jurisdictional tests and relevant discretionary matters.

The shed

11 The Turners' garden shed was constructed in 2007, shortly before the additions to the dwelling. It is a lightweight construction atop a concrete slab. There is a crack up to a few millimetres wide extending east-to-west across the slab, beginning on the eastern side immediately adjacent to the base of Tree 2, where it is widest, and dividing as it reaches the western side. The shed doors have been slightly displaced and take some effort to close them.

12 Having viewed the situation, the proximity of the crack to the tree, its alignment along the likely line of root growth away from the tree, and the absence of other possible causes, I am sufficiently satisfied that root growth from Tree 2 has caused cracking of the slab. Considering the proximity of both Tree 2 and Tree 3 to the shed, I also find it likely that both trees may cause further damage to the slab within the next 12 months, which is a suitable period to consider as the near future (see Yang v Scerri [2007] NSWLEC 592). Subsequently, according to s 10(2)(a) of the Act, the Court's jurisdiction is enlivened and orders can be made for Tree 2 and Tree 3.

13 Mr Garlick submits that the shed does not comply with the requirements of relevant building codes. This is a matter to be weighed within the discretion of s 12 and is not a jurisdictional test. Mr Turner says he spoke with a representative of the local council before the shed was constructed and was informed that it did not require a permit.

14 Even if I accept Mr Garlick's submissions, the jurisdiction under the Act does not include enforcement of building codes. While I consider that the shed's location and its standard of construction are relevant issues, and may have contributed to the damage, I would not find here that rebuilding of the shed is required or that the need for such would outweigh the loss of the smaller trees. In these circumstances I am satisfied that removal of Tree 2 and Tree 3 will prevent further damage and that this is an appropriate course of action. Mr Garlick has offered to reduce the height of one of the trees, but that would not resolve the problem of root damage.

15 Further matters to be considered at s 12 include the trees' contribution to amenity, privacy, shading and cooling. The Garlicks made submissions, especially with regard to Tree 1, that they gain significant summer afternoon cooling from the trees. They appreciate the amenity and have a strong sense of attachment to Tree 1 in particular. Considering Tree 2 and Tree 3, I find that the benefits they provide are significantly less than the benefits of Tree 1. In weighing these against the likelihood of damage and the options for its prevention, I find that the removal of these two trees is appropriate.

16 Therefore orders for removal of both Tree 2 and Tree 3 will be made. The trees were present when the shed was built. The large garden would have accommodated a shed elsewhere. In Black v Johnson (No 2) [2007] NSWLEC 513 the Commissioners set out the following "Tree Disputes Principle" at paragraph (15):

The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration.

If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work.

However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of:

the type of tree planted; and

the suitability of the location in which it has been planted.

Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.

17 Therefore, some apportionment to the applicants of the costs of tree removal is appropriate. In this case, and in the absence of submissions regarding this, I will apportion the costs 50/50.

The fence

18 Turning to the fence, I note that it is a steel panel fence of some age, with physical damage elsewhere, away from Tree 1, and with areas of displacement along its length. I accept that it is also displaced near the tree, perhaps more significantly than elsewhere, and that this constitutes damage, engaging the Court's jurisdiction in relation to Tree 1. However, with the discretion allowed by the Act I do not intend to make any orders regarding this part of the application. The damage is minor and does not affect the function of the fence. Despite its age and condition along its length the parties do not seek orders under the Dividing Fences Act 1991. Therefore no orders will be made for the fence. I note that this does not prevent the parties agreeing in future to replacing part or all of the fence.

Paving

19 Paving alongside the dwelling is significantly displaced. Mr Garlick says this may be due to water movement. The applicants say he has provided no evidence of this. However I note that despite their uneven condition and the ease with which they can be removed to inspect beneath them, no evidence of root growth beneath the pavers has been adduced by the applicants or either of their experts. The engineer, Mr Crispin, and the arborist, Ms Bleiker, both refer to the paving being damaged by tree roots. Their photographs show surface roots elsewhere and show the uneven paving. There are no photographs of roots beneath the pavers.

20 During the onsite view I lifted two of the most displaced pavers. They are on a sand base, without mortar. Fine roots were visible in the sand but no large roots that would cause such displacement. This is not to say there are no large roots at a greater depth. However, based on the lack of evidence, and the possibility of other causes, I cannot be satisfied that damage is a result of root growth. Therefore in regard to this element of the application, both the damage and the risk of injury that it poses, the Court's jurisdiction is not engaged and I cannot make any orders.

Stormwater pit

21 The applicants contend that roots from Tree 1 will damage the stormwater pit in their rear garden. Fern Bay does not have stormwater infrastructure so it is generally dealt with onsite. Surface roots extend across their lawn from the base of Tree 1 to the area of the stormwater pit. However no evidence of damage to the pit was provided, nor any evidence that damage is likely within the next 12 months. Again, although this may be possible, I cannot be satisfied that it is likely. To some extent, this highlights the importance of experts undertaking the required investigations when preparing reports, rather than simply relying on assumptions.

Injury

22 Turning to the risk of injury caused by roots in the lawn, I noted that the surface is uneven but is undulating rather than containing any sudden level changes. I therefore find there is no significant trip hazard and therefore no risk of injury caused by the tree.

Conclusions

23 As discussed above, the only area where I can be satisfied that Tree 1 has caused, is causing, or is likely in the near future to cause, damage to the Turners' property is the displacement of a section of the fence along the common boundary, but this is so minor as to not warrant orders by the Court. I am not satisfied that the tree is likely to cause injury to any person. As a consequence, the application regarding Tree 1 is dismissed.

24 Tree 2 and Tree 3 are to be removed, but for reasons given above the cost of this will be apportioned evenly between the parties.

Orders

25 Therefore, the orders of the Court are:

(1) The application is upheld in part.

(2) Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3), with appropriate insurance, to remove both Tree 2 and Tree 3 to no more than 500 mm above ground level and to poison their stumps. The works are to be done in accordance with WorkCover NSW Code of Practice for the Amenity Tree Industry.

(3) On reasonable notice the applicants are to provide any access required for the works in (2) during reasonable hours of the day.

(4) The applicants are to pay the respondents 50% of the cost of the works within 14 days of being presented with a receipted paid invoice for the works, unless they receive no such invoice within 90 days of the date of these orders in which case this order lapses.

____________________________

D Galwey

Acting Commissioner of the Court

**********

Amendments

04 September 2014 - words added to end of para 12 'is enlivened and orders can be made for Tree 2 and Tree 3.'
Amended paragraphs: 12

Decision last updated: 04 September 2014