Land and Environment Court New South Wales

• Medium Neutral Citation: Huang v Maughan-Cislowski [2011] NSWLEC 1192
• Hearing dates: 11 July 2011
• Decision date: 11 July 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Appeal upheld in part; tree to be removed; part compensation for damage to pathway

• Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; root pruning not practical
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Ms R Huang (Applicant); Ms N Maughan-Cislowski (Respondent)
• Representation: Applicant: Ms R Huang (Litigant in person); Respondent: Ms N Maughan-Cislowski (Litigant in person)
• File Number(s): 20248 of 2011

Judgment

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

1 COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Burwood against the owner of tree growing on an adjoining property.

2 The applicant is seeking orders from the Court for the removal of a Melia azedarach (White Cedar) (the tree) on the basis that it has damaged to her property and the damage poses a risk of injury,

3 The applicant contends that:

the roots of the tree have caused the uplift of a concrete slab that forms part of the pathway along the western side of her dwelling and that the uplift has created a tripping hazard that could result in injury;

the base of the tree has displaced 4 palings of the timber dividing fence between the parties' properties

roots from the tree have caused the cracking of bricks on the north-western corner of the back verandah, and

the branches of the tree could cause future damage to the roof and gutter of her dwelling

4 The applicant is seeking orders for the respondent to pay for the removal of the tree, the replacement of the concrete slab, and the repair of the fence. She is also seeking compensation for the costs associated in the making of the application and an arborist's report. With respect to the last matter, Commissioners do not have the jurisdiction to award costs associated with the making of an application.

5 The respondent does not wish to remove the tree if it can be avoided as she values it for the amenity it affords her property and says she would find the cost of removing it financially challenging.

The hearing and evidence

6 The hearing was conducted on site. The applicant was assisted by her son. The respondent's arborist, Mr Danny Draper gave evidence. Mr Joe Lilley, Tree Management Officer from Burwood Council was also in attendance.

7 The tree and relevant structures were observed from both properties. The tree is growing on the eastern side boundary in the front garden of the respondent's property. The base of the tree abuts the timber dividing fence. The tree was in its deciduous state at the time of the hearing. There was evidence of past pruning but nothing to suggest that the tree is either unhealthy or structurally defective.

8 The tree is assumed to be self-sown and was present when the respondent purchased her property some 18 years ago. It was there when the applicant purchased her property almost 20 years ago. There are several nearby trees in the respondent's garden including a Native Frangipani and a Camphor Laurel.

9 The slab in contention is the most northerly of the slabs that comprise the concrete path along the western side of the applicant's dwelling. Mr Draper's report describes its condition as being "rotated and raised along the fence edge, 36mm at its southern end and 20mm at its northern end". This was confirmed on site.

10 The slabs to the south appeared flat and undamaged. Another concrete path to the northeast appeared level and in relatively good condition.

11 The section of lifted slab adjoins the White Cedar. In Mr Draper's report he discusses the usual distribution of tree roots as described in peer reviewed literature. Based on these assumptions and the proximity of the tree, he concludes that the tree has contributed to the lifting of the slab. In considering the available options for managing the interactions between the tree and the slab, he states that root pruning and the installation of a root barrier are not viable due to the detrimental impacts that would have on the tree's health and stability.

12 With respect to the trip hazard, Mr Draper sought advice on the practicality of grinding the edge of the slabs. He was advised that this would probably result in the cracking of the slab and therefore grinding was not advised.

13 Mr Draper concludes that if the slab is to be replaced, the tree should be removed to ground level and the stump poisoned to prevent suckering and ensure the death of the roots.

14 With regards to the fence, according to the respondent, it has not been replaced in the time that she has owned her property. Whilst there is some minor displacement of the base of several palings close to the tree, I noted other displaced and dislodged palings some distance from the tree.

15 The base of the fence for its length along the pathway is in poor and weathered condition. The condition is consistent with its age and material.

16 I observed a vertical crack from ground level to the floor of the verandah in the brickwork on the north-western corner of the applicant's rear verandah. According to a letter written by the applicant's son to the council dated 1 December 2010, he states that as an engineer, in his opinion the cracking is likely to have been caused by the roots of the tree.

17 I observed no similar cracks in any other part of the verandah. It was noted that there is an African Olive tree, suckering from a relatively large stump, growing on the applicant's land that is also close to this corner. It was also pointed out that another nearby tree on the applicant's property had been removed. The respondent stated that the soil in the area is a reactive clay and undulations in the ground are not uncommon.

18 With respect to the roof and gutter, the branches were well clear of the roof and I was not shown any damage.

Jurisdictional tests and findings

19 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree subject to the application has caused, is causing, or could in the near future cause, damage to the applicant's property, or could cause injury to any person.

20 In this matter I am satisfied by the evidence on site and from Mr Draper's report that the tree has contributed to the damaged/ displaced slab and the displacement is such that it poses a trip hazard and could therefore cause injury. I also accept that the base of the tree has displaced several palings of the dividing fence.

21 Therefore as two of the tests in s 10(2) are met, the Court has jurisdiction to make an order for interference with the tree. However, in considering what orders are appropriate in the circumstances, the Court must consider a number of matters under s 12 of the Act. Relevant in this case are the following clauses:

(a) The tree is wholly located on the respondent's property.

(b) The removal of the tree or its roots would ordinarily require permission from council under its Tree Preservation Order. In this matter, the applicant's son wrote to the council for permission to remove roots of the tree that had grown into the applicant's property. Mr Lilley inspected the tree and subsequently advised the applicant that pruning more that 10% of a tree's root system requires owner's consent. He indicates the extent of root pruning suggested by the applicant could destabilise the tree. He states that council does not arbitrate on tree disputes between neighbours and directs the applicant to the Land & Environment Court and the Trees Act.

(b2) I agree with the council and Mr Draper that in this situation, root pruning is not appropriate because of the likely destabilisation of the tree.

(b3,e) The respondent contends that the tree contributes to the scenic value of her land and provides some privacy between her property and her neighbours. The configuration of the blocks is unusual in that the applicant's back verandah overlooks the respondent's front verandah and front yard. The respondent stated that she regularly holds fund-raising functions in her garden and that the tree is important in contributing to the overall amenity of her property.

(c) Although the respondent's property dates back to 1840, it has no heritage listing. Given the relatively young age of the tree and the accepted assumption that it is self-sown, the tree is of no heritage or other special significance.

(h)(i) The applicant has not carried out any excavations to confirm the effects or otherwise of roots on the corner of the verandah. The soil in the area is a reactive clay that shrinks when dry and expands when wet. The damaged brickwork is on the north-western corner of the dwelling; this aspect is generally considered to lead to greater fluctuations in soil moisture levels and therefore greater fluctuations in soil movement. While the White Cedar is relatively close to this corner so too are other trees, including trees and shrubs on the applicant's property.

(h)(ii) With respect to notification of the problem with the slab to the respondent, the applicant stated she became aware of the problem at least 5 years ago. She contends that she notified the respondent 2 years ago however the respondent states she had no notice of the problem until December 2010. This period coincides with the letter from the applicant's son to the council.

22 In the making of orders, the facts and circumstances of the matter must be considered and balanced. Section 9 of the Act gives the Court a degree of discretion in what orders, if any, it should make including what should be done, when it should be done, and, who should pay.

23 In this matter I am satisfied that the tree has caused damaged to the concrete slab and it can only be satisfactorily replaced if the roots are removed. Given the proximity of the tree to the slab, the only safe way of doing this is to remove the tree.

24 Given that the tree is on the respondent's property, the respondent should pay for its removal. However, in noting that the applicant knew of the problem some 5 years ago and did not notify the respondent, the respondent was denied any action she may have taken at that time to rectify the problem. Therefore the parties should share the cost of removing and replacing the slab, with the respondent's share discounted because of the lack of notification.

25 Despite the fact that the tree has displaced several fence palings, the overall condition of the fence is such that the effect of the tree is negligible and no orders will be made with respect to the fence.

26 Whilst the applicant sought no orders with respect to the wall, the applicant has failed to demonstrate the nexus between the tree and the damaged brick work and the application in that regard is dismissed.

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

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

(2) The application for compensation is upheld in part.

(3) The respondent is to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the tree to ground level and to poison the stump.

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

(5) The tree is to be removed within 120 days of the date of these orders.

(6) Once the tree is removed, the applicant has 30 days to obtain 3 quotes for the replacement of the slab, including the removal of any roots below it. The applicant is to provide the respondent with a copy of the quotes in that time.

(7) In that time, the respondent may choose to obtain her own quotes. In doing this, the applicant is to provide all reasonable access to any tradespeople engaged by the respondent for the purpose of quoting.

(8) The respondent has 7 days from the receipt of the quotes from the applicant and any sought by her to choose a contractor to carry out the work, and to inform the applicant. If this is not done within the 7 days, the applicant chooses the contractor.

(9) The applicant is to engage and pay for the nominated contractor.

(10) The respondent is to reimburse the applicant 25% of the cost of the works within 30 days of the receipt of a tax invoice for the completed works.

(11) The replacement of the slab is to be completed within 90 days of the removal of the tree otherwise order 10 lapses.

_____________________

J Fakes

Commissioner of the Court

Decision last updated: 15 July 2011