Land and Environment Court New South Wales

• Medium Neutral Citation: Batten v Williams & anor [2014] NSWLEC 1031
• Hearing dates: 26 February 2014
• Decision date: 26 February 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Damage to property, potential injury
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mr P Batten (Applicant); Mr P and Mrs B Williams (Respondents)
• Representation: Applicant: Mr P Batten (Litigant in person); Respondents: Mr P and Mrs B Williams (Litigants in person)
• File Number(s): 20959 of 2013

Judgment

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

1 COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (The Act) by the owner of a property in Kingfisher Shores against the owners of two trees growing on an adjoining property.

2 The applicant is seeking the removal of the trees at the respondents' expense on the basis that the trees have damaged his property and could continue to do so. He is also concerned about potential injury from falling branches or from the development of trip hazards.

3 The two trees are Tree 1, a mature Eucalyptus tereticornis (Forest Red Gum), and Tree 2, a mature Erythrina x sykesii (Coral Tree). Both trees are growing in the back yard of the respondents' property.

4 Tree 1 is most likely a remnant of the original vegetation and is growing very close to the common side boundary. This tree abuts the dividing fence.

5 Tree 2 is towards the rear of the respondents' property some four metres from the boundary. The upper portion of the tree overhangs the applicant's garage by one to two metres.

6 In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This states that the Court must not make an order unless it is satisfied that any tree the subject of the application 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.

7 As the applicant is concerned in part about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' for damage is a period of 12 months from the date of the hearing.

8 Neither party engaged any experts to provide independent expert evidence. The observations regarding the trees are based on the arboricultural expertise I bring to the Court.

The driveway and 'retaining wall'

9 The applicant contends that the roots of Tree 1 have displaced two sections of stencilled concrete driveway. He is concerned that this will worsen over time and the driveway will crack, necessitating repairs, and creating a trip hazard.

10 The sections of driveway are adjacent to the tree; an expansion joint between the slabs runs perpendicular to the tree. Adjacent to this joint are several unit pavers that have been displaced.

11 The applicant placed a straight edge across the slabs to demonstrate the vertical displacement at the expansion joint.

12 Given the close proximity of the tree to the two slabs, there is more than a hypothetical possibility that a root/ roots from Tree 1 have caused or have contributed to the lifting of the slabs and the pavers. To the extent that such a small displacement may constitute damage, I am satisfied that s 10(2) is met and the Court's jurisdiction to make orders under s 9 of the Act is engaged.

13 In determining what if any orders should be made, relevant matters under s12 must be considered.

14 The tree is very close to the boundary. As a probable remnant, it would have been present when a previous owner of the applicant's property constructed the dwelling and driveway. According to the respondents, the driveway was at least five years old when they moved into their property in 2001. As a remnant it will contribute to the local ecosystem and biodiversity of the area.

15 I observed the driveway to be in excellent condition with no obvious cracks along its length. There were no observable difference in the width of the expansion joint in question and the widths of the other joints. The displacement was minor, there was no trip hazard, and the driveway was fully functional. Given the age of the tree and the age of the driveway, the rate of change appears to be very slow. In my view the damage is 'de minimus', and not requiring of an order of the Court at this stage.

16 In regards to the 'retaining wall', there is a slight change in level between the parties' properties, the respondents' property being slightly lower. At some stage, someone has placed unit pavers along the edge of parts of the driveway, between the fence and the driveway and the driveway and the house.

17 While several pavers are lifted they pose no danger and could easily be reset. As with the driveway, the damage, such as it is, is too minor to warrant an order for the removal of the tree, or indeed any intervention with the tree at this stage.

The dividing fence

18 The applicant maintains that the tree has damaged part of the timber paling dividing fence. While he agrees that the fence needs replacing, the applicant contends that the presence of the tree will make this very difficult.

19 I observed the lower part of the trunk of Tree 1 growing against the lower rail of the adjacent panel of fence. The rail is displaced but not broken.

20 The respondents stated that the fence is in excess of 25 years old. I observed most of the posts to be out of alignment and the entire fence to be in a dilapidated condition.

21 Although the tree may be a cause of the condition of the fence, the main causes are its age and the materials from which it is constructed. I find no reason to make orders for any intervention with the tree. Should a new fence be installed, it can be constructed in a way that incorporates the tree.

Falling branches

22 Tree 1 is a reasonably healthy specimen with crown cover and percentage of dead wood within the normal range for its age and species. I observed no significant dead wood in the part of the canopy overhanging the applicant's property. There was slightly more over the respondents' property but not of a size to warrant an order for pruning. I saw no obvious structural defects. Apart from the falling of small diameter dead wood, there have been no reported failures of any branches large enough to cause damage or injury.

23 While branch failure is a possibility, I saw nothing in the canopy to warrant the making of any orders for pruning or any other intervention.

24 In regards to the Coral Tree, there is uncontested evidence that about three years ago, a large branch from this tree fell onto the applicant's garage. This failure caused minor damage to the roof. This is sufficient to satisfy s 10(2).

25 The tree is a relatively healthy specimen that displays evidence of a number of branch failures, the most recent being a failure onto the respondents' garden shed. The respondents have pruned the tree after each failure.

26 The remaining small portion of canopy that overhangs the applicant's garage is attached to a large section of trunk that does not appear to have any significant structural defects.

27 Despite the past failures, I am not satisfied that the tree currently poses an unacceptable risk to the applicant's property or to any person on either parties' property although I consider the respondents to be on notice for any further deterioration in the condition of this tree.

Conclusions and orders

28 After considering the evidence I find that removal of, or indeed any intervention with, either of the trees is not warranted at this stage. I am satisfied that the respondents are aware of potential issues.

29 As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined an earlier application and there is fresh evidence.

30 Therefore, the Orders of the Court are:

(1) The application is dismissed.

________________________

Judy Fakes

Commissioner of the Court

Decision last updated: 27 February 2014