Land and Environment Court New South Wales

• Medium Neutral Citation: Liang & anor v Marsh & anor [2011] NSWLEC 1026
• Hearing dates: 9 February 2011
• Decision date: 28 February 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

1. The application to prune the Lillypilly is upheld in part.

2. The application to remove the Blue Gum is dismissed.

3. The application for compensation is upheld in part.

• Catchwords: TREES [NEIGHBOURS]; damage to property; injury to persons; caveat emptor; damage to property must be during time property owned by the applicant
• Legislation Cited: Trees (Disputes between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
• Category: Principal judgment
• Parties: J Liang (Applicant); H Xiong (Applicant); P Marsh (Respondent); D Gibbins (Respondent)
• Representation: Mr J Liang [litigant in person] (Applicant); Mr P Marsh [litigant in person] (Respondent)
• File Number(s): 20801 of 2010

Judgment

1 This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Denistone against the owners of 2 trees growing on adjoining land.

2 The applicants are seeking the removal of a Eucalyptus saligna (Sydney Blue Gum) on the basis that it has caused damage to a retaining wall, the metal dividing fence and tiles on their roof, and could continue to do so. They are also concerned about risk of injury posed by falling branches, and the failure of the whole tree and or the retaining wall.

3 In relation to the alleged damage caused by the Blue Gum they are also seeking compensation for the repair/ replacement of roof tiles and the repair/ reinstatement of the fence and retaining wall.

4 In addition, the applicants are seeking the pruning of all overhanging branches of an Acmena smithii (Lillypilly) [referred to in the application as a 'Banyan']. The applicants contend that fallen fruit from the tree makes their sloping driveway and pedestrian access slippery, and this has resulted and could result in injury, particularly in winter when it is wet and dark. The applicants are also concerned about branches that have fallen from the tree onto their driveway and the risk of damage or injury these pose.

5 The respondents oppose the removal of the Blue Gum as they contend that the problem with the retaining wall is not caused by the tree but the inadequacy of the nature and construction of the retaining wall itself. They contend that the impact of the tree on the fence is marginal and there has been no additional variation in the fence line for a number of years. The respondents also dispute whether the damage to the tiles is recent and whether the tree in question has caused it.

6 With respect to the Lillypilly, the respondents do not dispute the fact that the tree drops fruit but do dispute the branch drop. The respondents contend that the shedding of fruit is to be expected when anyone resides in an area with many trees. The respondents oppose the applicants' application to prune the overhanging branches as they say it would dramatically change the appearance of the tree.

The site and relevant background

7 The respondents have lived in their dwelling since 1984. In 1998, the dwelling in which the applicants now live was built. This is on a 'battleaxe' block at the rear of another dwelling and vehicular and pedestrian access is via a driveway shared with the front property. The applicants purchased their dwelling about 12 months ago.

8 According to the respondents, and visible on site, the development necessitated excavation for the driveway and building pad. This then required the construction of a retaining wall, which, in the vicinity of the Blue Gum, is about 1m high. The respondents' property is upslope of the applicants' property.

9 Both trees were in existence prior to the construction of the driveway and are within 1 m of the common boundary. Photographs submitted by the respondents show the excavation for the applicants' dwelling and driveway and the size of the trees subject to the application in 1998. It is clear that the Lillypilly was mature and well established at that time. Mr Marsh, the first respondent, stated that the Blue Gum was self-sown and was probably at least three years old when the construction started. The size of the tree in the photographs would suggest that the tree was probably older than 3 years but probably less than 10 years.

The damage

10 The 1998 retaining wall is constructed of treated pine logs [half-round horizontal members supported by round posts]. The retaining wall follows the boundary down-slope roughly from east to west, for the length of the driveway to a point approximate to the front corner of the applicants' dwelling. At this point, the retaining wall extends diagonally away from the fence line to create a trapezoidal garden bed after which the retaining wall continues to follow the boundary to the lower end of the property. On the western side or upper side of the raised garden bed is a roughly triangular garden bed at ground level at the end of the paved driveway. The Blue Gum is slightly to the west of the western corner post of the raised garden bed.

11 The applicant contends that the timber post of the retaining wall at the western end of the trapezoidal garden bed (effectively a corner post) has been displaced off vertical by pressure exerted by the tree. A photograph in Exhibit B shows the nails separated from the horizontal members. Mr Liang, the first applicant, contends that during the 12 months he has lived there, the gap is wider than when he moved in.

12 Apart from the displaced corner post, the retaining wall appears to be in reasonable order and alignment although the timber is showing normal signs of aging and weathering.

13 According to Mr Marsh, the present metal dividing fence was installed when the retaining wall went in as part of the development of the applicants' land. There is some deviation in the vicinity of the Lillypilly however, the deviation in the vicinity of the Blue Gum is the 'damage' identified in the application.

14 Two panels of the metal dividing fence are noticeably out of alignment with the majority of the fence. The fence was installed with one of the metal posts located near the centre of the base of the Blue Gum. This post is displaced slightly upwards and substantially outwards resulting in the displacement of the fence panels to the east and west. The fence is still functional however its appearance is less than desirable.

15 The application contains an estimate of $1800 for the repair of the fence and wall [and an estimate of $350 for the repair of damaged tiles]. It is noted that the 'quotes' are not a photocopy of an actual numbered quote sheet showing the name, address and ABN of the service provider. Rather the applicants have summarised the information obtained from two companies.

16 The applicants' additional material contains a claim that fallen branches from the tree have broken tiles on the roof. The material includes photographs of cracked tiles. At the hearing, the roof was inspected. Mr Liang was asked to show the Court the tiles that had been broken in the 12 months that he had owned the property. He pointed out the damaged tiles but was unable to say when they had been broken. To support his claim he showed the Court several dead branches as well as 2 recently failed green branches, one of which was on the roof and which was said to have failed in recent very strong winds.

17 The additional material also states that the Blue Gum may cause damage to the sewer. The sewer inspection point is located in the raised trapezoidal garden bed. Mr Liang stated that no damage has occurred to date.

Risk of injury

18 The applicants contend that both trees could cause injury to anyone using the driveway.

19 With respect to the Lillypilly, apart from the slipping hazard posed by fallen fruit, the applicants are concerned with branches falling from the tree. A photograph included in the application shows a dead branch on the driveway, allegedly from the Lillypilly. Mr Marsh initially challenged this evidence as he had not been notified when it fell and the branch looked quite large in the photograph. The branch was inspected at the time of hearing. While not as large as it appeared in the photograph it was definitely from the Lillypilly. The Lillypilly is in relatively poor condition with considerable dead wood. There is major dead wood on the respondents' side of the fence however dead branches overhang the driveway used by the applicants.

20 As previously stated, the applicants' concern with the fruit drop is that the fleshy fruits create a slipping hazard. The Lillypilly is located to the west or upslope of a moderately steep section of brick paved driveway. The applicants' concern is that this is the only pedestrian access to their dwelling.

21 The risk of injury said to be posed by the Blue Gum is the risk of falling branches, both dead and alive, as well as the previously mentioned concern about whole tree failure should the retaining wall fail.

22 Mr Liang showed the Court several dead branches of about 25mm in diameter at their base and about 2-3 m long that had fallen from the tree. He also pointed out 2 small live branches. One of these had a tear consistent with storm damage, the base of the other had a chewed appearance consistent with cockatoo damage. Sulphur-crested cockatoos were seen in a nearby mature Sydney Blue Gum in an adjacent reserve.

23 The Blue Gum is healthy with no obvious structural defects and with a normal amount of dead wood in the canopy.

Jurisdictional tests and findings

24 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that either of the trees 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. These tests must be applied to each tree subject to the application.

25 Dealing first with the Lillypilly, the size, location and extent of the dead wood in the tree is such that when it falls, it could cause injury to any person. Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order with respect to this tree and that element of risk.

26 However, the applicants' primary concern is with the falling fruit rather than the dead wood. The Court has published a Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 that considers for those who live in urban leafy environments and who enjoy the environmental and aesthetic benefits that trees provide, the shedding of leaves, fruit, small elements of dead wood and so on would not ordinarily lead the Court to order any interference with the tree on that basis. It goes on to say that regular external housekeeping is to be expected.

27 In this matter, the applicants have not proved exceptional circumstances that would prevent this expected degree of external property maintenance nor any incapacity of the people using the driveway that would make the use of the driveway by pedestrians untenable. Therefore while the fruits, if left on the driveway, may constitute a slipping hazard, as a matter of discretion afforded by s 9 of the Act, I see no reason to depart from the principle in Barker and no order will be made for the removal of all branches overhanging the shared driveway.

28 With respect to the Blue Gum, I accept that the predictable falling of dead wood from this tree could cause injury to any person and could, in the near future, cause damage to the applicants' property. The regular removal of dead wood is a measure that can reasonably reduce a foreseeable risk.

29 While two small live branches that had failed were seen at the hearing there is no evidence of any structural defects that may predispose the failure of other live branches onto the applicants' property. Of the branches that were seen, one appeared to have been damaged by cockatoos and the other blew off in very strong winds. The removal of the tree on the basis of these failures is disproportionate to the risk the falling of such branches pose. The removal of all risk posed by trees is impractical as well as environmentally undesirable; it is not possible to live in a risk-free environment. Similarly, there are no signs of any instability of the root plate of the tree that would predispose the tree to whole tree failure.

30 Before considering what orders could be made, the Court must consider a number of matters under s 12 of the Act. The relevant clauses in this case are:

(a) The trees are wholly located on the respondents' property.

(b3) Pruning either tree of dead wood will have no impact on the trees, however removing half the canopy of the Lillypilly, as sought by the applicants, will have a detrimental impact on its health as well as its appearance.

(d) Both trees will contribute to the local ecosystem and to biodiversity. The Blue Gum appears to be a self-sown tree. The parties' properties adjoin a council reserve in which there are a number of remnant Sydney Blue Gums. Therefore the Blue Gum in question is likely to be of local provenance and therefore of ecological importance.

(e) Both trees contribute to the scenic value of the land on which they are growing and to the locality. The landscape character of the area is dominated by trees and other vegetation.

(f) Due to the size and location of the trees, they are visible from surrounding properties, contribute to the landscape character and therefore have value to public amenity.

(g) As both trees are growing on soil now retained by a wall, they will have some role in maintaining soil stability.

(h)(i) In considering the alleged damage and the claim for compensation, the displacement of the fence is likely to be caused by the growth of the root-crown of the Blue Gum, however the initial location of the post is a contributory factor. Similarly, some of the displacement of the corner post of the raised garden bed may have been caused by the growth of the tree. However other contributing factors may be the inadequate engineering of the corner post and the pressure of soil and water over the last 13 years. The soils on the site are shale-derived clays.

31 In summary, the trees provide a number of benefits and have value in the landscape. However, those values and benefits must be balanced against the risks posed by the trees to people and property.

32 An important question to be asked is how much damage to what is now the applicants' property has been caused by the tree in the time they have owned the property.

33 The test requires the damage to be damage caused to the applicant's property whilst owned by the applicant. I am not satisfied from the evidence that the applicants have proved on the balance of probability (that being the relevant test), that the displacement of the fence and the retaining wall and the damage to the tiles have happened in that brief time. It is more likely that the majority of the damage occurred when the property did not belong to the applicants and the property was in that condition when the applicants purchased it.

34 It is reasonable for me to assume that the applicants paid 'market value' for their property. Such a sale requires a willing buyer and a willing seller with both parties fully aware of all factors that affect the value of the property. This is a case of caveat emptor or let the buyer beware. In this case, the tiles are highly likely to have been already cracked, the fence was already displaced, the retaining wall post was already leaning and the Blue Gum was clearly well established. At best, 1/12 of the damage to the retaining wall and the fence has occurred during the time the property has been owned by the applicants.

35 Therefore I am not satisfied that the applicants have a strong case on the basis of past damage. However, as previously stated, that is not to say that the tree could not cause damage or injury in the future.

36 Returning to the applicants' position that the tree should be removed on the basis of damage it has caused or could cause, I consider this to be disproportionate to the actual risk it poses. However, some management of the tree and its surrounds is warranted.

37 At the hearing it was suggested to the applicant that one possible way of dealing with the retaining wall and the displaced post is for the wall to be slightly reconfigured to accommodate the future growth of the tree by altering the point at which it deviates to create the raised garden bed. This would involve starting the raised garden bed from the post to the west of the present corner post; this would reduce the area of the ground level garden bed only marginally. Mr Liang considered this would compromise his life style and he would only be satisfied with the removal of the tree. However, in the circumstances, I consider this option to be practical and cost effective.

38 With respect the fence, I am satisfied that it could be rebuilt in a way that accommodates the future growth of the tree. As previously stated the problem appears to be largely the result of the position of a post. The two affected panels could be increased to three with the posts for the middle panel located away from the root crown. This panel could also be raised slightly higher above ground than the adjoining panels in order to accommodate future growth of the base of the tree.

39 With respect to who should pay, I consider it unreasonable for the respondents to make any contribution for damage to tiles. The removal of dead wood on an ongoing basis will remove the most likely tree-related cause of future damage to the roof of the applicants' dwelling. The fence is the dividing fence between the two properties and given the fact that the fence was substantially in that condition when the applicants purchased their property, the cost of replacement of the relevant panels should be equally shared between the parties. With respect to the retaining wall, putting the applicants' position at its highest, the contribution of the tree during the time of their occupation is at best 10% and then allowing another 20% for future damage, the respondents should contribute 30% of the cost of removing and replacing the section of retaining wall in question in the manner outlined in para 37. The new corner post and attachments must be designed and installed to a higher standard than the current post.

40 Therefore as a result of the forgoing, the Orders of the Court are:

(1) The application to prune the overhanging branches of the Lillypilly is dismissed.

(2) The application to remove the Blue Gum is dismissed.

(3) The application for compensation for repair of roof tiles is dismissed.

(4) The application for compensation for repair of the fence and retaining wall is upheld in part.

(5) The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood from both trees down to a diameter of 25mm.

(6) The work is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(7) The applicants are to provide all reasonable access for the works to be carried out in a safe and efficient manner.

(8) The respondents are to give the applicants at least 2 working days notice of the commencement of the work.

(9) The pruning is to be carried out within 30 days of the date of these orders.

(10) Orders 5 - 8 are to be carried out every two years within 14 days either side of the date of this hearing.

(11) Within 60 days of the date of these orders, the applicants are to obtain 3 quotes for the replacement of the 2 displaced fence panels in proximity to the Blue Gum in the manner described in para 38 of this judgment.

(12) Within 60 days of the date of these orders, the applicants are to obtain 3 quotes for the reconstruction of the nominated section of retaining wall in accordance with the description in para 37 of this judgment. The new corner post and the attachments to the horizontal members are to be of a higher structural standard than the current situation.

(13) The respondents are to provide all reasonable access for the quoting of the work in order 11.

(14) In that time, the applicants are to provide copies of the quotes in orders 11 and 12 to the respondents. The respondents have 7 days to select the choice of contractor(s) otherwise, the applicants choose the contractor(s).

(15) If the quotes are not obtained and forwarded to the respondents within 60 days of the date of these orders, order 18 lapses.

(16) These construction/ repair works are to be completed within 90 days of the date of these orders. No roots are to be cut in the carrying out of these works.

(17) If the works are not completed within 90 days of the date of the orders, order 18 lapses.

(18) The respondents are to reimburse the applicants 50% of the cost of the repair of the fence and 30% of the cost of repair of the retaining wall within 21 days of a receipt of tax invoices for the completed works.

(19) If the tax invoices for the completed works are not forwarded to the respondents within 14 days of the completion of the works, order 18 lapses.

J Fakes

Commissioner of the Court

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Decision last updated: 25 February 2011