Land and Environment Court New South Wales

• Medium Neutral Citation: Thornton v Richardson [2012] NSWLEC 1004
• Hearing dates: 12 January 2012
• Decision date: 12 January 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Damage to property; compensation; notice to respondent; contributory factors
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Osborne v Hook [2008] NSWLEC 1231; Collins v Akers [2009] NSWLEC 1010
• Category: Principal judgment
• Parties: Mr R Thornton (Applicant); Mr T Richardson (Respondent)
• Representation: Applicant: Mr R Thornton (Litigant in person); Respondent: Mr T Richardson (Litigant in person)
• File Number(s): 20896 of 2011

Judgment

1 COMMISSIONER: This is an application made under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Loftus against Mr Richardson, the owner of two Jacarandas that were growing on an adjoining property.

2 Mr Thornton, the applicant in these proceedings, seeks orders for the payment of approximately $1430 for the relaying of about 30m 2 of paved driveway that he says has been damaged by roots of one or other of Mr Richardson's trees.

3 At the on-site hearing, Mr Thornton stated that he first observed some lifting of pavers in his front driveway, in the vicinity of the dividing fence between his and Mr Richardson's property some three years ago. He said he did not bring the damage to Mr Richardson's attention at the time, as they were not on especially friendly terms. Mr Thornton also stated that he didn't think the local council had any interest or control over damage to driveways and so he didn't follow it up with council.

4 Mr Thornton said it was not until 2011 that he was informed that the Trees Act was the appropriate means of resolving tree disputes between neighbours. He said he was told that the Act had come into effect in 2010. [While the first cases were heard in early 2007, the Act was reviewed in 2009 and the amendments came into effect in 2010.]

5 On finding out about the Trees Act, on 29 May 2011, Mr Thornton advised Mr Richardson of his damaged driveway and the alleged problem with the trees. He said that he would be making an application to the Court under the Trees Act.

6 Mr Richardson states that two days after he was notified by Mr Thornton he applied to Sutherland Shire Council for permission to remove three trees, the two Jacarandas that were growing in a garden bed on the street frontage, and a eucalypt growing in the front yard. The reason given was presumably the damage to the neighbour's driveway.

7 Permission to remove the Jacarandas was initially refused on 20 June 2011 however, that decision was reviewed on other grounds and approval was given on 23 August 2011. According to Mr Richardson, the trees were removed 10 days later.

8 With respect to the payment of compensation, Mr Richardson considers this to be unreasonable, as he was not given an early opportunity to respond to Mr Thornton's concerns. He also contends that he acted promptly to remove the trees at a cost of $1485.

9 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.

10 Amendments made to the Act in 2010 give the Court jurisdiction to consider damage to property caused by trees that have since been removed. The existence of the trees is uncontested and is verified by photographs included in the application.

11 The damage alleged to be caused by one or other of the Jacarandas is the lifting of pavers in a portion of Mr Thornton's driveway - an area I estimate to be 10-15m 2 at most (significantly less than the area quoted for replacement). At the hearing, Mr Thornton also pointed out a hairline crack in the concrete floor of his garage, further damage he says that has been caused by the trees.

12 In many tree matters, assumptions are made that due to the proximity of a tree to a structure/ paving that may or may not be damaged, that the tree is the cause. Mr Thornton's assumption that the uplift of the pavers is due to roots appears to be based on a statement by one of the contractors he engaged to quote on replacing the driveway. Mr Thornton has not excavated the relevant part of the driveway to confirm his assumptions.

13 In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Craig J discussed the obligation created by s 10 of the Act for the Court to be satisfied of the causal nexus between the tree the subject of an application and the damage claimed by an applicant. This requires an assessment of all the evidence before the Court. This evidence may be factors other than the tree. At [62] Craig J stated

"...something more than a theoretical possibility is required in order to engage the power under [the Trees Act]...In the language of Jenkinson J in MacDonald , 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."

14 In the matter before me, the evidence amounts to a 'bare preponderance of probability' and on that basis the application could be dismissed. However, if I were to put Mr Thornton's application at its highest and accept the assumption that the roots of one or more of the Jacarandas may have contributed to the damage, I would have to consider the matters in s 12 of the Act.

15 Most relevant here is s 12(h)(i) and (ii) - that is, anything other than the tree that may have contributed to the damage, and, the actions of the parties.

16 Mr Thornton purchased his property in 1996 - some 15 years ago, and the driveway was in existence at that time. The driveway is constructed of unit brick pavers. It is clear that other depressions and associated uplift have been caused by the normal use of the driveway, that is, wheel tracks are clearly visible. Therefore some displacement has been caused by factors other that possible tree roots.

17 With respect to the actions of the parties, Mr Thornton knew about the problem for at least three years before bringing it to the attention of Mr Richardson. Once it was brought to his attention, Mr Richardson acted promptly to do something about it. In those three years, the damage has reportedly increased. In that time Mr Thornton took no action to either establish the cause of the uplift or to undertake any repairs. Mr Richardson was denied the opportunity to consider alternative actions or to take early action. Early action may have avoided the costly removal of one or more of the trees.

18 The failure of an applicant to give adequate notice to a respondent has been considered in a number of tree matters including Osborne v Hook [2008] NSWLEC 1231 and Collins v Akers [2009] NSWLEC 1010. In both of those cases, the Court found that the actions of the applicants had denied the respondents to take action, and in both matters compensation was denied as a result. I find that the circumstances of the case now before me are similar.

19 Even if I were satisfied that the evidence of the nexus between the tree and the uplifted pavers, which I am not, a consideration of the discretionary matters in s12 does not support Mr Thornton's position. Therefore on the basis of the forgoing, the Orders of the Court are:

(1) The application is dismissed.

_______________________

J Fakes

Commissioner of the Court

Decision last updated: 16 January 2012