Land and Environment Court New South Wales

• Medium Neutral Citation: Beacher v Arkless [2011] NSWLEC 1320
• Hearing dates: 8 November 2011
• Decision date: 08 November 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application to remove tree dismissed; orders for rectification of fence

• Catchwords: TREES [NEIGHBOURS] damage to property, injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: McLaren v Lewis (No 2) [2011] NSWLEC 176; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Ms L Beacher (Applicant); Mr J and Mrs Y Arkless (Respondents)
• Representation: Applicant: Ms L Beacher (Litigant in person); Respondents: Mr J Arkless (Litigant in person)
• File Number(s): 20674 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 Merewether against the owners of a tree growing on an adjoining property.

2 The applicant is seeking the removal of the tree on the basis that is has caused damage to the metal dividing fence between the parties' properties and will continue to do so. The applicant is seeking orders for the rectification of the fence to be undertaken by the respondents at their expense with the works to be carried out without any access to the applicant's property. In addition, the applicant is concerned about future damage the roots of the tree may cause to the footings of her house and to nearby water pipes. Other concerns go to the risk of injury posed by the failure of the whole tree or the loss of branches from it.

3 In response to the Court's directions enabling the filing of additional material by either party, the applicant filed a claim for costs. The costs are for phone calls for the direction's hearing, loss of income during the on-site hearing, and the filing fees. In this regard, Commissioners do not have the jurisdiction to award such costs and a separate application must be made. It may be of interest for the applicant to note the finding of Preston CJ in McLaren v Lewis (No 2) [2011] NSWLEC 176.

4 The tree is a mature Lillypilly growing in a narrow garden bed between the respondents' driveway and the side boundary fence. The respondents have lived on their property since 1989 and the tree was established when they purchased it. The parties installed the metal fence about 10 years ago.

5 The applicant has owned her property for about 20 years but has not always resided there. A new house was completed in April this year and the applicant has lived in it for the last 6 months.

6 About 12 months ago, during the construction of the applicant's new house, the respondents reduced the height of the tree by about half. At the time of the hearing there were no branches of any significant size touching the fence.

7 The damage is the displacement of one post and the two associated panels - the 6 th and 7 th panels from the rear south-western corner of the fence. The displacement at the post is about 150mm out of alignment with the rest of the fence and in the direction of the applicant's property.

8 On the respondents' side of the fence there is a vertical section of galvanised pipe between the base of the tree and the fence. The pipe is not touching the fence. A trench dug alongside the tree on the applicant's side showed the concrete block into which the galvanised pipe was set. The trench also showed several large diameter roots that had been cut to the boundary line at some stage as well as other smaller diameter roots.

9 It is reasonably assumed by the first respondent that as the tree grows it is putting pressure on the footing of the galvanised pipe which in turn is putting pressure on the fence post, hence the displacement.

10 According to oral evidence, the first respondent had agreed to have one of his employees remove the concrete block and realign the fence; however, that work was to be completed without any access onto the applicant's land. No time limit was discussed between the parties and it appears that the making of the application to the Court put the repair work in abeyance.

11 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. Given that the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in the circumstances. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future.

12 Dealing with each of the elements of the claim, starting with the fence. The fence is displaced but the impact is essentially cosmetic as the fence is still fully functional. However, unless there is some action taken, the displacement will continue and the functionality of the fence may be compromised.

13 From the evidence before me it does appear that if the galvanised pipe and its footing were removed, the fence could be realigned. I do not consider it necessary to remove the tree as the trunk is some distance from the fence, no substantial branches rest on it and several large woody roots beneath the fence have been cut for what appears to be some time.

14 However, in order for the work to be carried out, the two affected panels will need to be removed and the concrete footing accessed and broken up from the applicant's side of the fence. Therefore orders will be made for the respondent to undertake these works and for the applicant to provide access for this to happen. As the adjoining portion of the applicant's land is a narrow side passage leading to a water tank, the fencing works are unlikely to cause any unreasonable disruption to the applicant's use of her property. The concrete can easily be removed through the respondents' property.

15 With respect to potential future damage to the footings of the house and to the water pipes, this is highly unlikely to occur in the near future. The trench along the fence revealed that most roots had been cut and the relatively small remaining roots are unlikely to cause damage to the footings of the new house. Similarly the water pipes, presumably storm water pipes, are PVC and, if they have been installed correctly, they are unlikely to allow ingress of roots should a root eventually come in contact with the pipe.

16 Therefore in regards to the future damage element of the application, there is no evidence to support the realisation of the applicant's concerns in that regard and that element of the application is dismissed.

17 Similarly, with respect to the risk of injury, even with the extent of root pruning that has occurred, the likelihood of the tree falling over and injuring someone is remote. Supporting roots were noted on the respondents' side of the fence; the tree is growing in a sheltered position and therefore unlikely to be destabilised in strong winds. There was no evidence to suggest that any branches of the tree would fall through a window of the applicant's house and injure anyone who may be inside. Similarly, given the tree adjoins a side service passage, the risk of injury to anyone using that space is extremely remote.

18 Therefore on the basis of potential injury to any person, no orders will be made for any intervention with the tree.

19 However, as the jurisdiction has been enlivened with respect to the fence, an order can be made. Section 9 of the Act enables to Court to make any order it thinks fit to remedy, restrain or prevent damage to property as a consequence of the tree subject to the application.

20 Therefore the Orders of the Court are:

(1) The application to remove the tree is dismissed

(2) The respondents or their agents are to remove the galvanised pipe and its concrete footing and to reinstate the alignment of the metal dividing fence. The concrete is to be taken away through the respondents' property.

(3) To enable these works to be carried out in a safe and efficient manner, the applicant is to allow access for this to occur from her property on 3 working days notice. Should the respondents require quotes for this work, the applicant is to provide access for this to happen on two working days notice.

(4) The works are to be completed within 90 days of the date of these orders and at the respondents' cost.

________________________

J Fakes

Commissioner of the Court

Decision last updated: 09 November 2011