Land and Environment Court New South Wales

• Medium Neutral Citation: Prince & anor v Davies & anor [2011] NSWLEC 1087
• Hearing dates: 11 April 2011
• Decision date: 11 April 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application to remove tree dismissed;

Repair of paving ordered

• Catchwords: TREES [NEIGHBOURS]; damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592; Barker v Kyriakides [2007] NSWLEC 292; Hendry & anor v Olsson & anor [2010] NSWLEC 1302; Robson v Leischke [2008] NSWLEC 152
• Category: Principal judgment
• Parties: E & K Prince (Applicants); N & N Davies (Respondents)
• Representation: Mr K Prince (Applicant in person); Mrs E Prince (Applicant in person); Mr N Davies (Respondent in person)
• File Number(s): 20018 of 2011

Judgment

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

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 Naremburn against the owners of a tree growing on an adjoining property.

2 The applicants are seeking the removal of the tree as they contend it has caused damage to their property. This damage includes:

lifting of paving tiles and cracking of a concrete edge;

staining of pavers and outdoor furniture by pollen;

growth of mould on pavers and furniture due to shading by the tree;

bird droppings and pollen from the tree onto cloths on the clothesline; and

debris in the guttering.

3 The applicants are also seeking removal of roots from their back garden and repair of damage caused by the tree. In addition they are seeking reimbursement of costs associated with the making of the application including the filing fee, legal costs and a report identifying the species of the tree.

4 Dealing first with the compensation. Commissioners do not have the jurisdiction to award costs. If these are sought a further application must be made.

5 The tree is an Alnus acuminata subsp. glabrata or Evergreen Alder. It is one of 2 specimens planted adjacent to the rear boundary fence on the respondents' property. It is a mature specimen in healthy condition. The tree in question overhangs the rear courtyard of the applicants' townhouse. There has been some pruning of the canopy carried out in the past.

6 The applicants contend that this species is considered a 'weed'/ undesirable species by Willoughby Council and that this supports their position regarding its removal. The respondents value the tree for the shade and amenity it provides and do not want to remove it.

7 The major damage said to be caused by the tree is the lifting of pavers in the courtyard. This courtyard is approximately 1 m lower in grade than the respondents' property. The soil in a narrow garden bed along that boundary wall is retained by a log retaining wall. There is no obvious displacement of this wall.

8 I was shown several lifted pavers as well as one small section of broken concrete edging. This was in the eastern corner of the courtyard between the retaining wall and pavers near a sump. There are several other lifted pavers near the garden bed in the southern corner.

9 Roots exposed beneath the lifted pavers were positively identified by Mr John Ford, a specialist in root identification, as being from an Alnus sp. The applicants have reasonably assumed the roots arise from the Alder closest to their property.

10 With respect to the other issues raised by the applicants I observed leaves on the pavers, plants growing in the guttering and lichen, algae and mosses growing on the pavers in the shadiest parts of the courtyard.

11 Under s 10(2) of the Act, 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. If any of these tests are satisfied the Court then needs to consider whether the damage warrants an order of the Court.

12 I am prepared to accept that roots from the respondents' tree have caused the displacement of pavers. In an uncontested statement the applicants consider this has become more of a problem in the past 12 months. I accept that if left alone, there will be further displacement in the near future. In the matter of Yang v Scerri [2007] NSWLEC 592 the 'near future' is considered to be a period of 12 months from the date of the hearing.

13 Therefore, putting the applicants' case at its highest, I consider two of the tests under s 10(2) to be satisfied thus the jurisdiction is enlivened and the making of an order in regard to the lifting of pavers can be considered.

14 With respect to debris in the gutters and elsewhere, the Court has published a tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292 that states that for people who live in urban leafy environments, the dropping of leaves, fruits etc will not ordinarily lead to the making of orders for the intervention with a tree. Some degree of regular external house keeping is expected.

15 In Hendry & anor v Olsson & anor [2010] NSWLEC 1302 the principle in Barker was extended to issues of mould on paving and other surfaces. There is nothing in the evidence before me in this matter that would lead me to depart from the application of this tree dispute principle. In this case the mould and lichens are most likely to be the result of the aspect of the respondents' courtyard and the shading by the applicants' dwelling.

16 With respect to bird droppings, the Act does not apply to any animals or other creatures that live in or on trees and therefore no orders can be made in this regard - see Robson v Leischke [2008] NSWLEC 152 at [189].

17 I accept that the respondents value the tree for the shade and amenity it provides. The fact that a council's Tree Preservation Order does not protect a species of tree does not automatically imply that the tree should be removed. In matters that come before the Court, the particular facts and circumstances of each matter must be considered.

18 Coming to what orders should be made I consider the removal of the tree to be disproportionate to the damage caused. I note that the respondents have previously agreed to the relaying of the applicants' paving. In the circumstances I consider this to be the most appropriate action.

19 The area most affected is the strip within 2 m of the retaining wall along the respondents' rear boundary. It is not necessary to relay the entire courtyard. The pavers are to be lifted and roots removed to a depth of 200 mm. The roots are to be cleanly cut at the edge of the retaining wall/concrete edge. Before replacing the substrate and pavers, a rigid plastic root barrier is to be installed to a depth of at least 250 mm between the concrete edging and the pavers. The substrate is to be compacted, levels adjusted and the pavers relayed. This work is to be paid for by the respondents.

20 In conclusion the Orders of the Court are:

(1) The application to remove the tree is dismissed.

(2) The application to repair the damage is upheld in part.

(3) Within 90 days of the date of these orders, being the date of this judgment, the applicants are to obtain 3 quotes for the lifting and replacing of the paving and the installation of root barrier as described in paragraph 19 of this judgment.

(4) The applicants are to give the respondents copies of the quotes. The respondents have 21 days from the receipt of those quotes to select the preferred contractor or to obtain an alternative quote. If the respondents do not select a contractor in this time, the applicants choose the contractor.

(5) If an alternative quote is to be obtained, the applicants must provide all reasonable access for this to happen. The respondents or their contractor are to give the applicants at least 3 working days notice of the required access.

(6) The applicants are to engage the selected contractor and the works are to be completed within 6 months of the date of these orders otherwise order 7 lapses.

(7) The respondents are to reimburse the applicants the cost of the works within 21 days of the receipt of a tax invoice for the completed works.

J Fakes

Commissioner of the Court

Decision last updated: 01 June 2011