Land and Environment Court New South Wales

• Medium Neutral Citation: Proprietors SP 9467 v Motyl and anor [2011] NSWLEC 1120
• Hearing dates: 12 May 2011
• Decision date: 12 May 2011
• Jurisdiction: Class 2
• Before: Moore SC, Fakes C

Decision

(1)The application concerning the camphor laurel on the western boundary of the respondents' property is dismissed by consent.

(2)The respondents are to obtain three quotes for the removal of and replacement of the common boundary fence for its entire length. Those quotes are to be for a 2.2 m high brown Colorbond fence.

(3)The respondents shall select which of the three quotes the respondents wish to accept.

(4)Copies of all three quotes are to be provided to the applicant and the applicant's limitation on reimbursement is to be to 50% of the lowest of the three quotes provided to them.

(5)The fence removal is to be followed by the removal of the two camphor laurel trees adjacent to the boundary between the applicant's and respondents' property.

(6)Those trees are to be removed in their entirety and stump ground to 200 mm below ground level and the remaining root system poisoned.

(7)The fence is to be replaced after the trees have been removed.

(8)The applicant is to reimburse the respondents one half of the cost of the removal and reinstatement of the fence, but limited to the lowest of the three quotes that are served upon the applicant.

(9)The applicant is to reimburse the respondent 20% of the cost of the removal of the two trees, within 28 days of being served with a receipted invoice for the completion of those works.

(10)Payment of the proportion of reimbursement of the cost of the removal and reinstatement of the fence is also to be within 28 days of the service of a receipted invoice upon the applicant for the completion of those works.

(11)The removal of the trees is to be carried out by an AQF level III arborist with appropriate insurances.

(12)The applicant is to grant access to the respondent for all the works that are required as a consequence of these orders and that access is to be on reasonable notice at a reasonable hour of the day and the applicant is entitled to supervise the exercising of that access; and

(13)All the work that is required to be carried out by these orders is to be carried out by 31 August 2011.

• Catchwords: Unsatisfactory document purporting to be an expert report; matters required to be addressed in expert reports in tree applications; damage to fence; dilapidation of remainder of dividing fence not impacted by trees; roots blocking terracotta drainage system; apportionment of rectification works
• Legislation Cited: Trees Disputes Between Neighbours Act 2006; Dividing Fences Act 1991; Uniform Civil Procedure Rules 2005
• Category: Principal judgment
• Parties: The Owners Corporation SP 9467 (Applicant) Estate of L Motyl (First respondent); H Motyl (Second respondent); S Robinson (Third respondent)
• File Number(s): 20999 of 2010

EXTEMPORE Judgment

1 In proceedings under the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), it has become a regular practice for persons who hold themselves out to be competent arborists to provide reports that purport to be expert reports, in support of one or other parties, to proceedings under the Trees Act . In this case, we have such a document, written by a Mr Mark Hartley, which purports to be an expert report.

2 It is appropriate, given the deficiencies in this document deficiencies that are reflective of the general nature of deficiencies that occur on a widespread basis in proceedings such as this - to make some comment about this document provided by Mr Hartley, as he has specifically referred to the Expert Witness Code of Conduct and the requirements under the Uniform Civil Procedure Rules 2005 for such documents. The document is, in our opinion, not worth having been provided to us. This occurs for a variety of reasons. First, the fundamental basis for expert statements of evidence, in proceedings before the Court, is that the expert should set out the facts upon which they rely; the assumptions that they make with respect to those facts; and the conclusions that they draw from them. Where matters of fact are asserted, including statistical matters, appropriate reference bases should be provided for that.

3 In this instance, in para 2 of the document provided by Mr Hartley, there is a statement that, "There has been no evidence that the trees have damaged the fence", that is the subject of the dispute. That statement is patently and demonstrably false. It is patently and demonstrably false, because on our attendance at the site, there is a significant portion of a number of palings on the fence that have been displaced by the trunk of a tree and the trunk of the tree extends across the dividing line between the two properties. An attendance at the site, if Mr. Hartley has made it, would have meant a complete understanding of that displacement of the fence - a position that is factually contrary to what is stated in his so-called report.

4 There are a number of statistical statements that, and I quote:

"In fact based on a cursory inspection it would be hard to believe that the Risk of Harm associated with any of those trees is greater than 1 in 1,000,000 and no practicable solution would therefore exist to reduce that risk of harm".

5 There is no basis provided for such a calculation, no basis upon which that alleged statistic is founded or of the further alleged fact that the mortality risk to people inside houses from trees is approximately 1 in 200,000,000. A document of that nature with no valid references, no reasons to demonstrate the facts that cause him to form assumptions leading to that conclusion, means that that document is in fact an entirely useless document as far as we are concerned. The fact that it is significantly and fundamentally factually inaccurate with respect to a foundational element in the proceedings also renders its utility to be zero.

6 We now turn to the matters that we need to deal with on the merits of this dispute. The application made by the proprietors of the Strata Plan sought, in its initial form, orders for the removal of three camphor laurel trees two of which are on the boundary between the Strata Corporation's property and the property of the respondents and one of which is on a boundary of the respondent's property with another neighbour, but a little removed from the Strata Plan's boundary.

7 During the course of the proceedings, the applicant indicated, through its representative, that it did not press the application with respect to the tree that is removed from the common boundary and, as a consequence, the application will be dismissed to the extent that it relates to that tree.

8 Second, during the course of the proceedings, it became obvious that the application with respect to the fence was not only one seeking replacement of those elements of the fence that have been impacted by the two remaining camphor laurel trees are now the subject of the application, but also with respect to the replacement of the remainder of the fence because of its dilapidation.

9 We granted leave to amend the application to include a supplementary application, pursuant to the Dividing Fences Act 1991, with respect to the remainder of the fence not impacted by either of the camphor laurel trees and we have proceeded to determine the matter on that basis.

10 The evidence that we have from our inspection of the site and hearing those who have given informal evidence during the course of the proceedings is, firstly, that the fence (to the extent that it is in the vicinity of the camphor laurel trees), is impacted by one of those trees to the extent of perhaps a metre and a half or so in the vicinity of the more western of the two camphor laurel trees. Had that been the sole basis upon which interference with, or removal of the trees had been sought, that could have been accommodated by a redesigned fence without the need to interfere with or remove the trees.

11 However, the second basis upon which the application is founded for removal of the trees concerns the past blockages of the stormwater drainage system on the applicant's property. The stormwater drainage system, from our inspection of it and from the age of the premises, is clearly one based on terracotta piping systems and is some 30 plus years in age.

12 There is no doubt, we are satisfied on the evidence, that, for those elements of the stormwater drainage system that run parallel to the boundary between the applicant and respondent's properties, there has been an intrusion by the roots of one or other (or on the evidence given to us more likely both) of the two camphor laurel trees that are now the subject of the application.

13 Given the age and the natural deterioration that will have taken place to the jointing of the terracotta pipes, we are satisfied that it is probable that, in addition to the damage that has been occasioned in the past, there would continue to be damage to the applicant's property occasioned by flooding being caused by the blockage of those pipes, if there was not some dealing with the cause of the root intrusion.

14 We contemplated, initially, whether it might be appropriate to order replacement of the stormwater system, either by re-sleeving or entire replacement of the pipes, but we are of the view that the disruption that that would cause to the applicant's property, let alone the significant cost that would be involved beyond any costs of removal of the trees, render such an approach inappropriate.

15 Having concluded that the damage is not able to be prevented for the future without the removal of the trees, we are reluctantly left with the conclusion that it is appropriate to order the removal of the two camphor laurel trees. We need to address, therefore, the question of who should undertake that work and the remaining provisions that would flow therefrom.

16 First, we observed that access of any reasonable major full replacement of the fence and full removal the trees is only possible through the applicant's property, without causing severe disruption to the respondent's property and the risk of severe damage to the carefully laid out and installed landscaping at the rear of that property. It is therefore appropriate as the applicant's have agreed to access through their property for these purposes, that such access be required on reasonable notice to the applicant, at a reasonable hour of the day and with the applicant having the opportunity to supervise the exercising of that access.

17 However, as the work needs to be carried out substantially on the respondent's property, it is, in our opinion, appropriate that the respondent be ordered to undertake the work. To the extent that there is to be apportionment of any costs ordered by us for both the fence and the removal of the trees, that proportion of the cost will be met by the applicant within a specified period of time after the service upon them of receipted accounts for the completion of the works.

18 As a consequence all of that, we have concluded that it is appropriate to order replacement of the fence in its entirety. The parties have agreed that such a replacement of fence should be a 2.2 m high fence of brown or, midbrown Colorbond, erected along the common boundary. There is no dispute about that and the work should be carried out by the respondent.

19 With respect to the removal of the trees, having concluded that the trees should be removed, we also conclude that, as a consequence of the nature of the stormwater system on the applicant's property, the applicant should make a 20% contribution to the cost of removal of the trees. In order to prevent future suckering, it is appropriate to order the stump grinding of the trees and the poisoning of the residual stump system.

20 A consequence of all of that is that the Court makes the following orders:

(1) The application concerning the camphor laurel on the western boundary of the respondents' property is dismissed by consent.

(2) The respondents are to obtain three quotes for the removal of and replacement of the common boundary fence for its entire length. Those quotes are to be for a 2.2 m high brown Colorbond fence.

(3) That the respondents shall select which of the three quotes the respondents wish to accept. Copies of all three quotes are to be provided to the applicant and the applicants limitation on reimbursement is to be to 50% of the lowest of the three quotes provided to them.

(4) The fence removal is to be followed by the removal of the two camphor laurel trees adjacent to the boundary between the applicant's and respondents' property.

(5) Those trees are to be removed in their entirety and stump ground to 200 mm below ground level and the remaining root system poisoned.

(6) The fence is to be replaced after the trees have been removed.

(7) The applicant is to reimburse the respondents one half of the cost of the removal and reinstatement of the fence, but limited to the lowest of the three quotes that are served upon the applicant.

(8) The applicant is to reimburse the respondent 20% of the cost of the removal of the two trees, within 28 days of being served with a receipted invoice for the completion of those works.

(9) Payment of the proportion of reimbursement of the cost of the removal and reinstatement of the fence is also to be within 28 days of the service of a receipted invoice upon the applicant for the completion of those works.

(10) The removal of the trees is to be carried out by an AQF level III arborist with appropriate insurances.

(11) The applicant is to grant access to the respondent for all the works that are required as a consequence of these orders and that that access is to be on reasonable notice at a reasonable hour of the day and the applicant is entitled to supervise the exercising of that access; and

(12) All the work that is required to be carried out by these orders is to be carried out by 31 August 2011.

Tim Moore

Senior Commissioner

Judy Fakes

Commissioner of the Court

Decision last updated: 20 May 2011