Land and Environment Court New South Wales

• Medium Neutral Citation: Machin v Moratelli [2014] NSWLEC 1049
• Hearing dates: 24 February 2014
• Decision date: 19 March 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

See paragraph [58] of this judgment

• Catchwords: TREES [NEIGHBOURS] Damage to property, potential injury
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292; Kellock v Callinan; Le Poidevin v Callinan [2013] NSWLEC 1006; Moroney v John [2008] NSWLEC 32; Theuma & anor v Di Bella & anor [2013] NSWLEC 1156
• Category: Principal judgment
• Parties: Mr J Machin (Applicant); Mr S Moratelli (Respondent)
• Representation: Applicant: Mr C Barnes (Solicitor); Respondent: Ms B Hay (Solicitor); Applicant: T.H. Walker Solicitors; Respondent: Bronwyn Hay Solicitor & Attorney
• File Number(s): 20948 of 2013

Judgment

1 COMMISSIONER: The applicant is seeking orders for the removal of a mature Harpephyllum caffrum (Kaffir Plum) growing in the north-western corner of the respondent's property. He is also seeking compensation for and or rectification of damage he says the tree has caused to his property. Apart from the alleged damage to his property, the applicant is also concerned that someone may be injured should a branch fall from the tree.

2 The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

3 The respondent values the tree and does not want to remove it.

Relevant background

4 The applicant's dwelling was built in about 1942. The applicant purchased the property in 1985. He states in his affidavit that at the time of purchase he was aware of damage to certain elements of the house and to the sewer pipes. He contends that the roots of the Kaffir Plum had caused this damage. At the time of purchase, he also observed that a portion of the roof tiles and the guttering were "swamped with dense leaves".

5 In 1986/87, the damaged sections of the dwelling were rebuilt, the sewer and storm water pipes replaced with PVC, guttering and eaves were replaced, as were damaged ceilings.

6 Because of the size and proximity of the tree and the shade it produced, the applicant installed two skylights.

7 According to the respondent's affidavit, the applicant discussed the tree and his desire to remove it in late 1985. She refused permission for removal but did not object to the pruning of overhanging branches. In 1986 Manly Council granted conditional approval for the removal of three branches. No pruning has been undertaken since then.

8 Approximately 15 years ago, the applicant installed a new brick path to replace the original path he submits was damaged by the tree's roots.

9 The respondent states in her affidavit that the last time she spoke to the applicant was in 2006 in regards to the timber dividing fence. They agreed that the fence should be repaired with the parties sharing the costs. The affidavit makes no mention of the tree in regards to the condition of the fence.

10 In 2012 the applicant's solicitors wrote to the respondent outlining the damage the tree was alleged to have caused the applicant's property with a request that the respondent sign an application form required by Manly Council for removal of the tree. The applicant was prepared to pay for the cost of the removal.

11 After receiving the solicitor's letter, the respondent engaged the services of a consulting arborist, Ms Louise Bennett. Ms Bennett inspected the tree on 24 July 2012 and considered the issues raised by the applicant. Ms Bennett found the tree to be healthy, with no obvious structural defects, and minor tip dieback. She found no lifting of pavement along the eastern side of the applicant's dwelling and saw no cracking of the walls of the dwelling. Based on Ms Bennett's report, the respondent did not pursue the matter.

12 As the applicant had no response to the letter, the application was made to the Court. The application includes an arborist's report prepared by Ms Margot Blues, and an engineer's report from Jack Hodgson Consultants Pty Limited.

13 In preparation for the hearing, the respondent engaged Ms Bennett to prepare a supplementary report. In response to the applicant's engineer's report, the respondent engaged the services of Mr R Springett, an engineer from Craig & Rhodes.

Jurisdiction

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

15 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...".

16 If any of the tests in s 10(2) are met, the Court's powers under s 9, to make any orders it thinks fit to remedy, rectify or prevent damage to an applicant's property, or to prevent injury to any person, are engaged. The making of orders requires consideration of a number of discretionary matters in s 12.

The damage/ injury

17 The applicant contends that the tree has caused the following damage to his property:

• Damage to the sewer and stormwater systems;
• Lifting of paving on the eastern side of his dwelling;
• Damage to guttering and rotting of eaves due to build up of leaves and other debris leading to blockages;
• Damage to and staining of ceilings as a consequence of overflow issues because of the blockages caused by debris;
• Displacement of the boundary fence between the parties' properties; and
• Cracking of parts of the eastern wall of his dwelling.

18 The applicant is also concerned that as part of the tree overhangs his property, branches may fall and cause additional damage and that roots may cause damage to the footings of his house. In regards to injury, he is also concerned about the risks to any occupants of the house should a large branch fail. He is also concerned about tripping hazards arising from lifting paving.

The fence

19 The fence in question is a portion of the timber paling dividing fence closest to the tree. According to the respondent, the fence is more than 29 years old. It was last repaired in 2006. Behind the base of the fence, on the respondent's side, is what is described as a "sandstone retaining wall'. It comprises a single layer of vertically placed pieces of sandstone.

20 The applicant's arborist Ms Margot Blues inspected the tree and the site on 8 May 2013. Her report includes a photograph captioned '"Blowout " of side fence'. The report appears to suggest that the expansion of the trunk has caused this damage. Mr Hodgson states that the tree has pushed over the fence and retaining wall. Ms Blues and Mr Hodgson did not attend the hearing.

21 Both Ms Bennett and Mr Springett attended the hearing and gave oral evidence. Ms Bennett accepts that while the tree may have contributed to the damage to the fence, the fence could be repaired to include the tree and that, in her opinion, the damage is insufficient to warrant the removal of the tree.

22 Mr Springett considers that the fence has been displaced by a force acting at the level of the top rail but does not proffer a cause. He also notes the dislodgement of a piece of sandstone from a low sandstone wall at the base of the tree and the fence. In his opinion the wall in question is not a retaining wall in the engineering sense and the displacement of the stone is due to the washing away of soil as a consequence of the difference in soil level between the respondent's back garden and the applicant's side garden. Mr Springett considers that the movement of the stone and the fence cannot be attributed to root heave.

23 Mr Barnes, solicitor for the applicant, relies on the opinions of the applicant's arborist and engineer in that the growth of the tree is responsible for the damage to the fence and that it should be replaced at the respondent's expense.

24 Ms Hay, the respondent's solicitor, notes the age of the fence and relies on the opinions of the respondent's experts that while some of the displacement may be attributed to the trunk, the collapse of one element of the sandstone wall is not because of the tree's roots.

Findings - fence

25 I am satisfied to the extent required by s 10(2) that the growth of the trunk has contributed to the displacement of the fence, however I agree with Mr Springett that the failure element of sandstone "retaining wall" is likely to be attributed to its construction, age, the change in slope, and water movement. The rock in question appears to serve little purpose and will need to be removed from the base of the tree in order to enable to repair or replacement of the displaced section of fence.

26 In considering what orders should be made in regards to the section of fence, apart from the impact of the tree, the fence is old and showing normal signs of wear and tear. Orders will be made for both parties to obtain quotes for the replacement of the displaced section of fence from the northern corner of the common boundary (close to the tree) to the nearest steel support post as illustrated in Photo 8 in the Blues' report. The installation of the fence is to allow for a separation of 100mm between any part of the trunk and the fence. I note that the boundary fence on the property to the north that adjoins those of the parties has been installed to accommodate the tree.

27 The respondent is to contribute 60% of the cost of the cheapest quote, the applicant is to pay the remainder.

The paving

28 The paving in contention is located between the eastern wall of the applicant's dwelling and a garden bed adjacent to the common boundary. The paving comprises individual brick pavers laid in a basket weave pattern with a brick border at the garden edge. It is about 2m wide. A small section of the edge and adjoining paving has been lifted in the vicinity of a large woody root that is almost certainly from the Kaffir Plum. The excavated area shows the root to be about 130mm in diameter.

29 The applicant is concerned that the bricks pose a trip hazard and that other roots seen elsewhere along the edge of the path may cause future damage to the path and potentially the dwelling. He obtained a quote of $1630 plus GST for the removal and replacement of 18m2 of paving.

30 The Blues' report contains background theory on root growth but makes no specific mention of the consequences of removing that particular root. However, the report recommends removal of the tree based on the effect on it of removing overhanging branches from the applicant's property and Ms Blues' statement that "The published literature cited on the mature scale of these trees can reach has been exceeded by some 30%". Elsewhere she states that the species is not suited to a small and limited area. No relevant literature is cited in her report.

31 Ms Bennett's second report states that she saw no displacement of the paving adjacent to the root however at the hearing she agreed that it was displaced. In her opinion, pruning this root should not cause any structural problems with the tree as she observed that the majority of the supporting roots are located within the respondent's property. Ms Bennett also opined that further investigations could be undertaken along the edge of the paving and that it may be possible, pending the outcome of those inspections, to install a root barrier. Ms Bennett did not see any reason to remove the tree at this stage.

32 Mr Springett noted the very minor lifting of the edge bricks and the presence of sandstone beneath the paving. In his opinion there is likely to have been some differential settling and long-term compaction of whatever base the pavers were laid. This could also contribute to some displacement.

Eastern wall

33 In regards to the eastern wall of the dwelling, Mr Hodgson notes that the applicant's dwelling is founded on sandstone blocks with double brickwork cavity walls above. He observed cracking in two parts of the wall - around the access door to the under floor area of the house and secondly, adjacent to a bathroom window some 2m to the south of the access door.

34 In Mr Hodgson's opinion, the first crack is due to the corrosion of the steel arch bar above the door and presumably, not the tree. In regards to the second area, he states:

In our opinion given the proximity of the tree roots and that the foundations would be near the rock strata with subsurface flows being able to flow alongside the footing creating a moist area for tree roots to find. The tree roots could most likely be the cause of the cracking in this area. Further investigation would be required into the location of the roots to ascertain this. Also if the tree roots have not already affected the footing it is most highly likely that they will in the future and this needs to be addressed by removing or stopping the tree roots.

35 The Hodgson report notes that some of the cracks near the window are "Damage Category 2 (<5mm wide) - Cracks noticeable but easily filled. Doors and windows stick slightly" in Table C1 - Australian Residential Footing Standard. Photographs in the report show the cracks.

36 Mr Springett reviewed Mr Hodgson's report and inspected the wall. While he agrees with Mr Hodgson in regards to the crack near the access door, he considers there are other possible mechanisms that may have contributed to or caused the cracks near the window. In Mr Springett's opinion, the direction and location of the cracks are symptomatic of either the dropping of the central portion of the dwelling or the lifting of the very front (northern) section. He also notes that if the tree's roots had caused the damage he would have expected more significant damage elsewhere in the paving and further towards the centre of the dwelling. He also notes the presence of a large tree in the applicant's property a few metres from the northern corner of the dwelling. He defers to the arborist for mitigation methods.

Findings - paving and wall

37 I am satisfied that the exposed root is from the Kaffir Plum and that it has caused the lifting of the small section of paving. As the root will expand over time, I am satisfied that the damage will continue although the extent of damage at the moment is minor. In my experience, contrary to Ms Blues' comments, the tree is not unusually large for this species, and in any event, size is not necessarily a relevant consideration.

38 Mr Barnes cites Theuma & anor v Di Bella & anor [2013] NSWLEC 1156 and Kellock v Callinan; Le Poidevin v Callinan [2013] NSWLEC 1006 as examples of Court orders for the removal of trees. In Thuema he submits the Court ordered the removal of the tree because it was practical and prudent to do so. In both cases the Court found that in the circumstances, root pruning would compromise the stability of the trees and therefore the only reasonable option was removal.

39 While it is hypothetically possible that the tree may have contributed to the cracks in the wall near the bathroom window, I am not persuaded by Mr Hodgson's report or by Mr Barnes' submissions that s 10(2) is satisfied in this regard. No excavations were carried out and the damage is essentially cosmetic.

40 I agree with Ms Bennett that severing the root is unlikely to cause any stress, mechanical or otherwise, on the tree. Given the absence of evidence of any other damage to other parts of the paving, I do not propose to make any orders for any further investigations or the installation of a root barrier. The current path has been in place for 15 years with no appreciable impact from the tree in that time. It is in good order and fully functional. The circumstances of this matter are notably different from those in the cases cited by Mr Barnes.

41 Cleanly severing the exposed root will be sufficient. Any secondary roots that may arise from the severed end can be easily cut with a sharp spade. In order to enable this, a section of up to 150mm is to be removed east of the paving. That is, the root must be cleanly cut, with a sharp implement, no further than 150mm from the existing edge of the paving.

42 The extent of lifting is so minor that no more than 0.5m2 area of paving needs to be rectified. The area 500mm to the north, south and west of the lifted edge pavers is to be removed and relayed. If necessary the root, or the top portion of it can be removed to facilitate the resetting of the pavers. This work is to be carried out at the respondent's expense.

Roof and ceiling

43 The applicant contends that leaves from overhanging branches have accumulated on his roof and in his gutter leading to ingress of water around two skylights with consequential staining of the ceiling. He states that the guttering has been replaced twice in the time he has owned his property and that he routinely cleans his roof but with advancing age this is becoming more difficult and potentially dangerous.

44 Ms Blues states that given the extent of the overhanging branches, pruning them away from the applicant's property would be detrimental to the long-term health of the tree. She notes that the portion of the canopy over the applicant's dwelling appears healthier than the portion over the respondent's property. In her opinion the most appropriate action to restore the applicant's amenity would be to remove the tree.

45 At the hearing I observed the degree of overhang and the appearance of the foliage. The portion over the respondent's property was thinner and appeared browsed. The respondent advised that possums were active in the area.

46 I observed a moderate layer of leaves from the tree on the applicant's roof. The applicant stated that he had deliberately left the leaves there for some months in the lead up to the hearing. The stained ceilings and nearby skylights were inspected. One skylight is directly beneath the tree's canopy; the tree does not directly overhang the other on the southern side. An inspection of the roof cavity showed some leaves on the ceiling. It was also obvious that the tiled roof was old, daylight was visible, and there was very little sarking. Mr Springett inspected the flashing around the skylights and found it to be inadequate. The skylights were installed in 1986/87.

47 Mr Barnes submits that the circumstances in this matter are unusual and exceptional compared to those described in the frequently cited Tree Dispute Principle published in Barker v Kyriakides [2007] NSWLEC 292. He considers that the extent of overhang is excessive and that despite routine clearing, the litter continues to be a problem.

48 Ms Bell contends that the debris has not been cleared for many months and that routine maintenance at the applicant's expense is reasonable. Removing the tree is unnecessary but the respondent would support the applicant's application to Manly Council for a crown reduction of 10-15% at the applicant's expense.

Findings - roof and ceiling

49 Again I am satisfied to the extent required by s 10(2) that leaves from the tree are a cause of the staining of the applicant's ceilings. In Robson v Leischke [2008] NSWLEC 152 at [179], Preston CJ finds it is sufficient to engage the Court's jurisdiction if the tree is "a" cause of damage to an applicant's property.

50 Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Tree Dispute Principle in Barker states that:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

51 In regards to what, if any orders, should be made, I am not satisfied on the evidence or on Mr Barnes' submissions that, as a matter of discretion, I should not defer from the principle in Barker. I also note the observations referred to in paragraph [46] of this judgement. The build up of debris over several months does not appear to be excessive. Notwithstanding the applicant's mature years (as with Barker) I am unconvinced the circumstances are exceptional. Therefore no orders will be made for any intervention with the tree.

Falling branches

52 The applicant is concerned that large branches may fall onto his dwelling and cause damage and injury. He notes a branch has fallen from the tree and rests on the garage roof of the adjoining property to the northeast. He also relies on Ms Blues' report in which she notes the presence of decay in two branch stubs.

53 At the hearing Ms Bennett noted the branch on the roof of the garage but relies on her reports. In her opinion, while failure is hypothetically possible, she saw no defects likely to cause the damage the applicant is concerned about.

Findings - branches

54 I agree with Ms Bennett, there is no evidence to suggest branch failure onto the applicant's property. There is some degradation of the wood within the branch stubs. The branch on the garage roof is not large and the cause of failure is not obvious. It appears to have been there for some time. There is no evidence that the 'decay' in the branch stubs is likely to predispose the branches to failure.

55 Therefore, no orders will be made for any intervention with the tree on this basis.

Compensation

56 The application included a claim for compensation including a claim of $10,000 as a contribution towards the money spent in rectifying the damage attributed to the tree when works were undertaken in 1986/87.

57 While this claim was not pressed, in Moroney v John [2008] NSWLEC 32 at [32] and [33] the Court held that the Limitation Act 1969 [s 14(1)(d)] applies. This imposes a general six-year time limit.

Conclusions and orders

58 After considering the evidence, the circumstances of the matter and the submissions, the Orders of the Court are:

(1) The application is upheld in part.

(2) By 30 April 2014 each party is to obtain up to 2 quotes each for the replacement of the section of timber dividing fence in accordance with paragraph [26] of this judgment. Within this time frame, the quotes are to be exchanged and the parties or their solicitors are to agree on the contractor. If no agreement can be reached, the cheapest quote is to be accepted.

(3) The applicant is to engage and pay for the nominated contractor. The works in (2) are to be completed by 30 May 2014.

(4) Each party is to provide reasonable access, at reasonable times, on reasonable notice for the purpose of quoting and carrying out the works in (2).

(5) Within 14 days of the receipt of a tax invoice for the completed works in (2) the respondent is to reimburse the applicant 60% of the cost of the agreed sum.

(6) The respondent is to engage and pay for an appropriate, licensed contractor to undertake the root pruning and paving work described in paragraphs [41] and [42] of this judgment.

(7) The applicant is to provide all necessary access for the purpose of quoting and the efficient carrying out of the works in (6) on reasonable notice.

(8) The works in (6) are to be completed by 30 May 2014.

(9) Exhibits B, 1, 2, 3, 4 and 5 are returned.

_____________________

Judy Fakes

Commissioner of the Court

Decision last updated: 19 March 2014