Land and Environment Court New South Wales

• Medium Neutral Citation: Woods v White & anor [2014] NSWLEC 1012
• Hearing dates: 29 January 2014
• Decision date: 29 January 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Upheld in part, see paragraph [27]

• Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; discretionary matters
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
• Category: Principal judgment
• Parties: Mrs D Woods (Applicant); Mr D & Mrs D White (Respondents)
• Representation: Applicant: Mrs D Woods (Litigant in person); Respondents: Mr D & Mrs D White (Litigants in person)
• File Number(s): 20870 of 2013

Judgment

1 COMMISSIONER: The applicant in these proceedings contends that the roots of a mature Metasequoia glyptostroboides (Dawn Redwood) have caused damage to her property in Turramurra. She has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking rectification of the damage at the respondents' expense.

2 The applicant is claiming compensation of the sum of $14,471 being an amount quoted by Genteel Gardens for the rectification of the applicant's driveway and garage floor. In addition she is asking that the respondents pay the costs associated with the application.

3 In regards to costs, Commissioners do not have the jurisdiction to award costs. A Notice of Motion must be filed and heard by the Registrar or a Judge of the Court.

4 The tree is a mature and healthy specimen located in what is now a small garden bed between the parties' asphalt driveways. It was an established tree when the respondents purchased their property 30 years ago.

5 The alleged damage is the variable lifting and subsidence of the applicant's driveway, displacement and cracking of a concrete slab at the entrance to the garage, and lifting and minor cracking of the concrete slabs forming the garage floor.

6 There is a difference of about 70mm between the driveway and the concrete slab. According to the applicant, this is difficult to negotiate in her small car. She is concerned about potential injury.

7 The respondents contend that the applicant has provided no evidence that the roots arise from the Metasequoia but could come from a Brush Box located on the applicant's property - a matter raised by an arborist engaged by them to provide advice.

8 The respondents propose alternative orders requiring engaging the services of the arborist to prune the roots of the Metasequoia and install a root barrier. They would share the cost of this with the applicant. They consider that the applicant should be responsible for the costs of any rectification of the driveway and garage floor.

9 In applications under Part 2 of 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.

10 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...".

11 While the respondents have relied in part on the arborist's observation that the damage may have been caused by the roots of the applicant's Brush Box, in my view there is more than a theoretical possibility that roots of the Metasequoia are the cause. There is a clear pattern of lifted asphalt radiating from the base of the tree. With the arboricultural expertise I bring to the Court I find this is consistent with displacement caused by the expansion of woody roots. The Metasequoia is much closer to the garage than the Brush Box.

12 The displacement of the driveway and the nature of the crack in the concrete slab at the entrance to the garage are consistent with being caused by a root.

13 Therefore, to the extent required by s 10(2) I am satisfied that the tree has caused damage to the applicant's property and the Court's jurisdiction to make orders under s 9 is engaged.

14 Section 9 of the Act enables the Court to make any orders it thinks fit to remedy, restrain or prevent damage to property or to prevent injury to any person as a consequence of the tree the subject of the application. The Court is under no obligation to make the orders sought by either party.

15 Determining what if any orders should be made requires consideration of a number of discretionary matters in s 12 of the Act. The following matters are relevant.

• There is no dispute that the tree is located on the respondents' property and is close to the applicant's dwelling. The respondents contend that extensions to the applicant's dwelling approved in 1989 brought the garage much closer to the tree (s 12(a)).
• To a greater or lesser extent, the orders sought by the parties require some root pruning (s 12b2). Excessive removal of roots has the potential to comprise the health and or stability of a tree. In my opinion, some root pruning is reasonable but must be limited to the edge of the garage. While the extent of the displacement indicates there is probably a substantial root near the western end of the garage, the apparent lack of any recent disturbance to the remaining root system would indicate that the pruning of that root is unlikely to have any significant impact on the tree. To minimise the damage, the root(s) must be cut cleanly with a sharp saw.
• The tree is good specimen that contributes to the respondents' garden and to the diverse and leafy landscape character of the Ku-ring-gai municipality (s 12(b3)(e)(f)).
• Actions of the parties (s 12(ii)) and other matters (s 12(j)) - see below.

16 The applicant contends that she only noticed the problem with the crack in the entrance to the garage less than a year ago although she had been aware of the displacement of the driveway for much longer. It appears that the applicant rang the first respondent in late August 2013 and wrote to him on 30 October with a copy of the quote from Genteel Gardens and a request that he sign a Request for Tree Works and pay a sum of $7,235.50 within 7 days. As no payment was made in that time, the applicant applied to the Court.

17 The respondents maintain that this was an unreasonably short time frame for them to consider a response and that in effect, the applicant contributed to the problem by extending the property closer to the tree.

Consideration

18 As stated above, I am satisfied that roots from the Metasequoia have caused the damage to the applicant's property. As to whether the step is a driving hazard is debatable. However, some action is required to rectify the damage and to prevent further damage.

19 Given the age of the asphalt driveway and the wear and tear of constant use over the past 20+ years, I do not consider that the level of displacement that may be due to the roots warrants the cost of removing and replacing 25m2 of asphalt as quoted by Genteel Gardens. Should the applicant wish to upgrade the driveway that is something for her to consider.

20 Similarly, while the garage floor slabs are slightly displaced, the cutting of the roots and their subsequent decomposition should enable the resettling of the floor. In my view it would be unreasonable to expect the respondents to pay for the replacement of part of the garage floor.

21 Orders will be made for the removal of the western half of the concrete slab across the entrance to the garage. This will enable access to any roots in this portion of the garage and the replacement of that part of the slab.

22 A trench the length of the garage (limited by the concrete path to the west and the sandstone garden edging to the east) is to be excavated to a depth of 900mm (or less if solid rock is encountered) and a width of 600mm between the concrete slab at the entrance to the garage and the asphalt driveway. Any roots found in this area are to be cleanly cut with a sharp saw to be flush with the northern face of the trench and the eastern edge of the path to the west.

23 A rigid plastic root barrier is to be installed along the northern and western edge of the trench to the depth of the trench and to be level with the finished level of the final topcoat of asphalt or to be fully incorporated into that topcoat. Any joins are to be completely sealed. This is to ensure that any subsequent root growth does not growth beneath, above or between any joins in the barrier.

24 The trench is to be backfilled and compacted. A new section of concrete slab is to be poured to replace the western section. The top of the trench is to be sealed with asphalt to create an even surface between the remaining asphalt driveway and the concrete edge.

25 While I am satisfied that the damage has been caused by the respondents' tree, I agreed with the respondents that the notice they were given and the deadline set by the applicant was unreasonably short and they were denied the opportunity to make their own investigations and seek alternative quotes. Given the extent of the displacement and the size of the crack in the slab at the entrance, I am surprised that this was not noticed earlier. The growth rate of this species is relatively slow, especially for a mature tree.

26 Taking these points into consideration I find that it is reasonable for the respondents to pay for 80% of the works described above with the applicant to pay the balance. Any additional works should be at the applicant's expense.

Orders

27 As a consequence of the foregoing, the Orders of the Court are:

(1) The application is upheld in part.

(2) By the close of business on 28 February 2014 each party is to obtain at least two quotes from an appropriate contractor for the works described in paragraphs [21] to [24] of this judgement. Any additional work required by either party is to be separately itemised.

(3) The applicant is to provide all reasonable access for the purpose of quoting on reasonable notice.

(4) By close of business on 7 March 2014 the parties are to exchange quotes and agree on the appropriate contractor. If no agreement can be reached, the cheapest quote must be selected. Should it be required, any additional work is to be agreed and will be at the expense of the party who requires it.

(5) The applicant is to engage and pay for the nominated contractor.

(6) The works in (2) are to be completed by 2nd May 2014 otherwise order 7 lapses.

(7) Within 21 days of the receipt of a tax invoice for the completed works in (2), the respondents are to reimburse the applicant 80% of the agreed cost.

_____________________

Judy Fakes

Commissioner of the Court

Decision last updated: 30 January 2014