Land and Environment Court New South Wales

• Medium Neutral Citation: Carnus v Chiaraglio [2011] NSWLEC 1133
• Hearing dates: 18 April 2011
• Decision date: 27 May 2011
• Jurisdiction: Class 2
• Before: Moore SC, Galwey AC

Decision

Conclusion that damage established as being caused by the Lemon-scented Gum ( Corymbia citriodora) located on 87 Shepherd Street, Chippendale to 89 Shepherd Street was confined to the rear garden bed retaining walls and the upper rear level pavers.

Apportionment not appropriate for any costs associated with any order that might be made concerning the tree or concerning rectification of damage to the applicant's property found to have been caused by the tree.

Requirement that an opportunity be given to the owners of four other properties under the canopy of the Lemon-scented Gum to be heard on whether or not the Court should make any order for removal of or interference with the tree and whether or not access to that person's property should be ordered to give effect to any order for removal of or interference with the tree (if such an order were to be made).

The matter has been set down for a further on-site hearing on 16 June and directions given for service of the relevant documents, including this decision, on the relevant other landowners.

• Catchwords: Damage to property; opportunity to be heard to be provided to owners of properties owned by non-parties where there was potential for the orders to impact their properties or to require access to their properties
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292; Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280
• Category: Principal judgment
• Parties: L Carnus (Applicant); J Chiararaglio (Respondent)
• Representation: Applicant in person; Mr M Seymour (Respondent); Gadens Lawyers (Respondent)
• File Number(s): 20920 of 2010

Judgment

1 In a quiet street in densely settled inner urban Sydney, a spectacular and wide spreading canopy of a Lemon-scented Gum ( Corymbia citriodora) (the tree) overhangs the back yards and portions of the dwellings on six allotments. The tree has a diameter at breast height of ~ 1 m and has a height of 20 m or so. The tree is a magnificent and well-structured specimen of its type.

2 The tree also straddles the boundary between two properties with, in our estimation, approximately 25% of the trunk of the tree at ground level being on the applicant's property, the more southerly of the two properties involved in these proceedings, and 75% of it is located on the property to the north, owned by the respondent to these proceedings.

3 As it is relevant to a matter we need to determine, it is our opinion that, at the time when there were the first discussions between the applicant and the respondent about the impact that the tree might be having on the applicant's property (those discussions having commenced over five years ago), the portion of the tree that would have been on the respondent's property would have been greater than that which was evident during our site inspection - although it would not have constituted the entirety of the tree being on the respondent's property. However, it is certainly clear that, at the time the tree was but a seedling, it would have been entirely located on the respondent's property.

4 The application made pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) with which we are dealing is based on the claim by the applicant that the tree has caused and is continuing to cause damage to her property. The damage to her property upon which she bases her application falls into three distinct sections. These are:

• damage to the low garden bed retaining walls and the lifting of pavers in two areas of her rear courtyard area with this damage being caused by roots of the tree;
• lifting of a slab that provides the floor of a ground level only rear extension to her property, containing the kitchen, which extension was constructed in the mid-1990s; and
• cracking to the rear portion of the original Victorian-era fabric of the terrace house with that cracking causing, at its upper most level, water penetration and resulting damage to an upstairs bedroom.

5 The relief that is sought in the proceedings is an order for removal of the tree at the respondent's cost; reinstatement of the damaged portion of the common fence; and the payment of compensation for the cost of past and future rectification works. Removal of the tree (if ordered) is envisaged also to encompass removal of the root elements on the applicant's property.

6 The Trees Act requires that we consider various jurisdictional threshold questions requiring satisfaction before we can consider the range of other matters required in our assessment of whether or not orders should be made and, if they are to be made, what should be the nature of the remedies provided thereby.

7 In this instance, we are satisfied from our examination of the tree and the obvious delineation of the boundary between the properties (this being able to be identified from various party wall structures), that the tree is located principally upon the respondent's property. We were also able to observe a very substantial root from the tree on the applicant's property, where it had caused obvious damage to her property by displacement of a retaining wall. We are, therefore, satisfied that one of the necessary jurisdictional pre-requisites is met.

8 However, the satisfaction of that sufficient jurisdictional pre-requisite pursuant to s 10(2)(a) of the Trees Act (in that the tree has, in the past, caused damage to the applicant's property) does not mean that we are not required to consider, for each of the elements of damage that are raised by the applicant as having been caused by the tree, the question of whether or not we can be comfortably satisfied that it is sufficiently probable that that damage was occasioned by the tree before we can consider some remedy arising out of that damage.

9 Although we are satisfied that the damage to the retaining walls of the various garden beds in the rear courtyard and the lifting of the pavers toward the rear of the applicant's property has self-evidently been caused by roots from tree, we cannot be so satisfied with respect to the other elements of damage claimed by the applicant to have been so caused.

10 We turn, first, to the damage caused to the applicant's property by the separation of the rear addition from the main, older element of her property. Over objections from Mr Seymour, counsel for the respondent, we admitted a 2008 report from a structural engineer, Mr Hanna. In this report, Mr Hanna expressed this opinion:

Our inspection was only limited to visual aspects of the wall. footpaths and kitchen floor, without the undue interference of the building's structure, fittings and finishes.

There were very obvious serious damages to the retaining wall (refer photos 1,2, 3), damages to the footpath's brick paving (refer photos 4,5).

There is a large gum tree adjacent to the fence, the tree roots is clearly encroaching and damaging the fence (refer photo 6).

Given the close proximity of the tree roots to the damaged areas, we are satisfied that the tree roots have caused these damages.

The tree roots bas also caused damage to the kitchen floor (refer photos 7 and 8), and moved the parapet wall thus creating a gap in the roof and caused water leaks.

Given the nature of gum trees and the extensive roots it has, we do envisage this problem to get worse if unattended. There are new cracks developing in the kitchen wall, which indicates that the tree roots already starts to undermine the footings.

11 Based on this report, the applicant had applied to the Council of the City of Sydney (the council), with the consent of the respondent, for permission to remove the tree. The council denied permission on the basis that there had not been an adequate investigative process undertaken to demonstrate that Mr Hanna had a proper evidentiary basis for his conclusion.

12 After discussions between the parties in 2010, primarily by e-mail as the respondent resides in the United States, the applicant obtained a report from an arborist, Mr Coulter. The relevant portions of this report are in the following terms:

5.2 The tree is located on an exposed site with little protection from surrounding structures, trees and topography. The soil on site appears to be a sandy clay loam that has been disturbed previously. Based on the information provided by the client, the tree has caused damage to her retaining wall, pavers preventing her from opening her back door fully and to the rear of her house due to roots under the slab. Based on the information provided by the client, the trees in the immediate area and my site inspections this assumption appears to be accurate.

5.3 At the time of the inspection the numerous large roots could be seen pushing over and cracking the retaining wall and wooden fence. Tree roots were lifting pavers and appeared to grow in close proximity to the house located 1.5m form the base of the tree. To ascertain the amount of roots present. their size and position in relation to the slab a trench was excavated around the perimeter of the house at the rear and the north side to a depth of 600mm, just below the slab. The excavation revealed 1)( 60mm root at 1m from the rear comer of the house and 1)( 75mm root at 1.8m from the rear corner of the house. Both roots were growing under the slab.

5.4. The two roots located may be enough to cause damage to the building alignment as they increase in diameter. The damage to the pavers, retaining wall and fence are obvious and are caused by the tree. It appears that the tree is mature and is unlikely to increase much more in size. It is recommended that repairs to the damaged hardscapes are completed without cutting roots larger than 50mm within 5m from the base of the tree. An exception may be warranted for the two roots identified as growing under the slab. These roots only could be severed for the purpose of minimising potential damage to the client's residence.

6. Recommendations

6.1 The tree nominated to be inspected on the adjoining property to the rear of 89 Shepherd Street Chippendale has caused damage to the client's boundary fence, retaining wall, pavers and house. .........................................

13 We expressly note, at this point, that, whilst Mr Coulter's conclusions concerning the damage to the garden beds and the pavers were unequivocal, his conclusions in 5.2 and 5.3 quoted above, as they concerned the possible damage to the structure of the dwelling, in either aspect pressed by the applicant, were couched in cautionary terms in comparison to the explicit conclusion concerning damage to the exterior elements.

14 In addition to this cautionary approach by the applicant's arborist, we drew to the applicant's specific attention during the course of the site inspection the fact that, on the internal wall of her dwelling at the point where the original fabric attaches to the Victorian era structure, there is obviously evident indications of water penetration shown by the blistering and peeling paint extending considerably above floor level at a location adjacent to the window.

15 On the outside, immediately above the joining of two sections of the dwelling and adjacent to the window mentioned above, is an elbow in a downpipe draining the roof of the newer rear section of the structure to her stormwater disposal system. This elbow has rusted out entirely and the adjacent gutters and the rusted out section of pipe were full of vegetative material that had obviously fallen from the tree.

16 We interpose, in this analysis, that such deposition of material in the gutter and/or downpipe, causing damage to the downpipe, is not a matter of comfort to the applicant in light of our considering the tree dispute principle enunciated in Barker v Kyriakides [2007] NSWLEC 292 here to be applicable, namely that those who have the benefits, both environmental and aesthetic, of trees in urban settings have a concomitant responsibility to undertake ordinary reasonable maintenance to clean up the leaves, small twigs, fruits and nuts and berries and the like falling as detritus from such trees and thus cannot complain about the accumulation of such material causing damage to their property.

17 The rusted out elbow in the gutter is directly above the point where there has been ongoing separation of the old and new portions of the dwelling. It is also immediately above the location where the interior wall shows obvious signs of water damage.

18 Whilst there is a brief description given by the applicant's arborist of the soil types in the vicinity, there is no evidence of what would be the impact of consistent application of water to these soil types and the subsequent drying out, on a cyclical basis following rainfall events, on such soils. It is obvious, however, from the extent of the rotting out of this gutter elbow, that such a cyclical wetting and drying process had been going on for a considerable period of time as the rotting of the gutter could not conceivably, given the extent of its disintegration, have been of recent occurrence.

19 However, the paint blistering and the existence of cyclical wetting and drying processes at this location necessitate a conclusion that the water to soil effects are highly probably a significant (if not the sole) cause of the slab separation.

20 Given the perfect symmetry between the rotted gutter and the damage to the slab/paint blistering and thus the point of attachment of the old and new sections of the dwelling (assuming that there are tree roots from the tree in the vicinity), we are unable to determine to what extent, if any, such tree roots might have contributed to the separation damage. This is to be compared to the obvious significantly potential influence of a rotted gutter caused by a failure of the applicant to undertake proper maintenance of her own property. Indeed, if there were to be roots demonstrated to be present at this point and running along the line of the slab separation, we would also need to consider the likely growth promoting effect of supply of additional water to them from the rotted gutter elbow.

21 It therefore follows that we are unable to accept that there is any basis upon which we could hold the respondent liable, in any measure, for this element of the damage to the applicant's property.

22 With respect to the damage to the original Victorian era structure, in addition to the general concern that would also follow from the wetting and drying cycle to which we have referred above, we also observed (during our internal inspection of the house) rusting of skylight fittings in the stairwell in the older section of the house leading to the upper storey. The cracking of the render of the external capping party wall shown in the applicant's photographs is shown as a long horizontal crack rather than any vertical one in any direction potentially related to roots from the tree. In addition, the cracking of this Victorian era render is not inconsistent with generalised cracking of such render of such an age. The internal cracking is also consistent with movement of the structures from cyclical movements caused by wetting and drying as earlier discussed.

23 As a consequence, with respect to this internal damage, given the age of this element of the building and the failure of maintenance by the applicant as observed earlier means, in our opinion, that we cannot be satisfied that any cracking to the original elements of the structure have been caused by the tree and its root system.

24 Additionally, the fact that there is, at the back of the rear extension, a further downpipe that is rotted to an extent that it is functionally non-existent and is discharging water to the ground in the vicinity of the boundary along which the party wall is located is also a further unexplained potential cause of movement to her house. No matters related to water/soil impacts are considered in the applicant's engineer's report.

25 It therefore follows that the only scope of any orders that we might make concerning compensation must, necessarily, be confined to matters relating to the damage that has been occasioned to the garden bed retaining walls and pavers at the rear of the applicant's property where there is an uncontested causal link with the roots of the tree.

26 However, in this regard, we also note that the applicant has had to have the pavers at her rear door lifted and re-laid in order to enable the rear door leading to the courtyard area to open because the pavers had been catching the bottom of the door when attempts were made to open it. She submitted that this was made necessary as the tree roots, in her opinion, caused this. The applicant seeks an order for reimbursement of this cost.

27 There are two reasons to reject this element of the application. First, no receipt has been provided for this work and thus there is an unqualified claim and claims of such a non-quantified, unverified nature have consistently been refused in proceedings under the Trees Act.

28 However, if that were not sufficient, we consider that the catching of the door could have been occasioned either by the lifting of the pavers or by the tilting backward of the slab resulting from its detachment of the extension of the house from the original built fabric (as such downward tilting at the rear is not inconsistent with the cracking and separation viewed by us during the course the site inspection). Because we cannot be satisfied that dropping of the slab rather than rising of the pavers was not the cause of the obstruction of the door, even had there been a receipted account for this work, we could not have been satisfied that this work was necessitated by action of the tree roots.

Apportionment

29 As Mr Seymour indicated that the respondent does not contest some liability with respect to the damage to the retaining walls and upper rear level pavers and he only pressed matters of apportionment, that leaves matters of apportionment, only, requiring consideration and determination (as we set aside the issue of the tree itself for the reasons later discussed).

30 The positions of the parties on the question of apportionment are starkly different. The position put by the applicant is that the respondent should meet the entirety of the cost of removal of the tree and of such rectification works for which we determined that the applicant should be compensated. Her view is a short and simple one. It is that the tree is the respondent's tree and, as a consequence, the respondent should meet the totality of the removal and compensation costs that would arise from any orders that we might make. She does not concede that there should be any apportionment requiring her to contribute to the costs.

31 Mr Seymour submitted that apportionment was appropriate and that the appropriate approach is to require that each of the parties should bear an equal share of the costs arising from any orders than we might make.

32 As we understood him, he advanced this proposition on a number of separate bases. First, he submitted that, for any elements of damage that arose prior to the coming into effect of the Trees Act in early 2007, the former common law position concerning nuisance should apply. If this were to be the position, he submitted that the applicant had a positive duty to mitigate the damage to her property and that she had failed adequately to do so. He also submitted that it was relevant that for a deal of the relevant periods of time, his client had lived in the United States and was not in a position to undertake direct intervention with the tree but had provided all reasonable assistance to the applicant in enabling the applicant to do so.

33 With respect to the position prior to the commencement of the Trees Act, there is no limitation on the retrospectivity of this legislation with respect to applications made after that commencement. It is clear, with respect to the application of the common law position concerning nuisance, that, for applications made after the commencement of the Trees Act concerning trees to which the Trees Act applies, actions in nuisance are not available (see s 5 of the Trees Act). There is no suggestion in this section or in any other provision of the Trees Act that this extinguishment of the former common law action of nuisance for relevant past tree damage, this being encompassed by the first jurisdictional test in s 10 of the Trees Act, is in any way preserved and available to be pursued for damage caused prior to the commencement of the Trees Act.

34 To the contrary, it is our opinion, consistent with the opinion of Preston CJ set out in Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 at para 218, that for actions for property damage that satisfy the jurisdictional tests of:

• Caused by a type of vegetation encompassed within the statutory definition of a tree in s 4;
• meeting the requirements concerning land use zoning contained in s 4;
• satisfying one of the tree damage related jurisdictional tests contained in s 10(2)(a).

then there is no remaining common law jurisdiction. As His Honour noted in para 219, the Court could not exercise any other residual common law power (of a non-nuisance nature) that might remain. The only basis upon which we exercise jurisdiction is that provided by the Trees Act.

35 The broad order making discretions are those contained in s 9 of the Trees Act, discretions constrained only by the limitations therein that those orders are for the purposes of rectifying, remedying or restraining damage to property or preventing injury to persons. In exercising that discretion, we are required to have regard to relevant ones amongst the broad assessment factors contained in s 12 (including matters relating but not confined to contributing and mitigating factors).

36 The second submission made by Mr Seymour in support of apportionment is in part based on the fact that, over time, there has developed a shared ownership of the tree and that as a consequence, it would be reasonable to have expected the applicant to make efforts to resolve the impact on her property occasioned by a tree of which she has become part owner.

37 Although similar in structure to his earlier submission that there was a common law obligation to take steps to mitigate the damage to the applicant's property, as we understood his argument on this second basis, it is founded on reasonableness rather than obligation.

38 He submitted that it was entirely reasonable to expect, as the respondent was resident in the United States, that the applicant should be (and should be expected to be) the motivating and driving force behind the resolution of the problems caused to the applicant's property by the tree.

39 There are significant difficulties that stand in the path of us accepting these propositions. We are unable to accept Mr Seymour's submissions for the following reasons.

40 As we understood the position from the correspondence between the parties that was tendered by the respondent, the respondent's premises have been tenanted consistently (if not continuously) throughout the period of her residence in the United States. As a necessary consequence, she must have made arrangements for the management of the property such as payment of rates; payment of land tax, if applicable; collection and banking of rents; arrangement of insurances and the like. Whether she undertook these activities, herself, in some remote fashion or whether they were conducted at arm's length by a real estate agent or some other person on her behalf, is not relevant. It was necessary at least to some extent for her to take an active role in the management of the property. She may also have had to make arrangements for the carrying out of repairs to her premises but that is not a matter about which we have any evidence and thus do not, therefore, take into account that possibility

41 We also observe that the respondent attended the proceedings conducted on-site. As we understood the position, she had flown to Australia, with her comparatively recently born infant, for this purpose and, as we also understood the position, proposed to return to the United States shortly after the hearing. This, in our view, clearly demonstrates an ability to respond in an organised fashion to a matter concerning her property that she considered to be of importance.

42 In our opinion, a careful reading of the correspondence that has taken place over a considerable period of time between the parties makes it clear that the respondent is in denial about any possibility of her bearing responsibility for damage that the tree may have caused to the applicant's property. Although, for the reasons we have earlier set out, we are not persuaded that the extent of the damage caused by the roots of the tree is as great as is claimed by the applicant, that position has only emerged at the hearing in these proceedings as there has been no discussion, as we also read the correspondence, of the dilapidated state of the applicant's gutters and alternative possible causation as a result.

43 The correspondence makes it clear that the respondent reacted to the concerns of the applicant in two distinct fashions. These were confined to cooperation with the applicant in the applicant's endeavours to arrange removal of the tree and, second, in a consistent denial that she, the respondent, might bear any liability for damage to the applicant's property. These positions, in our view, in face of the applicant's persistence over many years in seeking to resolve the matter, demonstrate to us that the respondent rather than the applicant has been unreasonable in failing to recognise and react appropriately to the applicant's concerns.

44 This is to be coupled with the fact that the extent to which the tree is now located on the applicant's land is a position that has increased significantly, but we accept not absolutely entirely, over the very lengthy period during which the applicant has endeavoured to resolve these matters of concern. This increased ownership of the tree should be ignored as, had the issues been resolved within a short time of the respondent being made aware of the problems being caused by the roots of her tree, the increased "ownership" would not have occurred. We are thus satisfied that it is appropriate that the respondent should meet the entirety of the cost of any order we might make concerning the tree (after dealing with the matters set out below under the heading "The future of the tree") and the entirety of the cost of the rectification of such damage to the applicant's property as we have found can be regarded as having been caused by the roots of the tree.

The future of the tree

45 As part of our consideration of what, if anything, should be done about the tree, it is inevitable from its location that if there were to be any order for removal of or interference with the tree, it would be likely that access would be required (depending on the nature of the orders that might follow) to some or all of the four properties whose owners are not currently parties to the proceedings and who have not only not had the opportunity to be heard on access but have also not had the opportunity to be heard on whether or not any orders for removal of or interference with the tree should be made at all.

46 Although, pursuant to s 9(2)(g) of the Trees Act, we have power to order access to such properties for the purpose of removal of or interference with the tree, we do not consider it appropriate to contemplate making such an order or giving effect to any written consent from the owners of any of these properties to which access would be required without providing each such owner to be heard not merely on questions of access but also on the broader issue of whether there should be any order made at all for removal of or interference with the tree.

Conclusion

47 We have concluded that the only element of damage to the applicant's property for which we can be appropriately satisfied that the roots of the tree have caused is the damage to the garden bed and low retaining walls and lifted pavers at the rear of the applicant's property. We cannot be satisfied that any structural damage to her house has been caused by the tree nor that the cost of relaying the pavers at the rear door to her property was necessary as a consequence of damage caused by the roots of the tree. We have set out our reasons why any costs should be met by the respondent with no apportionment.

48 We are also satisfied that, under the circumstances, it is not appropriate that we make any orders for removal of or interference with the tree (let alone for mandated access to other properties for these purposes) without providing those property owners with an opportunity to be heard concerning the fate of the tree and any possibly associated access matters.

49 After considerable thought, we have concluded that we should confine ourselves to giving the conclusions we have reached concerning damage to the applications property and give directions as to how the other potentially affected property owners should be given the opportunity to be heard on questions concerning fate of the tree. Although this will necessitate orders pursuant to s 8(2) to give notice to the other landholders and the holding of a further hearing to permit them to be heard on matters concerning the tree and, if we were to order removal of or interference with the tree, issues of access for such purpose.

Directions

50 We therefore give the following directions:

(1) The applicant is to serve, by personal service and by no later than 4.30pm on Wednesday 8 June 2011:

• a copy of this judgment;
• the supplementary hearing notice direction provided with this judgment;
• a copy of her Tree Dispute Application concerning the Lemon-scented Gum ( Corymbia citriodora) located on 87 Shepherd Street, Chippendale;
• her Tree Dispute Claim Details; and
• a copy of the respondent's solicitors' Notice of Appearance

on the owners of 83, 85 and 91 Shepherd Street and 1 Shepherd Lane, Chippendale;

(2) The applicant is to file, by no later than 4.30pm on Thursday 9 June 2011, proof of service of the documents required by (1) on the owners of 83, 85 and 91 Shepherd Street and 1 Shepherd Lane, Chippendale;

(3) Any of the owners of 83, 85 and 91 Shepherd Street and 1 Shepherd Lane, Chippendale who wish to be heard about the matters set out below are to file with the Court and serve on the applicant and the respondent to the application (through the respondent's solicitors, Gadens Lawyers) any material concerning:

• the application for removal of the Lemon-scented Gum ( Corymbia citriodora) located on 87 Shepherd Street, Chippendale;
• whether or not the Court should make any order for removal of or interference with the tree; and
• whether or not access to that person's property should be ordered to give effect to any order for removal of or interference with the tree if such an order were to be made;

(4) The matter is set down for a further on-site hearing at 4.30PM on Thursday 16 June (meeting outside 89 Shepherd Street) for the purpose of hearing from any of the owners of 83, 85 and 91 Shepherd Street and 1 Shepherd Lane, Chippendale who wish to be heard.

Tim Moore

Senior Commissioner

David Galwey

Acting Commissioner of the Court

Decision last updated: 27 May 2011