Land and Environment Court New South Wales

• Medium Neutral Citation: Yin v D'Hondt & anor [2014] NSWLEC 1040
• Hearing dates: 28 February 2014
• Decision date: 06 March 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part see paragraph [81]

• Catchwords: TREES [NEIGHBOURS] Damage to property; injury; notice given to respondents
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Uniform Civil Procedure Rules 2005
• Cases Cited: Burling v Nolan [2012] NSWLEC 1241,; Ding & anor v Phillips [2008] NSWLEC 1268; Forster & anor v St Vincent De Paul [2012] NSWLEC1227; Goldman & anor v Malane [2012] NSWLEC 1234; Hinde v Anderson & anor [2009] NSWLEC 1148; Holborow v Measures [2012] NSWLEC 1101; Knox v Love (No.3) [2012] NSWLEC 1158; McCallum v Riodan & anor [2011] NSWLEC 1009; Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Wazrin Pty Ltd v Pearson [2010] NSWLEC 1020; Yang v Scerri [2007] NSWLEC 592; Zangari v Miller (No 2) [2010] NSWLEC 1093
• Category: Principal judgment
• Parties: Ms P Yin (Applicant); Mr C and Mrs M D'Hondt (Respondents)
• Representation: Applicant: Ms P Yin (Litigant in person); Respondents: Mr J Westlake (Agent)
• File Number(s): 20939 of 2013

Judgment

1 COMMISSIONER: The applicant in these proceedings purchased her Killarney Heights property in 1999. At that time there was a large established Eucalypt growing at the rear of the respondents' property, close to the common side boundary. The respondents purchased their property in 2007.

2 The applicant contends that she had few if any problems with the tree until 2011 when she noticed more dead branches falling from it. She maintains that this followed the installation of an above ground pool in the respondents' backyard, quite close to the tree. In 2012 she observed a concrete path in her back garden had cracked. In September 2013 after removing some Privet trees from her back garden, she found two large roots of the Eucalypt on her property.

3 The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for a number of orders. These are summarised from the application form as follows:

• Removal of the tree and its roots;

• Reinstatement of the wire boundary fence and its footings;

• Repair of a block wall at the rear of the applicant's property;

• Reappointment of a damaged garden bed and its preparation for planting;

• Levelling and returfing of land affected by the tree and its roots;

• Removal and replacement of a damaged concrete path; and

• Removal of an encroaching planter box.

All work is to be carried out at the respondents' expense. The applicant's estimate for the remediation works is $7999. Mr David Ferrier, the applicant's architect, prepared the estimate and prepared detailed plans of the site and the damage.

4 The applicant contends these orders are necessary because of damage caused by the tree and the potential for injury as a consequence of falling branches or tripping hazards. As I understand the application, she is also concerned about whole tree failure.

5 The tree is described in the application, in early correspondence, and by the applicant's arborist, Mr David Watts, as a Eucalyptus microcorys (Tallowwood). The respondents' arborist, Mr Guy Paroissien, has correctly identified it as a Eucalyptus botryoides (Southern Mahogany or Bangalay).

6 The tree is estimated to be 22m tall. It comprises three codominant leaders which arise from very close to ground level. The tree is healthy with a normal percentage of dead wood.

The Court's jurisdiction

7 In applications under Part 2, the key jurisdictional tests are found in s 10(2) of the Act. This states:

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or

(b) is likely to cause injury to any person.

8 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...".

9 If any of the tests are satisfied, the Court's jurisdiction under s 9 to make any orders it thinks fit is engaged. The making of orders requires consideration of a number of discretionary matters in s 12 of the Act.

Damage and injury

The wire fence & 'footing'

10 The trunk closest to the common boundary has displaced a portion of the wire mesh dividing fence. At the base of the fence is a discontinuous line of masonry blocks which may have once formed a masonry fall. To the limited extent that this may form a footing for the fence, this structure has also been displaced by the base of the tree. While the fence has been displaced, it is fully functional.

11 Apart from the respondents' tree, the remains of other trees that originate on the applicant's property are visible. A thin trunk of a probably self-sown tree (possibly a Camphor Laurel) has intertwined and grown into part of the fence.

12 The stumps of two recently removed, closely spaced Privets are located on the applicant's side of the fence and appear to have contributed to the displacement of the 'footing'. These stumps are within half a metre or so of the Bangalay. The applicant contends that these trees were self-sown. Photographs 30 and 31 in Exhibit B show some displacement of the metal fence and footings as a consequence of these trees.

Rear block wall

13 This wall is located at the western end of the applicant's northern boundary. The wall forms the dividing fence between the applicant's property and the adjoining property to the rear.

14 The applicant claims that the roots from the Bangalay have cracked the wall and caused it to become unstable. There is some cracking of the mortar between a couple of courses of block work.

15 The applicant was unable to show the presence of any roots from that tree in proximity to that portion of wall. The stump of a recently removed Privet is located in the north-western corner of the applicant's property less than 500mm from the wall.

16 A survey plan on p12 of Exhibit B shows the portion of the wall in contention to be principally located on the adjoining property to the north.

Garden edging

17 Roots from the tree have also displaced several sections of sandstone garden edging on the applicant's property. The edging is less than one metre from the fence. Two large roots of about 200mm in diameter are visible on the surface beneath the lifted sections. The roots are clearly from the Bangalay.

18 Photographs in the application claim form and in Mr Watts' report show the roots and the displacement of the edging.

The concrete path

19 The applicant contends that roots from the tree have caused the cracking of about 7metres of a concrete path. The path is several metres from the tree. At the hearing I observed two woody roots from the Bangalay adjacent to two sections of cracked path. The applicant's plan shows the roots as having a diameter of about 70mm; I concur with this.

20 I also observed another woody root of a slightly smaller size from a different species, close to the easternmost Bangalay root. This other root had characteristics consistent with being from a Privet. The closest Privet is the stump of the recently removed tree in the north-western corner of the applicant's property. This root is not shown on the carefully drawn plan contained in the application claim form.

21 Mr David Ferrier the applicant's architect and who drew the plan, was present at the hearing and opined that it was not possible for a root of that size to have come from the Privet.

22 Figures 17 and 18 in Mr Watts' report (in exhibit B) show the position of the easternmost Bangalay root and the other root in relation to the path. The Privet root is closest to the most damaged section of the path. The path in this section is fractured into many pieces.

23 I was able to remove a broken portion of the path and inspect it. I observed the path to be about 50mm thick and sitting on the soil. The age of the path is unknown as it was present when the applicant purchased her property. The dwelling is thought to be mid-late 1960s. The path defines the edge of a former pool that has been filled in.

24 The three woody roots had penetrated the soil beneath the path.

The garden bed

25 The garden bed in contention is the area to the west and north of the curved section of path, between the path, the applicant's garden shed, the northern portion of the boundary between the parties' properties and the western end of the applicant's northern boundary. The applicant contends that this part of the garden is "horticulturally useless" as a consequence of the tree and its roots.

26 A photograph taken in about 2007 (Photo 1 in Exhibit B) shows the area in question to comprise a small perimeter garden bed planted with Agapanthus. This is the bed retained by the sandstone edging referred to above. The Privet trees to the south of the Bangalay are obvious. The remaining area is turfed and terraced in two sections, the upper and smaller portion being retained by a very low sandstone edging, the lower portion extending to the edge of the path.

27 Photograph 21 in the application claim form shows the area prior to it being cleared towards the end of 2013. This undated photograph shows only a small strip of grass adjacent to the path; the remaining area contains agapanthus, a cage-like structure and other structures (possibly a compost bin). The Privet trees are substantially larger than they were in 2007. The area bears little resemblance to the one shown in the 2007 photograph.

28 The applicant contends that when she had the Privets removed in September 2013 and then later, in October, when she removed tree branches and other material from the ground, she found the two large surface roots from the Bangalay. She states she then understood the reason why the path was damaged.

29 At the hearing, I observed the area to contain several clumps of and individual agapanthus. Otherwise the area was bare and showed signs of disturbance. The applicant stated that she had the low sandstone edge removed.

Encroaching planter box

30 This is the timber edge of a garden bed on the respondents' property. As this has nothing to do with the tree, and is on the respondents' property it is beyond the Court's jurisdiction under the Trees Act to consider it.

Injury

31 The applicant contends that falling dead wood could injure anyone on her property. Various photographs show the fallen dead branches. On 20 January 2014 she states that she tripped on a dead branch that had fallen across the path. As a result of the fall she broke her foot. Exhibit B contains evidence of the diagnosis. Photographs 22 and 23 in Exhibit B show the branch across the path.

32 The applicant's position is that two years after the installation of the respondents' pool in 2009, the tree started dropping branches.

33 In October 2013, Mr Ferrier states in a letter to the applicant that he has inspected the tree, finds it to be dangerous, and recommends its removal. Apart from future separation of the trunks, it appears that his main concerns arise from his assumption that "major roots were removed from the tree when the swimming pool was constructed some 5 years ago. The pool is within 2 metres of this massive tree." At the hearing Mr Ferrier reiterated this opinion.

The arborists' reports

34 In January 2014, the applicant obtained a report from Mr David Watts of Plateau Tree Service. Mr Watts notes the good health and vigour of the tree. He observes the three leaders and discusses the background theory relating to the potential failure of this structure. He concludes that as there were no signs of cracking or bulging, the junctions were sound at the time of inspection. Mr Watts notes there was no evidence of large-scale branch failure or shifting of the root plate. He notes a normal amount of dead wood in the tree and several small to medium pieces of dead wood on the ground as would be expected from a typical tree of this species.

35 In regards to the roots, Mr Watts' discussion focuses on the theory of root growth and generalisations about the roles of roots. He makes general statements about the possible consequences of root pruning but does not make any site specific mention of the possible consequences of the installation of the pool. He includes a calculation of the theoretical structural root zone of the tree based on the formula in AS4970 - 2009 Protection of Trees on Development Sites but draws no conclusions as to its relevance. He makes no mention of the respondents' pool.

36 Mr Watts notes that the sandstone retaining wall appears to have been shifted to the east over an extended period. Later in his report Mr Watts makes this statement in regards to all of the affected structures "the impacted structures are not likely to have been constructed with sufficient strength to withstand the forces exerted by the roots of the subject tree as they grow and expend under the structures. This has likely resulted in damage to the structures."

37 Mr Watts concludes:

The subject tree was found to be in good general health with a dense canopy. The structural issue identified at the junction of the co-dominant leaders is an ongoing issue that could potentially result in a failure of the tree in the future. There were no external signs near the defect that would suggest the presence of cracking. However, without the use of internal testing equipment it is difficult to make a full assessment of the junction.

From the observations made of surface root locations and the type of damage present it is considered that the tree is having an impact on the adjacent boundary fence, sandstone retaining wall and concrete pathway. Mitigation measures for these impacts are limited without compromising the health or stability of the tree.

38 Mr Watts makes no specific recommendations.

39 Further to Mr Watts report, the applicant engaged Mr Own Tebbutt also from Plateau Trees to meet with Mr Ferrier on site on 14 February 2014. Mr Tebbutt's brief letter confirms the calculated structural root zone determined by Mr Watts. Mr Tebbutt states (as written):

The structural root zone of a tree is the minimum area required for a tree to remain stable. It is a radial measurement from the center of the base of a tree. An encroachment within this area especially where roots are cut may be seen as critically affecting the trees stability. Structural root zones are calculated using the method set out in the Australian Standard® Protection of trees on development sites [AS4970-2009).

The main structure of the pool (not including the surrounding decking area] sits within the calculated structural root zone of the tree.

No further inspection of the pool or surrounding area was conducted during the visit.

40 Mr Tebbutt makes no recommendations.

41 Contrary to Tree Direction 14, neither Mr Watts or Mr Tebbutt indicated that they had read and agreed to be bound by the Expert Witness code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005.

42 The respondents engaged Mr Guy Paroissien of Landscape Matrix to assess the tree and respond to the applicant's contentions. His report complies with Direction 14. Mr Paroissien's inspection was limited to the respondents' property. In his opinion, the tree is of good health and vigour with about 5% dead wood throughout the canopy and of high landscape significance.

43 Of greatest concern to Mr Paroissien is the poor attachment of the three stems and evidence of a lineal crack in the north-eastern leader. He states that "the junction is a weak point in the tree's structure with an increased risk of failure but it is not considered to be at risk of failure in the short term (12 months)."

44 With respect to the construction of the pool, and its location close to the tree, Mr Paroissien states that he was advised by the first respondent that the excavation was minor and no substantial roots were removed and that new roots had displaced the flexible bottom of the pool.

45 In regards to the elements of damage, while he agrees that the tree's roots had caused damage to the sandstone edging and may have contributed to the damage to the pathway and block wall, he considers that the damage alone would not warrant the removal of the tree. In his view the garden bed is useable if shade tolerant species are planted. He also observed what he considered to be patches of vegetation treated by herbicide. The risk of injury by falling dead wood could be managed by appropriate pruning.

Submissions

46 The applicant submits that from 1999 to 2007 she had no issue with falling branches although there was some pushing of the fence. She contends that the respondents should have been fully aware of the damage to the fence when they built their garden bed in 2011 after the pool was installed. She maintains that she was unaware of the damage until she removed the Privets in late 2013, which is when she notified the respondents. The applicant contends that the replacement of the fence is not possible if the tree remains.

47 In regards to the block wall at the rear of her property she cites Knox v Love (No.3) [2012] NSWLEC 1158 in that she could undertake further investigation to prove that the Bangalay has caused the damage.

48 To support her position, the applicant cites a number of cases in which the Court ordered the removal of the tree and awarded compensation or rectification at the respondent's expense. The cases she relies on are Burling v Nolan [2012] NSWLEC 1241, Forster & anor v St Vincent De Paul [2012] NSWLEC1227, Goldman & anor v Malane [2012] NSWLEC 1234, and Holborow v Measures [2012] NSWLEC 1101.

49 The applicant submits that the timeframe for removal should be 60 days so that she can resume use of that section of the garden.

50 Mr Westlake for the respondents, proposed alternative orders. These are:

1) The respondents will remove the tree and its stump at their expense within 150 days of the date of the hearing.

2) The respondents will repair the mesh fence and posts to restore the alignment of the fence to the common boundary at their expense.

3) The applicant is to grant access for the works in 1) and 2).

4) The claims for compensation are dismissed.

51 The basis for these alternative orders are Mr Paroissien's assessment of the tree as being likely to fail, although not immediately. The respondents are concerned that the failure of any of the stems could cause serious injury to anyone in the vicinity and that removal is the responsible and appropriate response. Mr Westlake contends that the guidance decision in Yang v Scerri [2007] NSWLEC 592 which determines the 'near future' to be 12 months should not apply in the circumstances in that the tree in that particular case did not have any obvious weakness in the structure that may predispose it to failure, unlike the Bangalay.

52 As the respondents accept the growth of the tree has contributed to the displacement of the fence, they are content to rectify it at their expense.

53 In regards to what if any compensation should be paid, Mr Westlake relies on Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at [224] to [229] in that the loss should lie where it falls, namely with the applicant. Further, given the limited period of time between notification of the damage and the making of the application to the Court, and the absence of any evidence of damage since that date, the applicant should not be entitled to any compensation (see Ding & anor v Phillips [2008] NSWLEC 1268 at [20]).

54 In regards to the applicant's submissions about the pool, Mr Westlake referred to photographs taken during the excavation, which show the limited extent of it and the absence of any large roots. He maintains that the pool is a lawfully approved and compliant structure that is irrelevant to the application now before the Court.

55 Mr Westlake submits that there is doubt as to the ownership of the block wall as well as doubt as to whether the tree has damaged it. With respect to the garden bed, he relies on Mr Paroissien's assessment but also cites Robson at [166] in regards to damage to the surface of land and the applicability of the Trees Act.

Findings

56 Having considered the evidence, viewed the site, and heard from the parties, I make the following findings.

57 I am satisfied to the extent required by s 10(2) that the tree has caused damage to the applicant's property, in particular the garden edging, and cause injury to any person as a consequence of both falling dead wood and the failure of the trunks. Therefore the Court's powers to make orders under s 9 are engaged.

Tree removal

58 I agree with Mr Paroissien that the tree is healthy, is of high landscape value and contributes to the amenity of the respondents and the public. It is also likely to contribute to the local ecosystem as a food source for local fauna. However, the risk of injury posed by the weak attachment of the three trunks outweighs these reasons for its retention.

59 The guidance decision in Yang and the time span of the 'near future' refers to damage. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree, any history of previous failures and the circumstances of the site apparent at the time of the hearing. In this case, in an affidavit included in Exhibit 1, Mr Paroissien answered additonal questions put to him by the first respondent and stated that the attachment of the stems is a problem that cannot be managed without severe reduction pruning, which in turn would produce other structural problems.

60 With the arboricultural expertise I bring to the Court, I agree that the tree should be removed at the respondents' expense. As the time frame is not urgent, and the cost of the work will be significant, I agree with the proposed 150-day timeframe.

61 In regards to the dead wood, there is some dead wood remaining in the tree but I agree this is within the normal range. Given that the tree will be removed by the end of July, I do not propose to make orders for any removal of dead wood in that period. The risk of injury as a consequence of falling dead wood in this time frame is low. Although the applicant contends she tripped on a dead branch, the photographs included in Exhibit B show the branch to be clearly visible on the path and capable of being avoided.

62 Although the applicant's position focuses on the installation of the pool as a contributory factor, there is no evidence that any major roots were severed. The applicant's arborists' reports rely on a calculated and theoretical structural root zone. Closer reading of AS4970-2009 would reveal the limitations of this approach. Neither arborist made any tree or site specific recommendations for the management of the tree and little weight can be placed on them.

63 While the applicant relies on the caselaw cited in paragraph [48] of this judgment, the circumstances of each matter were unique. It is not unusual for the Court to order tree removal at the respondent's expense, however I note in Forster, the applicants were ordered to contribute 20% of the cost of the removal. In Goldman and Holborow, the applicants were ordered to share the cost of the remediation works.

Fence

64 As the fence will have to be removed in order to undertake the removal of the tree and the stump, I agree that the respondents should be responsible for its rectification after the work is completed. The rectification of the fence is to include reinstatement of the 'footing' at the base of the fence.

Garden edging

65 In regards to the sandstone edging, it is clear that the roots of the Bangalay have displaced it. However, while I agree with Mr Westlake and with the Commissioners' findings in Ding at [20] that the damage has been occurring for a long time and the applicant failed to draw the respondents' attention to it in a timely manner, it will enable the efficient grinding of the stump if the edging is lifted and the roots within 500mm of the tree are ground out. This is to be at the respondent's expense.

66 For clarity, the finding is Ding is:

20 In any event, in even if we are wrong with this respect to the path lifting, the applicant did not draw what the attention of the neighbour to this matter until the end of 2007 and it is clearly obvious, from the state of the path lifting, that this has been taking place for some considerable time. Consistent with the matters about notice and state of knowledge that ought to be or actually was held by the respondent in such matters, as discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152 (at para 207 and referring back to paras 49 - 51), we would not be minded, as a matter of discretion, to hold the respondent liable for past damage to the path. There is no evidence that there has been any damage (let alone any significant damage) to the path since the matter was first drawn to her attention, at the earliest, at the end of 2007. For that further reason, we are also not prepared to make any order with respect to the path.

67 In the light of this finding, and consistent with other decisions of the Court in relation to failure of an applicant to provide a respondent with adequate opportunity to take action, the reinstatement of the edging and any additional root removal is to be at the applicant's expense (see further discussion in 'concrete path' below).

Concrete block wall

68 I am not satisfied on the evidence before me that the section of concrete block wall is on the applicant's property; indeed, the survey seems to show the wall is on the adjoining property to the north.

69 Section 7 of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the applicant's land. The Court has no jurisdiction over damage to property on any land other than the applicant's (see Wazrin Pty Ltd v Pearson [2010] NSWLEC 1020).

70 However, if I am wrong in this finding, the applicant provided no evidence to prove the nexus between the Bangalay and the damage. While she cites Knox, as an opportunity to make further discoveries, the Commissioners in that matter ordered the removal of the tree at the respondent's expense but ordered the applicant to remove the roots from the sewer (found as a consequence of the additional discovery) at his cost.

71 As discussed in discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court ordinarily considers to be 'changed circumstances' and fresh evidence.

72 As stated above, the nearest tree to the damaged section of block wall was a Privet on the applicant's property.

73 No orders will be made for any rectification of the concrete block wall at the respondents' expense.

Concrete path

74 Although the applicant states that she observed cracks in the path in 2012, she did not make any connection between the cracks and the Bangalay roots until mid October 2013. She makes no mention of the path in her letter to the respondents dated 27 September 2013.

75 While I accept that the Bangalay roots are a cause of the damage, the path is only 50mm thick and probably decades old. Apart from the Bangalay roots, a Privet root has also grown beneath the path. While Mr Ferrier considers it unlikely that root has come from the applicant's own tree, little weight can be given to his opinion as he is not an arborist.

76 Again, relying on the findings in Ding, as a matter of discretion no orders will be made for any rectification of the path at the respondents' expense.

The garden bed

77 The issue of damage to "property on the land", as raised in s 7 of the Act, is discussed by Preston CJ in Robson at [166]. In part, the Chief Justice found:

Hence, damage caused by a tree's roots to buildings, fences, paving or other structures, or to fruit trees, crops, ornamental gardens or other vegetation growing on a neighbour's land, may be covered by the Trees [Act] but damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees [Act]..

78 Although I agree that the roots have caused consequential damage to the sandstone edging, the presence of roots and the unevenness of the soil beyond that edging have not caused damage to the garden bed. In part, the unevenness is probably a consequence of the removal of the low stone edging, the exposure of the large roots, and activities associated with clearing the area.

79 Although the applicant relies on the state of that portion of the garden in 2007, the photographs described in paragraph [27] of this judgment clearly show that the area in question to have changed considerably since 2007, not as a consequence of the Bangalay but as a result of the growth of the applicant's privets and the use to which that section was put.

80 No orders will be made for any reinstatement of the garden bed at the respondents' expense.

Orders

81 Therefore, the Orders of the Court are:

1) The application is upheld in part.

2) The respondents are to engage and pay for an AQF level 3 arborist with appropriate insurance cover, to remove the Eucalyptus botryoides (Bangalay) at the rear of the respondents' property. The stump is to be ground to a minimum depth of 300mm and to a radius of 500mm from the edge of the trunk.

3) The work in (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

4) To facilitate the work in (2) the respondents or their contractors are to dismantle the relevant sections of wire fence and 'footings' and remove the relevant sections of sandstone edging from the applicant's property.

5) Once the tree and the stump are removed, the respondents or their contractors are to reinstate the wire dividing fence and 'footings' to restore the alignment of the boundary between the parties' properties.

6) The applicant is to provide all reasonable access on reasonable notice for the purpose of quoting the works in (2), (4) and (5) and for the safe and efficient carrying out of the works in (2) and (5). This includes, but is not limited to, the removal of branches and other material through her property to the street and access and operation of any necessary equipment.

7) The works in (2), (4) and (5) are to be completed by 5.00pm 31 July 2014.

_____________________

Judy Fakes

Commissioner of the Court

Decision last updated: 06 March 2014