Land and Environment Court New South Wales

• Medium Neutral Citation: McGroder v Michels [2011] NSWLEC 1222
• Hearing dates: 3 August 2011
• Decision date: 03 August 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
• Category: Principal judgment
• Parties: Mrs L McGroder (Applicant); Mr E Michels (Respondent)
• Representation: Mrs L McGroder (Applicant in person); Mr T Xenos, Solicitor (Respondent); Timothy Xenos Bayside Solicitors
• File Number(s): 20304 of 2011

Judgment

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

1 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 Sandringham against the owner of trees that were growing on an adjoining property.

2 The applicant seeks Court orders for the following:

• Removal of 14 Cypress trees
• Replacement of a metal fence (quotation: $1200)
• Repair or replacement, to her satisfaction, of any other damage deemed to be caused to her property, for example, the front brick wall (quote for these works: $3800)
• All costs of the action including fees and out of pocket expenses to be paid by the respondent.

3 These orders are sought on the basis that the trees have caused damage to the dividing fence and to the front brick wall.

4 Since the making of the application, the respondent has removed the trees, poisoned the stumps twice, and made good the metal fence.

5 With respect to the order sought for costs, Commissioners do not have the jurisdiction to award such costs.

6 The hearing was held on site and both properties were inspected. The stumps of the trees remain. The trees were planted about 15 years ago in a narrow garden bed between the respondent's driveway and the dividing fence between the parties' properties. A similar row of trees was planted on the other side of the driveway but these too have been removed.

7 The stumps of the trees in question remain. I note that the Court has jurisdiction to hear matters under Part 2 of the Act even if a tree has been fully removed.

8 The applicant contends that roots from one or more of the trees has caused a horizontal crack in the mortar between the fourth and fifth courses of bricks of a portion of front wall on the north-western frontage of her property. This wall is located between a masonry pillar on the corner of the respondent's driveway and the applicant's garage. The wall supports a gate to a side passage. Apart from the crack, the wall is slightly displaced off vertical near the top of the wall. The applicant's dwelling and associated garage and front walls are 13 years old.

9 The applicant's driveway and side passage were paved in stencilled concrete about 5 years ago. No cracking or lifting of the pathway between the fence and the side of the garage was observed (this being the area closest to the trees). The respondent's 40 year old masonry pier beside the wall and close to the end tree showed no signs of damage.

10 Other cracks were observed in other parts of the applicant's dwelling and garage including parts of those structures well away from the trees. The end of the front wall on the north-eastern side of the garage was also showing displacement off its vertical alignment.

11 The observations made at the on-site hearing are consistent with those of Mr Carl Le Breton, a building inspector from Tyrrells Property Inspections, engaged by the respondent after he had removed the trees. That report, and the respondent's affidavit refer to recent civil works in the street outside the parties' properties. Those works involved trenching for the upgrading of a gas line. Photographs taken by the respondent at the time show a portion of the trench near the wall in question. The colour copies of the photographs shown on site clearly show only very fine roots in the trench in the vicinity of the wall. The origin of the roots is unknown. Mr Le Breton concludes at [5.5] of his report: " Based on my investigations, I consider it unlikely the trees (or their removal) along the Michel driveway have affected the Ida St property ".

12 Photographs tendered by the applicant show the panels of the metal fence to be bowed and displaced between the posts. This appears to be consistent with pressure from the foliage of the trees pressing on the metal panels. This observation was confirmed by Mr Peter Alland, Tree Management Officer from Rockdale City Council who attended the hearing and who had also inspected the trees prior to their removal.

13 Mr Alland, on behalf of the council, gave permission for the trees to be removed. In a letter to the applicant, Mr Alland states, in part, that the trees " are damaging the dividing fence and may be the cause of the damage to the rendered brick wall..." . On site, Mr Alland was questioned as to whether he had carried out any excavation or any other investigation to confirm his opinion that the trees may have caused the damage to the wall and he said that he had not. He stated that he had only said that the roots might have caused the damage. From what was said at the hearing, it would seem that the applicant took this unsubstantiated opinion to be fact and has not undertaken any investigation of her own to identify the cause of the cracked wall. The applicant also seemed to be of the opinion that the Court would undertake its own investigation.

14 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. Section 9 of the Act gives the Court a degree of discretion in the orders it may make if any of the jurisdictional tests in s 10(2) are met.

15 In this matter, the trees have been removed to stumps and the fence has been reinstated. Given that the stumps have been poisoned and are therefore unlikely to cause damage in the near future, the application to remove the trees, in this case, the stumps, is dismissed.

16 Putting the applicant's case at its highest with respect to the damage to the fence and allowing the displacement of the fence by the foliage to satisfy the "have caused" test in s 10(2), as a matter of discretion afforded by s 9, I am not minded to make any orders for replacement of the fence. The fence has been reinstated and appears to be fully functional albeit with the normal signs of wear and tear that one would expect in a 13 year old fence. Therefore the element of the application concerning the replacement of the fence is dismissed.

17 With respect to the brick wall, the applicant has not proved the nexus between the damage and any of the trees. The level of proof that the Court requires is considered by Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62] where he relevantly says:

62 As the respondents submitted, something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes Between Neighbours) Act to make an order to remedy, restrain or prevent damage as a consequence of a tree. In the language of Jenkinson J in McDonald , confidence on a "bare preponderance of probability" has not been engendered on the evidence adduced that the Sydney Blue Gum was a cause of damage to the applicants' dwelling. Embracing the language of the applicants' submission, I have not been left in a state of belief, on the balance of probabilities, that the tree is a cause of that damage.

18 And so it is with the matter before the Court; I have not "been left in a state of belief, on the balance of probabilities", that any of the trees that were growing on the respondent's land have caused the damage to the applicant's front wall. This finding is supported by the absence any damage or displacement of nearby paving and the masonry pier and by other similar damage to the applicant's property well away from the trees. Therefore, this element of the application is dismissed.

19 Therefore as a consequence of the forgoing, the Orders of the Court are:

(1) The application in its entirety is dismissed.

J Fakes

Commissioner of the Court

Decision last updated: 03 August 2011