Land and Environment Court New South Wales

• Medium Neutral Citation: Achelles G & C v Eventful Productions Pty Ltd [2011] NSWLEC 1090
• Hearing dates: 19 April 2011
• Decision date: 19 April 2011
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

Application to remove trees upheld in part.

Compensation for repair of pavement ordered.

• Catchwords: TREES [NEIGHBOURS]: injury to persons, damage to property.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: APPLICANTS; George and Cleo Achelles; RESPONDENTS; Eventful Productions Pty Ltd
• Representation: George and Cleo Achelles (Applicants in person); Mrs Melville (Respondent)
• File Number(s): 20832 of 2010

Judgment

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

1. ACTING COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by Mr and Mrs Achelles, the owners of a property in McGee Avenue, Wamberal against Eventful Productions Pty Ltd, owners of an adjoining property in McGee Avenue.

2. The applicants' son Mr M Achelles represented his parents at the on-site hearing.

3. Mrs Melville represented the respondents, Eventful Productions Pty Ltd.

4. The applicants are seeking orders for the removal of sixteen nominated trees on the respondent's land. The trees grow as a hedge on a north-south alignment along the eastern boundary of their property. They contend that the roots from the respondent's trees are continually lifting brick pavers along a pathway on the eastern side of their home and extending into their outdoor seating area. They contend that the uplifted pavers are a trip hazard. The applicants submit that they are senior citizens aged 81 and that as a result of existing health problems, an injury arising from tripping would complicate their circumstances.

5. The applicants also seek orders for the respondents to pay for the repair of brick paving that they say is damaged as a result of root growth from the respondent's trees.

6. Before commencing discussion of the issues concerning each of the individual trees, it is necessary to note that before the Court has jurisdiction to consider making any orders with respect to a particular tree, the Court must be satisfied that at least one of the four jurisdictional tests set by s 10(2) of the Act is met. The tests are whether the tree has caused, is causing or is likely in the near future, to cause damage to the applicants' property, or whether the tree is a likely risk of injury to any person. Each of these questions must be asked separately with respect to each of the trees. The standard of satisfaction I am required to have before affirming an answer to any one of these questions is the civil standard of proof - that is on the balance of probabilities.

7. The application contains a diagram showing the approximate location of the sixteen trees in relation to the applicants' house and gives a sequential numbering commencing with tree T1 to the south and culminating at T16 to the north. I propose to adopt the application diagram tree identification numbering for the purposes of this hearing.

8. The application diagram also shows approximate locations of damaged brick pavers along a narrow pathway at the eastern side of the applicants' house and adjacent to tree T1 and extending to northwards to tree T10 at which point there is a small pergola enclosing a brick paved seating area.

9. Mr Achelles contends that his elderly parents now have difficulty using their outdoor seating area because of the risk of tripping on uplifted and undulated paving in the area between their front door and the pergola.

10. The applicants also contend that the respondent's trees are likely to damage their house foundations and damage a termite prevention system they have installed along the eastern side of their dwelling, a specific matter to which I will return later.

11. The sixteen trees in question are semi-mature Brunnings Golden Cypress, ( Cupressus macrocarpa Brunniana Aurea ). They are situated about 300mm from the property boundary and at a regular spacing between trees of about 500mm. As such, the trees form a hedge some 8 or more metres high and about 6 m wide.

12. Mr Achelles stated that the sixteen trees were present when his parents acquired their property 18 years ago, although the trees were substantially smaller at that time.

13. The applicants submitted copies of letters they wrote to the previous owners of the adjoining property in June 2004, January 2005 and July 2005 seeking resolution concerning branches rubbing against external walls, roof, eaves and gutters and the risk of root damage.

14. Mr Achelles said his parents did not receive a response to any of the letters and subsequently they undertook to do some pruning themselves.

15. The respondents acquired their property about 2 years ago and since that time it has been tenanted and managed by L J Hooker, Real Estate Agent, Terrigal.

16. In July 2009 the applicants wrote to the respondent's Real Estate Agent requesting removal of the trees, and in particular the removal of the eight to ten trees immediately adjacent to their house on the grounds that the trees were increasing in size and presented a risk of damage to their property. This letter did not make mention of any pavement damage.

17. At the on-site hearing Mrs Melville said that she was aware that there had been an ongoing dispute with the previous owners concerning the trees and that she had inherited the problem. She said that on receipt of the applicants' letter of July 2009 she arranged for a gardener to prune all of the low branches from the sixteen trees.

18. At the hearing Mr Achelles pointed to a slight bow in the alignment of an approximately 500mm high timber retaining wall located on the applicants' land just inside the eastern boundary with the respondents land. Mr Achelles said he thought the wall was constructed at some time in the early 1980s and he contends that roots from the respondent's trees have caused the bow in the wall.

19. Given that the treated pine log wall was constructed more than 25 years ago, then over the course of time a minor bow in its alignment might be reasonably expected and in my view is not satisfactory evidence of causation with respect to the respondent's trees and I would reject this aspect of the claim to remove any of the respondent's trees.

20. I asked Mr Achelles to explain the basis for seeking the removal of trees T11 through to T16, these being trees that border the applicant's northerly-situated garden bed at some distance from any paved areas and from the applicants' house. Mr Achelles was unable to give any satisfactory reason and therefore I reject this aspect of the claim to remove these trees.

21. Mr Achelles expressed concern about the potential for damage to an in-ground termite protection system installed along the eastern side of the applicants' house. He contends that because the termite installation incorporates a partly perforated pipe system, whereby the pipe has perforations on the upper side and retains a chemical liquid inside the pipe and beneath the holes, and so there is ready access for tree roots. Once roots got inside the pipe they would limit or nullify the function of the protection system.

22. I am satisfied on the basis of the close proximity of trees T1 to T7 inclusive, that distance being some 1.5 m from the termite pipe system, and on the visible evidence of pavement lifting adjacent to the termite system, that roots from the respondent's trees are likely in the near future, to cause damage to the applicants' termite protection system. In this regard the 'near future' is generally considered by the Court to be a period of 12 months from the date of the hearing as published in Yang v Scerri [2007] NSWLEC 592. As a result of the forgoing the Courts jurisdiction is enlivened.

23. With respect to the damaged brick paving in the outdoor area where Mr Achelles says his elderly parents regularly sit, I observed a substantial number of displaced brick pavers, as well as displaced pavers and undulations in the pavement along the eastern pathway adjacent to trees T1 to T8.

24. In proximity to trees T7, T8 and T9 and within the paved seating area, I observed a root of about 12mm in diameter growing between and slightly above some displaced pavers. This root displayed the bark characteristics of a coniferous species. As there are no other trees in the immediate area, either on the applicants' or the respondent's land, I am satisfied that trees T1 to T10 have caused the pavement damage. As a result one of the tests under s 10(2) of the Act is met and the Courts jurisdiction is enlivened.

25. I put to Mr Achelles the proposition that the damaged pavement might be repaired without removing any of the respondent's trees, a proposition to which he agreed with in principle, however he contends that trees T1 to T10 are very close to his parents' house, and advice he had from Gosford Council that the trees and their root systems will grow substantially larger, and he would be committed to a repeating cycle of pavement damage, elevated risk, followed by pavement repair. He argued also that the effectiveness of the termite system would remain at risk.

26. Mrs Melville said that in February 2011 the respondents wrote to the applicants offering to pay 50% of the cost of removing any trees causing direct damage to their property.

27. Mr Achelles said he declined the respondent's offer on the basis that he had already incurred expenses in relation to the respondent's trees and did not wish to incur further costs.

28. Before determining an application, the Court is to consider a number of matters under s 12 of the Trees Act.

29. The relevant matters in this case are:

(a) the sixteen Golden Cypress trees are located wholly within the respondents property.

(b3) the trees do not afford any privacy since their lower branches have been removed back to the trunk from ground level to a height of about 2.5m so that there is clear visibility between the applicants' and the respondent's land.

(e) the trees contribute to the scenic quality of the land and to the immediate locality of the street although this contribution is quite limited.

(h) (ii) the applicants have previously lifted pavers, removed root matting and re-laid pavers at their own expense.

(j) it is relevant in this case to note the reason for ordering a proportional share of the cost of repairing the brick pavement. In my view the applicants should bear a proportion of the repair costs since at no time did they communicate to the respondents their concerns about the pavement damage and the associated risk of injury this presented. As a result of this omission it would have been reasonable for the respondents to form the view that the applicants' concerns could be addressed by the pruning they commissioned.

30. As a result of the forgoing, the orders of the Court are:

1. The application to remove the trees is upheld in part.

2. The application to remove trees T11 to T16 inclusive is dismissed.

3. Trees T1 - T10 inclusive as identified on the applicants submission, being those Golden Cypress trees on the respondent's land in a single row extending from the south to the north along the boundary between the properties, are to be removed at the respondent's cost within 30 days of the date of these orders.

4. Within 60 days of the removal of trees T1-T10 inclusive, the applicants are to obtain three quotes for the lifting, root removal and re-setting of displaced pavers within the footway along the eastern side of the applicants' house and extending to the northern end of the pergola at the front of the property and to a point not more than 2m west of the applicants' timber retaining wall.

5. The applicants are to provide the respondents with a copy of the quotes and the respondents have 7 days from receipt of the quotes to choose a contractor and to notify the applicants, otherwise the applicants choose the contractor.

6. The applicants have 120 days from the date of these orders for the work to be completed otherwise order 7 lapses.

7. The respondents are to reimburse the applicants 80% of the cost of lifting, root removal and resetting the displaced pavers within 21 days of the receipt of a tax invoice for the completed work.

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 01 June 2011