Land and Environment Court New South Wales

• Medium Neutral Citation: Grant v Fletcher & anor [2011] NSWLEC 1108
• Hearing dates: 23 February 2011
• Decision date: 07 March 2011
• Before: Fakes C

Decision

1. The application to remove the tree is upheld.

2. The application for compensation is dismissed.

• Catchwords: TREES [NEIGHBOURS]; damage to property; no practical alternative method of remedying or restraining damage by roots
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Randwick Local Environmental Plan 1998
• Category: Principal judgment
• Parties: APPLICANT; E Grant; RESPONDENTS; B and S Fletcher
• Representation: RESPONDENT; Mr P Knowles; APPLICANT; Ms E Grant [litigant in person]
• File Number(s): 20871 of 2010

Judgment

1 This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 made by the owner of a property in Kensington against the owners of a tree growing on adjoining land. The respondents were represented by Mr Knowles, barrister; the applicant was self-represented. Mr B Bourke, Tree Management Officer from Randwick Council attended the hearing.

2 The applicant is seeking orders for the removal of a large Cinnamomum camphora (Camphor Laurel) growing on the respondents' property. These orders are sought on the basis that the tree has caused damage to a concrete path, a brick retaining wall adjacent to the tree and to the timber dividing fence. She also contends that as the damaged path is the only external access to the rear and side of her property, its current condition creates a tripping hazard and therefore there is a risk of injury. [It is noted that at the hearing the applicant also raised the issue of damage to a wall of the house however this is not specifically listed in the application but is referred to in correspondence and reports attached to the application.]

3 The applicant is also seeking compensation of an estimated sum of $5269. This figure includes reimbursement for an arborist's report, the removal of roots from under the damaged concrete path, the removal and reinstatement of the concrete path and brick retaining wall, and repair of the fence after the removal of the tree and roots.

4 The respondents do not dispute the fact that the root system has caused damage to the applicant's property however they do not wish to remove the tree as they value it for the privacy, noise buffering and shade it provides to the upper storey of their dwelling. They also contend that the tree contributes to the streetscape and to their property. While accepting the tree has caused damage, the respondents contest the payment of any compensation for the damage but propose alternative arrangements for the making good of the path and to which they would contribute $3000.

5 The tree is a mature, healthy specimen with no obvious structural defects growing on the northern side boundary of the respondents' property. The tree is in excess of 20m high. The tree consists of two main stems. An arborist engaged by the respondents estimates one stem to be about 700 mm in diameter at breast height (DBH) and the other to have a DBH of about 400 mm. A portion of the lower part of the trunk is located on the applicant's land however the tree is clearly substantially on the respondents' land.

6 The respondents' property is listed as a local heritage item in the Randwick Local Environmental Plan 1998 . However, the tree does not form part of the description.

Relevant background

7 The applicant has owned her property since 1979. The property is currently tenanted. In 2005 the applicant wrote to the then owners of the respondents' property advising them of the damage the tree was causing to her property and requesting they remove the tree. The applicant included photographs of the damage to the path and the retaining wall at that time. [The letter and photograph are included in exhibit A.]

8 In 2007, the applicant again wrote to the previous owners of the tree and advised them that Randwick Council's Tree Preservation Order (TPO) did not cover the tree and therefore council permission was not required for its removal.

9 The respondents' property changed hands and in 2009 the applicant wrote to the new owner advising them of the problems with the path, retaining wall, the fence and cracking of internal walls of the house adjacent to the tree. The applicant included a copy of the TPO and stated that permission was not required for its removal.

10 The applicant obtained a tree report from Mark Hartley dated 2 November 2009. By the applicant's admission at the hearing, this was sought in anticipation of the making of this application to the Court. The report contains an acknowledgment of Schedule 7 of the Uniform Civil Procedure Rules 2005 as well as information on the Trees Act and advice on how the client could proceed.

11 The respondents settled the purchase of their property on 11 December 2009.

12 The applicant wrote to them on 25 January 2010 regarding the tree but this letter was returned unopened. The first letter received by the respondents from the applicant was on 14 February 2010. The correspondence included in the application (exhibit A) demonstrates the actions of the parties to find a solution. The applicant remains adamant that the tree be removed. The respondents sought their own arboricultural advice from Apex Tree and garden Experts (report dated 20 July 2010) in order to better understand the issues and what options, apart from removal, would be feasible. The respondents maintain they were unaware of the history of problems with the tree when they purchased the property.

13 The parties attended a mediation session at the Community Justice Centre on 1 October 2010 however the matter was not resolved.

The damage

14 The damage is lifting and cracking of an approximately 10 m section of a concrete path and the displacement/ dislodging of a section of associated low brick retaining wall. The displacement of the path starts about 2m to the east of the side gate. The applicant's dwelling is a single-storey semi-detached house and the path on the southern boundary is the only external access to the rear of the property. The greatest degree of uplift and cracking is 2-3 m either side of the base of the tree. I would agree with the applicant that the uplift is approximately 200mm above grade at its highest.

15 The applicant stated that in heavy rain, water pools against the house because the uplifted path prevents flow to the street.

16 The low brick retaining wall is two courses of bricks high above the path. Photographs taken in 2005 show a 2-3 m section of the wall collapsed onto the path. Photos taken in 2009 show that potion covered with roofing tiles and another small section collapsed near the gate. The wall retains soil in a narrow garden bed along the fence.

17 The timber dividing fence was installed in 2008 and is relatively new. The panel near the tree has been constructed with a gap to accommodate the trunk and to allow for a degree of expansion. The applicant contends that this panel has been pushed out in the past year however, there no clear evidence that this had occurred.

18 The applicant was asked to show the Court what damage has occurred to the path and wall in the 14-month period over which the respondents have owned the property.

19 Photographs taken in 2005 show displacement and cracking of the path and the dislodgment of a section of the brick wall. Photographs in 2009 show the damage to the path had increased and was similar to that observed at the hearing. There is probably slightly more uplift of the most damaged slab however, it is very clear from the photographs that the damage existed well before the respondents owned their property and that nothing has materially changed in the past 14 months.

Risk of injury and other issues

20 The applicant contends that as the path is the only external access to the rear of the property that anyone using the path is at risk of tripping.

21 The applicant also raised concerns over the degree of shading of her property by the tree. The applicant was informed that Part 2 of the Trees Act does not apply to obstruction of sunlight and as she had not made an application under Part 2A of the Act, the Court has no jurisdiction with respect to light and therefore the issue was not relevant to the proceedings.

Positions of the parties

22 The applicant is adamant the tree must be removed because in order to restore the path to a serviceable flat level, the roots must be removed and this would destabilise the tree. She is also concerned that unless the tree is removed, the damage will continue.

23 As stated previously, the respondents do not wish to remove the tree as they value it for privacy, shade and noise amelioration.

24 During the hearing we viewed the respondents' property from street level outside two unit blocks; one two-storey block directly opposite and the other 4-storey block diagonally opposite but some 50 or so metres away to the north west. The view from the pool at the rear of their property through to the street was also noted. The respondents contend that the tree provides privacy to bedrooms located on the top storey of their dwelling and to the pool at the rear.

25 From the observations made at the hearing, the tree may screen views of the top floor window on the northern side of the dwelling from the unit block to the north west however that unit block is some distance away. The view to the pool from the unit block across the road is partially blocked by the canopies of several mature Camellias although the Camphor Laurel does provide some additional screening. It is noted that screening from the applicant's property is provided by shrubs and small trees planted along the northern boundary of the respondents' land including several Lillypillies, Camellias and Pittosporum.

26 Apart from privacy issues, the respondents value the tree for the shade it provides. In the absence of the tree the upper portion of the northern side of the dwelling would receive full sun. The respondents contend they may need to install air conditioning if the tree is removed. The properties are on a busy local distribution road and the respondents consider the tree provides some amelioration of the traffic noise.

27 The respondents rely on alternative measures given in both arborists' reports. Mr Hartley suggests it may be possible to install a raised walkway, perhaps of metal, that could resist the forces exerted by the roots, or a surface that could be regraded every year or so such as decomposed granite. He is of the opinion that to relay the path at the existing level a number of large roots will have to be removed. The majority of Mr Gatenby's report focuses on options for managing root growth into pipes, an issue not raised in the application. His preferred option for the path is the grinding of surface roots and the use of unit pavers for ease of regrinding and relaying in future. It is noted that the paving adjacent to the tree on the respondents' property is brick paving. It is clear that root growth has created undulations in this pavement. Mr Gatenby's recommendation for the respondents' property is also grinding of roots and relaying the pavement.

28 The option of a raised walkway was discussed on site. Mr Knowles for the respondents indicated that he thought it could be achieved by incorporating a step at either end. The applicant did not think a step was reasonable or practical, particularly as building works are about to commence. She was opposed to decomposed granite because of the impact of water flowing down the path. As previously stated, her position is that the tree should be removed and the concrete path reinstated.

Jurisdictional tests and findings

29 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.

30 In this matter I am satisfied that the tree has caused damage to the path and the low brick retaining wall. I am also satisfied that the damage has resulted in a trip hazard and therefore the tree has created a risk of injury. Therefore, as two of the tests under s 10(2) are satisfied, the jurisdiction is enlivened and the Court can make an order under s 9.

31 However, before making an order, the Court must consider a number of matters under s 12 of the Act. The relevant clauses in this case are:

(a) The tree is substantially on the respondents' property.

(b) Mr Bourke confirmed that the tree is exempt from the Randwick Council Tree Preservation Order as it is within 2 m of a dwelling.

(b3) The tree does contribute to the privacy of the respondents' property and it protects the dwelling from the sun. There is no stated heritage significance of the tree. While the tree is quite large and of a reasonable age, it is unlikely to be contemporaneous with the dwelling.

(e)(f) The tree contributes to the scenic value of the respondents' property and to the streetscape. It has some value to public amenity.

(h)(i) The growth of roots appears to be the main contributing factor to the damage. Although the concrete is at least 30 years old it is in reasonable condition elsewhere.

(h)(ii) Apart from notifying the various owners of the tree the applicant has not undertaken any repairs of the pathway.

Conclusions

32 After considering the evidence I am satisfied that despite the obvious amenity the tree provides the respondents, the tree has caused and will continue to cause damage to the applicant's property.

33 The proximity of the tree to the path and the applicant's dwelling means that it is inevitable that the ongoing (normal) expansion of the large structural roots near the base of the tree will continue to displace any pavement placed over those roots.

34 I have considered the respondents' desire to retain the tree and the alternative pavement options. With respect to Mr Gatenby's suggestion of grinding surface roots and using unit pavers, I consider this would certainly lead to a decline in the health of the tree with the expected consequence of twig and branch dieback and the subsequent failure of dead branches onto both properties. The proximity of the base of the tree to the applicant's path and the extent of the uplift seen on site indicate large roots beneath the path. Grinding these could also lead to structural instability of the entire tree. While Mr Gatenby states that crown reduction would be required if grinding was to occur, such pruning would lessen the amenity value of the tree. Overall, this option is not practical or desirable in the circumstances.

35 Considering Mr Hartley's options, I agree with the applicant that decomposed granite would be impractical given the slope of the path, the position of the roots and the uncontested statements regarding flooding. While the raised walkway has some merit it would require careful design and installation and subsequent maintenance. It would require a ramp or stair at either end. In the circumstances, while the raised walkway is agreeable to the respondents it is not agreeable to the applicant for a number of reasons. It would become a structure for which the applicant will be responsible.

36 Regrettably, the only practical solution to remedy the damage and to prevent future damage is to remove the tree.

37 With respect to the application for compensation, the damage existed before the respondents owned their property. The photographic and on-site evidence shows an insignificant change in the degree of uplift during their period of ownership and the extent is such that it would create no additional expenditure. No orders will be made for the respondents to make any contribution to the removal and replacement of the concrete path and the retaining wall. This includes the removal of the roots beneath the path.

38 In regards to the fence, this is the shared dividing fence between the two properties and the parties should share any costs associated with its repair.

39 Commissioners do not have the jurisdiction to award costs associated with the making of an application; this includes costs of expert reports.

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

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

(2) The respondents are to engage and pay for an AQF level 3 arborist with the appropriate insurances to remove the tree to ground level and to treat the stump (by grinding or poisoning) to prevent regrowth.

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

(4) Should it be required, the applicant is to provide any necessary access for the work to be carried out in a safe and efficient manner.

(5) The respondents are to give the applicant and the occupants of the applicant's property at least 3 working days notice of the commencement of the works.

(6) The work is to be completed within 60 days of the date of these orders.

(7) The costs of any necessary repairs to the fence as a result of the tree removal are to be shared equally between the parties.

(8) The application for compensation for the removal and replacement of the path, the brick retaining wall and including the removal of the roots beneath the path is dismissed.

J Fakes

Commissioner of the Court

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Decision last updated: 18 May 2011