Land and Environment Court New South Wales

• Medium Neutral Citation: Milton v Draper [2011] NSWLEC 1337
• Hearing dates: 4 October 2011
• Decision date: 25 November 2011
• Jurisdiction: Class 2
• Before: Hewett AC

Decision

Application to remove six trees upheld; Orders for the removal of six trees and treatment of stumps to prevent regrowth

• Catchwords: TREES [NEIGHBOURS] - damage to property; injury to persons
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: G and D Milton (Applicants); T and S Draper (Respondents)
• Representation: G and D Milton (Applicants in person); T and S Draper (Respondents in person)
• File Number(s): 20508 of 2011

Judgment

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), made by the owners of a property in Actinotus Avenue Caringbah against the owners of an adjoining property in Saunders Bay Road Caringbah. The properties are within the Sutherland local government area.

2 The properties share a common boundary extending along the eastern side of the applicants' land.

3 The applicants seek orders to remove six trees, comprising five Casuarina ( Casuarina glauca ) and one Swamp Paperbark ( Melaleuca quinquenervia ) growing at the rear of the respondents' land and adjacent to the common boundary. The applicants contend that the trees have damaged their driveway by causing pavers to lift, thereby creating numerous trip hazards. They also contend that the trees have, in the past, dropped branches and are concerned that more branches will fall onto their property in the future and may cause injury.

4 Between 1977 and the 1980s, the respondents planted a row of eight seedling native trees about half a metre from the fence on the common boundary with the applicants' land. Two of the trees have been removed and the remaining six are the trees that are the subject of this application.

5 In 1995, the applicants constructed a brick paved driveway along the eastern side boundary of their property. By 2001 it became evident that some of the driveway paving bricks had been displaced allegedly by roots from the row of trees growing on the respondents' land.

6 The applicants discussed the driveway damage with the respondents and then wrote to them enclosing a quotation for the cost of repairs. In 2002, the respondents' insurance company settled the claim by paying the applicants the quoted sum of $1,309.

7 The respondents say that they suggested to the applicants that they (the applicants) install a root barrier along the edge of their driveway paving whilst the driveway repairs were being undertaken. At the site hearing, the respondents said they suggested the root barrier be installed on the applicants' land, because there was insufficient room to cut roots and install the barrier on their own land, as the trees stand less than 0.5 m from the boundary.

8 In 2005, the applicants applied to Sutherland Shire Council for consent to remove the respondents' trees, claiming the trees were undermining their paved driveway. The Council granted consent, subject to the applicants first obtaining the tree owners' consent in writing and the lodgement of the owners' consent with Council, prior to carrying out any work. The tree owners' consent was not subsequently obtained and no work was carried out.

9 In January 2007, the applicants made a new application to Council for consent to prune the roots and install a root barrier. The consent was granted, subject to prior notification of the tree owners that the pruning was to be carried out.

10 In May 2007, the applicants wrote to the respondents enclosing a quotation for $6,600 for the repair of their driveway and the installation of a root barrier of 1 m depth and 16 m length with the barrier to be located on the applicants land.

11 The respondents' insurance company paid the full amount of the quotation, less $100 excess. The root barrier was then installed and the applicants paid the contractor, Urban Green Landscapes, the outstanding amount of $100.

12 In September 2010, the applicants sought another quotation to repair further damage to the driveway that had occurred since installation of the root barrier. They submitted this quotation to the respondents and then submitted a further quotation in April 2011, as a result of a delay in the insurance company's processing of the earlier claim.

13 In May 2011, the respondents' insurance company paid the applicants the full amount of the claim, being $2,432 with no excess to be paid.

14 The respondents submit that the applicants did not install the root barrier in accordance with the installer's recommendations. They say that the applicants instructed the contractor to install the barrier so that the top of the barrier was not visible above the brickwork, as would normally be required, in order to prevent roots from growing over the barrier.

15 The respondents say that they should not be held responsible for the current driveway damage, because the failure of the barrier to prevent root ingress is a consequence of the actions of the applicants.

16 During the on-site hearing I observed the condition of the driveway and noted extensive lifting of brick pavers. The lifting occurred essentially across the width of the driveway and extended along the driveway to the full distance of the six trees. There were no trees other than the respondents' six trees in proximity to the driveway. Many of the pavers were tilted sufficiently to create a tripping hazard.

17 In the course of the hearing a number of pavers were lifted to reveal a mat of fine roots growing directly beneath the pavers.

18 Mr Craig Naylor of Urban Green Landscapes installed the root barrier on the applicants' land and he was present at the on-site hearing. Mr Naylor lifted a section of edge paving bricks to show the method he applied in order to meet the applicants' request to ensure the top of the root barrier was not visible above the brick pavement. As a result of the modified installation, the top of the barrier ceased beneath the brick pavers and was capped with a thin layer of concrete, so that edge pavers could be laid without any need for the root barrier to protrude between and above the brick surface. Mr Naylor agreed that the modification meant that the barrier was not installed in accordance with the manufacturer's specifications.

19 The applicants submit that ongoing payment for the repair of damage is not a solution to the problem and that the only practical solution is to remove the trees.

20 The respondents' evidence included a tree inspection report prepared on 2 September 2011 by Mr Stephen McLoughlin of Treehaven Environscapes.

21 Mr McLoughlin was present at the on-site hearing. He was of the opinion that the root barrier could not have been installed on the respondents land in the first place because the trees were growing too close to the boundary for root cutting to occur without risking tree failure.

22 In his report Mr McLoughlin concluded that excavation for the root barrier installation had been detrimental to the trees and may have destabilised them, as the excavation had occurred within 1 m of the base of each of the trees. He was of the opinion that the excavation represented a major incursion into the trees' structural root systems.

23 Under s 10(2) of the Act, the Court must not make an order under this part, unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicants property, or

(b) is likely to cause injury to any person.

24 At the onsite hearing, I inspected the trees from the applicants' land and from the respondents' land and I observed the numerous uplifted brick driveway pavers. As stated above, the orientation and character of the pavement uplift, relative to the respondents' trees, was evidently a consequence of root development. When bricks were lifted to reveal underlying root matting the parties agreed that roots from the respondents' trees were the cause of the damage.

25 In an exposed section at the edge of the pavement, I observed the manner in which the topmost part of the root barrier had finished beneath the brick surface, rather than flush or slightly above the brick surface. It was evident that roots from the respondents' trees had breached the top of the barrier and proliferated beneath the brick pavement, causing a number of sections along the section of the driveway adjacent to the trees to lift and create numerous tripping points.

26 As a consequence of the foregoing, I am satisfied that all six of the respondents' trees, that is T1-T6 inclusive, have caused and are causing damage to the applicants' property and the Court has jurisdiction and can make orders.

27 The root barrier appears not to have prevented further root damage to the applicants' driveway. The applicants agree that they asked for the top of the root barrier to be hidden rather than exposed through their brick pavement. The contractor provided an alternative means of installation however the barrier has since failed to prevent further root ingress. In order to prevent further driveway damage, either the existing barrier would need to be reinstalled to specification, or a new barrier installed on the respondents' side of the fence, or the trees removed. In view of the fact that the respondents' trees are the cause of the driveway damage, it appears to me entirely unreasonable for the applicants' to bear the inconvenience and burden of the ongoing containment the respondents' tree roots. To reinstall the barrier in-situ would require considerable work and would impose unreasonable inconvenience on the applicants. A barrier cannot be installed on the respondents'' side of the fence without causing the trees to become hazardous in which case the trees would have to be removed and thus there would be no need for the barrier.

28 As a consequence, the only reasonable and practical option under the circumstances is to remove the six trees.

29 Before the Court can make a determination, it must consider matters under s 12 of the Act. The relevant matters in this case are:

(b3) although they were originally planted to create a visual screen between the properties, the screening function has largely ceased as the trees have matured and their lower branches have been pruned leaving clean trunks. As a consequence the trees make very little contribution to privacy.

(d) the trees are native species (although planted) and as such they do contribute to the local ecosystem and to biodiversity.

(e) the trees make a small contribution to the scenic value of the land on which they are situated and to the overall locality.

26 As a consequence of the forgoing, the orders of the Court are:

(1) The application to remove the six trees is upheld.

(2) The respondents are to arrange and pay for the removal and stump treatment (per (3)) of the five Casuarina trees and one Paperbark tree identified in the Tree Dispute Claim Details, as trees T1 to T6 inclusive. The trees are to be cut so that the remaining stump of each tree is not more than 150 mm above grade.

(3) Immediately on completion of the tree removals, the stumps are to be treated with a suitable registered chemical to prevent any further shoot or root growth.

(4) The work in (2) and (3) is to be undertaken by an arborist with a qualification in arboriculture of at least AQF level 3 and who has the necessary insurances for the full extent of the work to be undertaken.

(5) The work in (2) and (3) is to be completed within 60 days of the date of these orders.

(6) The minimum standard for the safe execution of the works in (2) and (3) is to be the WorkCover Amenity Tree Industry code of practice and the Control of Workplace Hazardous Substances code of practice under the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulation 2001.

Philip Hewett

Acting Commissioner of the Court

Decision last updated: 25 November 2011