Land and Environment Court New South Wales

• Medium Neutral Citation: Freeman v Dillon [2012] NSWLEC 1057
• Hearing dates: 14 February 2012
• Decision date: 15 March 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application to remove trees upheld in part; applicant to pay the cost of removal and replacement of ten trees

• Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; consequences of damage caused by the applicant; pre-existing condition of a dwelling
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Robson v Leischke [2008] NSWLEC 152; Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420; Shagrin v O'Neil [2010] NSWLEC 1368; Yang v Scerri [2007] NSWLEC 592; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; Liang & anor v Marsh & anor [2011] NSWLEC 1026; Barker v Kyriakides [2007] NSWLEC 292; Horn & anor v Latter [2007] NSWLEC 744; Joaquim v Adamson [2009] NSWLEC 1312
• Category: Principal judgment
• Parties: Ms W Freeman (Applicant); Mr H and Mrs J Dillon (Respondents)
• Representation: Applicant: Ms W Freeman (Litigant in person); Respondents: Mr T Cork (Solicitor); Respondents: McPhee Kelshaw
• File Number(s): 20875 of 2011

Judgment

1 COMMISSIONER: In 2009, Ms Freeman purchased a property towards the western edge of Katoomba. The adjoining property, owned by Mr and Mrs Dillon, contains a number of established trees including a row of several species of conifers along their southern boundary. The Dillons purchased their property in 1990 and have resided there ever since. The majority of the trees were well established when they arrived; it is thought that a number of the trees are at least 43 years old.

2 Ms Freeman has applied to the Court, under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act), for orders against 44 of the trees closest to her northern boundary. The orders sought are (in summary):

(1) Immediate removal of 13 Radiata Pine trees (T1- T13);

(2) Immediate removal of any trees which are already touching or are within centimetres of the wooden fence (T14-T44);

(3) Permission for a root barrier to be put in place along the entire common]boundary and within the applicant's property;

(4) Pruning of live branches and removal of dead wood from 20 trees;

(5) Maintenance to start and continue on 11 recently planted trees;

(6) Checks to be put in place to prevent the future planting on the respondents' land of potentially large-growing trees within 5m of the applicant's property;

(7) Advice to be provided to the respondents with regard to planting future trees in any position along the common boundary;

(8) That the respondents bear the felling and stump removal costs of trees that the Court decides should be removed.

3 Ms Freeman contends that the following damage has been caused to her property by one or more of the trees:

• Cracking and displacement of the concrete driveway/ apron in front of the garage and associated problems with the closing of the garage door [roots];
• Cracked and broken roof tiles [falling branches];
• Blocked gutters [leaves];
• Blocked stormwater pipes [roots];
• Pressure on/ damage to a timber fence [trunks and branches];
• Cracking of the external wall of the dwelling/ garage [roots];
• Damage to the internal walls of a laundry/ toilet [roots]; and
• Damage to the drainage of the back garden and to the water table [roots].

4 She is also concerned about future damage to the concrete apron, roof tiles, drainage, water table, walls of the dwelling, and both a timber and a wire fence.

5 The orders are also sought to prevent injury that might include head injury from falling branches, tripping and slipping hazards posed by encroaching and protruding roots, and injury caused by the collapse of the timber fence due to the pressure of the trees.

6 Ms Freeman also contends that in the event of a bushfire in the area all of the trees are likely to cause damage to the house and property, as well as potential injury. Whilst no formal orders are sought for compensation, the application claim form, at questions 14 and 15, states that Ms Freeman would seek up to $500,000 from the Dillons in the event of a bushfire and resulting house damage caused by the neighbouring pines and excessive undergrowth. In this regard, I informed Ms Freeman that it is beyond the Court's jurisdiction to contemplate any orders for future compensation [see Robson v Leischke [2008] NSWLEC 152 at [217]].

7 The Dillons have proposed alternative orders which in summary are that the respondents will organise and pay for the removal of ten trees, identified as T2 - T11 - Pinus radiata in the report of their arborist, Mr Lang. The applicant is to provide reasonable access for the works. Ms Freeman is to reimburse the Dillons the full cost of the removals, and their replacement with a species recommended by Mr Lang, within 14 days of a receipt for the completed works.

8 The Dillons contend that these alternative orders are appropriate due to damage to the structural root systems of the nominated trees caused by Ms Freeman's installation of a new storm water system. The trees are now considered to be at a high risk of wind-throw from stronger, more frequently prevailing westerly and south-westerly winds. The Dillon dwelling is the likely target zone should they fail.

Jurisdictional matters and preliminary findings

9 Before proceeding to deal with the details of the trees and the alleged damage, it is important to clarify the Court's jurisdiction and the assessment framework under Part 2 of the Trees Act.

Property must be on the applicant's land

10 Section 7 - Application to Court by affected land owner - states:

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land , or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

11 Of relevance in this section is that the property, that has been or could be damaged by a tree on adjoining land, must be on the applicant's land. This has been considered in Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420 and Shagrin v O'Neil [2010] NSWLEC 1368.

12 In this matter, Ms Freeman seeks orders for the intervention with a number of trees on the basis that they have caused, or could cause, damage to a timber fence that runs close to the common boundary. I am satisfied that the timber fence in question is entirely on the Dillon property and therefore it is beyond the Court's jurisdiction to make any orders in relation to that fence. It was agreed on site that a low wire fence more accurately indicates the common boundary.

Section 10(2) and the extent to which the Court must be satisfied

13 Under s 10(2) of the Act, the Court must not make an order under Part 2 unless it is satisfied that any of the trees 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.

14 If any of the tests in s 10(2) are satisfied for any or all of the trees, the Court's jurisdiction is enlivened and the Court may make any order it thinks fit in accordance with s 9 of the Act. There is no requirement to make the orders either of the parties seek. The Court must satisfy itself, on the evidence presented, as to what orders, if any, are appropriate.

15 In this matter, the Court must be satsified that each of the trees subject to the application is at least a cause of the alleged damage/ potential injury (see Preston CJ in Robson v Leischke [2008] NSWLEC 152 at [179]). In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [38] Craig J discusses the obligation created by s 10 for the Court to be satisfied of the causal nexus between any tree the subject of an application and the damage claimed by an applicant. He says in part:

...That will require an assessment of the totality of the evidence adduced before me. When considering that evidence, it will, nonetheless, require "a preponderance of probability" that the causal nexus exists. Anything less would not be tantamount to the satisfaction required by the section....

Further, at [62] Craig J states " something more than a theoretical possibility is required in order to engage the power under [the Trees Act] in order to remedy, restrain or prevent damage as a consequence of a tree.."

16 In essence, these are the parameters within which I must consider the application before me.

Future damage or injury

17 As Ms Freeman 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 risk must be reasonably foreseeable and be based on the evidence available at the time of the hearing.

18 There are 12 "new" trees identified in Ms Freeman's application (T's 24, 25,27, 29, 31, 33, 34a, 35, 38, 40,42 and 44). These trees have been inter-planted between established older trees and are quite small and suppressed. It is my assessment that these trees will not, in the near future, cause damage to Ms Freeman's property and will not, in the foreseeable future, cause injury to any person. Therefore, the application in regards to these trees is dismissed.

The hearing and the evidence

The trees

19 The on-site hearing commenced with an inspection of the trees in contention. Mr Lang, the respondents' arborist was on site to assist the Court. The trees were tagged and numbered according to Mr Lang's report; while this differed slightly from Ms Freeman's numbering system, it was nonetheless helpful. The main difference arises from the omission in Mr Lang's report of Ms Freeman's Tree 2 (T2) - a smallish Thuja sp. The other matter corrected by way of notification and confirmed on site was the species of T1; this tree is a Cupressus macrocarpa (Cypress) and not a Pinus radiata .

20 T1 is the most westerly Cypress in a row of Cypress extending from the street frontage to close to the corner of the Dillon dwelling. It has been pruned on its southern side; apart from the damage Ms Freeman contends its roots have caused to her driveway, she is concerned its asymmetrical canopy may make it unstable in a wind.

21 T2 is a relatively small Thuja sp. One branch rests on the timber fence. As the fence is not on the applicant's property, any orders sought in regards to this tree are dismissed.

22 The remaining trees to be considered are mature Pinus radiata planted in a staggered row along the roughly southern boundary of the Dillon property. I generally concur with the detailed assessment of the trees in the 'Tree Survey Schedule' in Mr Lang's report; in summary, the trees are essentially in good health, and prior to the installation of a storm water drain on Ms Freeman's property, there were no obvious or significant structural defects in any of the trees. The canopies of trees 3-8 partly overhang the garage and laundry on the northern side of the Freeman dwelling. The canopies of the trees planted closest to the common boundary partly overhang Ms Freeman's backyard. A number of the trees are growing away from Ms Freeman's property and their canopies are wholly inside the Dillon property.

The driveway and the garage wall

23 Ms Freeman contends that the roots from T1 have caused the cracking and displacement of the concrete driveway apron in front of the garage. This, she says, has led to problems with opening and closing the garage door. She is also concerned about a crack in the brickwork at the top of the northern wall of the garage.

24 In support of her contentions, she relies on the reports of two experts she engaged to assess the damage. Mr Mark Hartley, a consulting arborist, prepared a report dated 22 February 2010. [An amended version of this report, dated 13 December 2011, was tendered at the hearing; the amendment includes an acknowledgment of the Expert Witness Code of Conduct, Mr Hartley's CV and a new first paragraph. Oddly, the first paragraph states that he visited the site on 20 th March 2010 and he prepared 'notes' on that report on 4 th May 2010. This is not consistent with the date of the original report written as 22 February 2010.]

25 The other expert report was prepared by Mr Kym Lukeman, presumably a structural engineer, of K.R. Lukeman & Associates. Mr Lukeman's report is dated 23 April 2010 regarding an inspection undertaken on 18 March 2010. Mr Lukeman's report was apparently sought on Mr Hartley's advice. The application also includes an 'updated' report from Mr Lukeman dated 8 August 2011. This report is substantially (I estimate > 95%) the same as the 2010 report but includes a reference to the timber fence and includes one extra photograph of a crack in eaves and architrave in the rear external corner of the toilet.

26 Mr Hartley concludes that the driveway slab in the vicinity of the garage door has been lifted; he says that "In the absence of any other logical explanation it seems reasonable to conclude that this pressure has arisen from pressure applied by tree roots." Mr Hartley then goes on to discuss the pressures that may be exerted by tree roots as well as the formation of wound wood on roots in contact with concrete and the additional damage that may cause. He opines:

Now that the damage to the driveway has started it will continue to worsen each year with the damage accelerating fasted [sic] in the period of spring to early summer. Cutting of the offending roots is unlikely to cause any significant impact on the health of the trees and will certainly not impact on the stability of the trees.

27 In regards to the crack in the brickwork, Mr Hartley states:

Careful examination of the wall revealed a crack that had started to develop at the top of the wall and was moving downwards. This is caused by lifting at some point near the crack or slumping at either end. If the soil has high load bearing capacities then lifting is the more likely option.

Mr Hartley goes on to consider that based on how he understands the garage floor to be constructed, he considers it unlikely for a tree to cause damage to the structure of the garage,

...in part because it would be unlikely for the tree to develop sufficient root surface area required to reach the modus of rupture. In this instance a number of trees are present and it may be conceivable for the combined root mass of these trees to result in damage to the wall.

28 Mr Hartley recommends that a structural engineer be engaged

... to determine the load bearing capacity of the soils and the modus of rupture of the wall. Based on these two items the engineer should determine the area of roots required under the footing (exerting a pressure of 860kpa) that would be required to exert this force. In addition the engineer should determine if the soil would adequately support the load exerted by these roots. Based on the results of these calculations further examination may be appropriate to map the roots.

29 I note that Mr Hartley's report does not include an introduction as to the scope of the report nor does it include a method statement as to how he came to his conclusions. There is nothing in his report to say that he excavated and uncovered roots. At the hearing Ms Freeman was asked if Mr Hartley carried out any excavations and she said that he did not.

30 Mr Lukeman's report notes the cracks in the driveway in front of the garage, the lifting of the slab at the garage door by about 30mm, a hairline vertical crack in the northern side wall of the garage, and a hairline vertical crack beside the vent in the side wall of the garage. His report includes photographs of the damage. Mr Lukeman notes the presence of the adjoining trees and concludes that the damage has been caused by the trees. He cites a CSIRO information sheet that recommends that single trees should be kept away from footings by a distance equal to their mature height, which in this case he says, is approximately 15m. He then recommends that any tree within 4m [2010 report] or 5m [2011 report] of the garage should be removed, that the concrete driveway slab be demolished and replaced, and the repair of cracked brickwork.

31 Again, Ms Freeman was questioned as to whether Mr Lukeman undertook any excavations or any other tests recommended in the Hartley report and she said that he did not. There is certainly nothing in Mr Lukeman's report to indicate that he did anything but record and take photographs of the damage. There is no comment in Mr Lukeman's report as to the feasibility of the process suggested by Mr Hartley.

32 On 30 November Mr John Lang, a consulting arborist engaged by the Dillons, investigated Ms Freeman's concerns about the damage to the driveway and the garage wall. In the presence of Ms Freeman, Mr Howard Daniels, a licenced plumber, and Mr Paul Brasier, the respondents' solicitor, Mr Lang excavated by hand, a narrow trench along the northern side of the garage slab and the northern and southern edges of the driveway apron. Photographs of the trenches are included in his report and in Ms Freeman's additional material (exhibit C).

33 The trenching revealed that two roots of about 50mm diameter had reached the concrete slab footing and then tracked west along the edge of the slab. Only one root under 50mm was found on the northern side of the driveway apron and this tracked along the edge. The depth of the excavation was limited to 300mm by what appeared to be parent rock. At the hearing Mr Lang stated that he used a metal probe to further investigate the soil depth but found it to be around the 300mm depth elsewhere in the immediate vicinity.

34 In carrying out his investigations, Mr Lang partially excavated around sections of the new storm water pipes. He says 300mm was also the depth at which the new pipes had been installed; the depth limited by a continuous iron stone layer. He also noted that all roots between the northern edge of the trench and the northern edge of the garage and most of the driveway apron had been severed. His plan shows the centre of the pipe to the wall to be about 700mm.

35 On the basis of his excavations, Mr Lang concludes that the claims of tree root damage to the driveway apron and the walls of the garage could not be supported. In regards to the hairline crack in the brick wall, Mr Lang's carefully drawn plans show the crack to be equidistant between two vents with two coach bolts through the wall equidistant from the vents but makes no conclusions as to their impact. He also opines that the north-eastern corner of the slab may have subsided as the wall is out of plumb however, this is perhaps beyond his expertise as an arborist, although the reasons for this opinion are given.

36 Also in evidence is the pre-purchase building inspection report obtained by Ms Freeman and her husband in June 2009. Relevantly, the report notes the following issues with the garage: brickwork in good condition, slight movement and weathering is evident to some mortar joints; tilt door appears in need of repairs; Paving [ location not specified] - concrete appears to be fair and reasonable; slight cracks and movement is evident to several sections; this is due to shrinkage and settlement.

37 At the hearing I observed the hairline crack in the wall and the cracked and lifted driveway apron. Mr Lang's plans show the position of the cracks. I saw no expansion joints in the slab; the slab is in excess of 30m 2 . It was assumed at the hearing that the slab is probably the same age as Ms Freeman's dwelling, approximately 31 years old (extrapolated from the pre-purchase inspection report).

Submissions - driveway and garage

38 Notwithstanding Mr Lang's oral and written evidence, Ms Freeman still contends that roots from the trees have grown under the driveway. She also relies on the reports and opinions of her experts.

39 Mr Cork, the Dillon's solicitor, contends that Mr Lang's evidence should be preferred over Mr Hartley's because: Mr Hartley did not carry out any excavations and in that way did not establish the facts on which his opinion was based; Mr Hartley stepped outside of his area of expertise with his opinions as to other possible causes of the cracking of the wall. Similarly, Mr Cork, submits that neither Mr Hartley's nor Mr Lukeman's reports satisfy the requirements of what is expected of an expert report. He cites the findings of Heydon JA in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 at [85]:

85 In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).

Findings - damage to the driveway and garage

40 On the evidence before me, in particular the photographs and details in Mr Lang's report, I am not satisfied to the level required by s 10(2) of the Act that roots from T1, or any other tree on the Dillon property, have caused damage to Ms Freeman's garage or driveway. Future damage is unlikely given the extent of the excavation for the new storm water pipes. I am satisfied that the problem with the garage door pre-existed her purchase of the property and there is no evidence it has been caused by tree roots.

41 Neither of Ms Freeman's experts undertook any investigations to support their opinions. With respect to Mr Hartley's report, it appears to me that it would have been much simpler and more straight forward to excavate a trench and look for any roots than his suggested course of action for the engineer, particularly as the results would most likely require verification by 'root mapping'. Mr Lukeman's report is of no assistance to the Court as it merely catalogues the damage and makes a general reference to a CSIRO information sheet that is not included in the report.

42 Therefore as none of the tests in s 10(2) are satisfied, the elements of the application relating to the driveway, garage door and external wall of the garage are dismissed.

The garage roof

43 Ms Freeman contends that branches from overhanging and associated trees (T3,4,7,9,11,12,13) have fallen onto the garage roof and broken tiles. She is concerned that this will continue to happen.

44 An undated letter/report from Mr Mike Cattell, a builder, was tendered as part of Ms Freeman's supplementary material (exhibit D). It appears to have been sought in response to the directions given at the preliminary hearing. Assuming this is the case, there is no acknowledgment of the Expert Witness Code of Conduct, no any description of the purpose of the report, no details as to when the builder carried out emergency works to the roof, and no information as to what the builder did at that time. In these respects it does not meet any of the requirements for an expert report and could be rejected. However, in giving Ms Freeman the benefit of the doubt, the report will be considered.

45 The builder states that at some unspecified time he visited the site to rectify " emergency water entry to roof cavity ". He said he explained to the home owner [person not named] that " serious consideration needs to be paid to the removal of the boundary trees ". In his opinion, the trees " have been planted far to [sic] close together and have been allowed to grow out of residential control " causing problems such as [as written] " severe length of root system has invaded dwelling alongside [property not identified]; severe dryness to the surrounding ground; a large amount of (widow makers) dead branches are attached at height; as trees are shading each other they are stressing from lack of sun to each side of canopy causing more dead wood to show ". Mr Cattell makes other assertions as to what the root balls of the trees are doing to the slab of the house. He goes on to state: "

The work continually needed to house 99 is from falling dead wood causing broken tiles

Water entry

Broken timber battens

Torn sarking etc

And potential; termite invasion from cracking in the slab

It is in my view that these trees need to be removed within the immediate future.

46 The pre-purchase building inspection report for Ms Freeman's property, obtained by the Dillons, describes the condition of, amongst other things, the garage. Relevantly it states:

Double garage has been provided under the main roofline and appears to be in a fair and reasonable condition. Roof timbers appear to be adequate. Slight sag is evident to some roof timbers. Gyprock ceiling sheets appear to be in poor condition. Water damage is evident. Ceiling sheets will need to be replaced. Broken roof tiles will need to be replaced as soon as possible...

In relation to the other part of the 'Roof Covering' elsewhere on the house, the report notes:

Terra cotta tiles appear to be in need of attention. There is evidence of water penetration to the roof area. Cracks are evident in the cement bedding and pointing. This is due to natural shrinkage of timbers and material. Repairs will need to be carried out. Several broken, chipped and cracked tiles are evident to the roof and will need to be replaced as soon as possible. Flashing appears to be fair and reasonable. Repairs will need to be carried out.

The report also covers 'Gutters':

Colourbond aluminium gutters appear to be in fair and reasonable condition. Several joins need to be sealed. Gutters will need to be realigned as water is lying in several places. Leaves and debris will need to be removed from gutters for even flow of water to downpipes. Paint finish appears to be of a good standard.

47 During the hearing Ms Freeman stated that she had engaged contractors to replace tiles on a number of occasions. An invoice dated 10/2/10 for, amongst other things, re-pointing of ridge caps and replacement of broken tiles is included in Ms Freeman's supplementary material (exhibit D). The invoice does not specify which part of the roof was repaired and it does not mention anything about possible causes of damage.

48 Mr Cork contends that apart from the invoice mentioned above, Ms Freeman has not produced any evidence to demonstrate that the tiles have been repaired since early 2010. He submits that the damage occurred prior to Ms Freeman's ownership and there is no evidence of any nexus between the trees and the damage. Mr Cork argues that Mr Cattell does not state how he reached his conclusions and that his opinions are beyond his area of expertise.

Findings - garage roof

49 On the evidence before me, I am not satisfied that any tiles have been damaged by any of the respondents' trees in the period during which Ms Freeman has owned her property. The pre-purchase inspection report clearly indicates that there were broken tiles on various parts of the roof and that repairs needed to be carried out. It can be reasonably construed that the invoice of 10/2/10 was for works to rectify some of the problems identified in the pre-purchase report. I agree with Mr Cork that there is no evidence to indicate that any damage has arisen since, and further, no evidence that fallen branches have caused any damage.

50 In Liang & anor v Marsh & anor [2011] NSWLEC 1026 a similar issue arose as to how much damage had occurred during the period of the applicants' ownership of the property. At [32]-[34] I noted:

32 An important question to be asked is how much damage to what is now the applicants' property has been caused by the tree in the time they have owned the property.

33 The test requires the damage to be damage caused to the applicant's property whilst owned by the applicant. I am not satisfied from the evidence that the applicants have proved on the balance of probability (that being the relevant test), that the displacement of the fence and the retaining wall and the damage to the tiles have happened in that brief time. It is more likely that the majority of the damage occurred when the property did not belong to the applicants and the property was in that condition when the applicants purchased it.

34 It is reasonable for me to assume that the applicants paid 'market value' for their property. Such a sale requires a willing buyer and a willing seller with both parties fully aware of all factors that affect the value of the property. This is a case of caveat emptor or let the buyer beware. In this case, the tiles are highly likely to have been already cracked, the fence was already displaced, the retaining wall post was already leaning and the Blue Gum was clearly well established. At best, 1/12 of the damage to the retaining wall and the fence has occurred during the time the property has been owned by the applicants.

51 In the matter before me now, there is no evidence of any new damage. The only evidence of any damage to the roof is in the pre-purchase inspection report. However, that report does not make any assumptions as to the cause of the damage. There is no mention of branches lying on the roof.

52 The mere proximity of trees to a structure or the fact that branches may overhang a structure, are not in themselves reasons to assume that the trees have caused the damage. There is nothing in Mr Lang's or Mr Hartley's reports to indicate that branches are likely to fall onto the roof and cause damage in the future. I saw nothing that would lead me to conclude that any of the trees are likely, in the near future, to cause damage to the garage roof. Mr Cattell's report can be given no weight; it is undated, does not identify the owner or the relevant property, the author is not an arborist, and the opinions are unsubstantiated.

53 Therefore as s 10(2) is not satisfied for the garage roof, no orders will be made for any intervention with any of the trees on this basis.

Blocked gutters/ leaf litter

54 The applicant raised the issue of blocked gutters during the hearing. The application makes no specific claim about the damage however Mr Lukeman concludes in his report:

Additionally, pine needles have blocked the gutters and downpipes caused overflow water damage to the building. It is also considered that the build up of pine needles on the roof and along the side wall is a fire hazard to the building.

55 Apart from internal damage to the laundry and toilet walls (see below - alleged root damage), no evidence of any water damage was produced. As previously stated, Mr Lukeman's report is of little value as his opinions are not substantiated and he does not specify where he saw the alleged water damage. I also note the comments in the pre-purchase inspection report included in [46] of this judgment. In this regard Ms Freeman was clearly advised that leaves were in the gutters and needed to be removed to ensure proper functioning of the downpipes. Ms Freeman said that when she purchased the property she knew there would be leaves and so on falling from the trees but she did not realise there would be so many. Mr Lukeman's 2010 and 2011 reports recommend clearing the debris from the gutters.

56 As no damage has been proven, no orders can be made on the basis of leaf drop. However if I am wrong on this, on a discretionary basis I would make no orders for any interference with the trees on this basis. The Court has published a Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 that considers for those who live in urban leafy environments and who enjoy the environmental and aesthetic benefits that trees provide, the shedding of leaves, fruit, small elements of dead wood and so on would not ordinarily lead the Court to order any interference with the tree on that basis. It goes on to say that regular external housekeeping is to be expected. I see no reason in these circuimstance to depart from this principle.

Internal damage to laundry/toilet

57 One of Ms Freeman's contentions is that roots from T5 and T6 have encroached onto her property and have caused and are causing damage to the external wall of her dwelling and internally to the adjoining laundry and toilet. This part of the dwelling is to the west of the garage on the northern side of the building. The external wall of the laundry is contiguous with that of the garage. Photographs 33,35 and 36 in exhibit C show internal walls in very poor condition. Photograph 34 shows some fine roots on A4 paper however the caption is very unclear as to where the roots were located.

58 The Lukeman report catalogues and photographically records: " a 1mm diagonal crack in the rear corner of the toilet; a 2mm wide diagonal crack in the rear corner of the toilet and a separated cornice; water damage in the toilet caused by blocked and overflowing gutters; cornice is cracked, there is a 2mm wide diagonal crack over rear door in the laundry, and the brickwork has dropped over the door; eaves and architraves cracked in the rear external corner of the toilet". There is no mention of roots being seen. Mr Lukeman concludes that all of the damage is the result of the adjacent pine trees.

59 The pre-purchase building inspection report notes the following condition of the laundry. There is no mention of roots or anything connected to the adjoining trees.

Laundry: Fixtures and fittings appear to be in poor condition. Floor tiles appear to be laid and graded to floor waste. No apparent movement was evident in the floor tiles. Severe water seepage evident to wall. This appears to have been caused by downpipe leaking. Repairs will need to be carried out.

60 As before, there is nothing to prove the nexus between T5 and T6, or indeed any of the trees, and the damaged wall. Therefore, as s 10(2) is not satisfied, no orders will be made and this element of the application is dismissed.

Stormwater drainage/ damage to the water table

61 There are two elements to this issue. The first is alleged blockage of existing terracotta storm water pipes at the front of Ms Freeman's property by the roots of T1. The other is generally referred to in the application as "stormwater drainage". My understanding of this is what Ms Freeman considers to be excessive run-off as a result of the presence of tree roots in her property. The latter is also assumed to relate to what Ms Freeman says is potential damage to the water table.

62 Dealing with the blocked pipes first; the supplementary material contains a report from Mr Howard Daniels, a plumber. Mr Daniels states that on 12 February 2010 he spent several hours removing tree root blockages from the storm water pipe near the northern boundary and several metres away from trees on the Dillon property. From the site inspection, it is understood that these pipes run from near the front of the garage to the street. He states that the drains are/were terracotta with rubber rings. He recommends replacing them with PVC and, if possible, removing the trees and poisoning the stumps

63 The other issue relates to what Ms Freeman describes as excessive runoff. She contends that "invading roots" from the trees have somehow affected the drainage and this will worsen with increasing root growth. This is also presumably the cause of what she says is future damage to the water table.

64 She states in the application that during times of heavy rainfall, water builds up at the back wall of her dwelling. In order to deal with this her husband has dug a series of trenches to speed water movement towards the front of the property. In doing this, she says he had to cut through numerous lateral roots in order to achieve a clear passageway for the water. In addition, in November 2011, Ms Freeman engaged Josh the Plumber to install a new drainage system that picks up water from the backyard and connects it to the existing storm water system on the northern side near the garage. This involved the use of an excavator to dig down to a depth of about 300mm for the full length of the northern side of the garage/ laundry between the wall and the dividing fence. The trench extends into the rear garden (a length estimated by Mr Lang to be about 15m) and diagonally part way across it. The plumber states that the excavator was required because of the presence of a thick mass of roots. Photographs tendered by Ms Freeman (exhibit B) clearly show the extent of the trenches and the size of the roots severed during the trenching.

65 Mr Lang partially excavated around sections of the recently installed stormwater pipe. In his report he notes that the 100mm pipe is approximately 130mm below soil level and 700 mm to the north of the garage wall. Iron stone parent rock was found at about 300mm depth. Probing with a metal rod along the pipe indicated that the rock layer is continuous at about that level. [In regards to the soil depth, I drew the parties attention to the shallow soil and exposed underlying rock on the nature strip outside the parties' properties.]

66 The plan in Mr Lang's report indicates the northern edge of the trench to be within about 1.5m of the base of several trees. Photographs in the report show a pile of woody roots that were removed from the trench; these range in diameter from about 70mm to 120mm. The site inspection at the hearing confirmed the diameter of a number of severed woody roots.

67 Mr Lang concludes that the excavation for the installation of the new pipe has severed primary structural roots of trees 3,4,5,6,8,10 and 12 [using Ms Freeman's numbering system]. In his opinion, this has two main consequences - compromised stability and a potential for pathogen entry. The root loss is on the side of the commonly prevailing winds; this could predispose the trees to wind throw which could have a domino effect on other trees, particularly trees 7,9,and 11. He concludes that trees 3-12 now pose an unacceptably high hazard to both parties' properties.

68 Wind rose diagrams in the respondents' bundle of evidence (exhibit 1) - at 9.00 am and 3.00 pm for Katoomba and Mt Boyce, show the most frequent and strongest prevailing winds are from the west; the next strongest at Katoomba are from the northwest and then from the southeast.

69 In Mr Dillon's statement (exhibit 3), he says that in the 21-22 years that he and his wife have resided at their property, he not observed any discernable destabilisation of the trees or the loss of any significant branches from the trees, including during especially strong winds between 3 and 14 July 2011. He states that during this time a number of trees in nearby properties were uprooted, including two on Ms Freeman's property.

70 Mr Cork submits, on the basis of Ms Freeman's actions in installing the new drainage system and in the light of Mr Lang's report, that the otherwise healthy trees T3 to T12 [trees 2 to 11 in Mr Lang's report] have been rendered unstable and should be removed immediately. Mr Cork contends that pursuant to s 12(h)(i) and s 12(i)(i) of the Act, the Court must take into account the actions of the parties. He cites two cases - Horn & anor v Latter [2007] NSWLEC 744 at [10] and [17] and Joaquim v Adamson [2009] NSWLEC 1312 at [77-79], [99] and [112], where the applicants were found to be responsible for the causing the risk of damage or injury. In both cases the applicants were ordered to bear the costs of the removal of the trees. He submits that this should apply to Ms Freeman and she should pay for the cost of removal of the trees and the cost of their replacement.

Findings - stormwater/ watertable

71 With respect to the matter of the blocked terracotta storm water pipes cleared by Mr Daniels, I note that these pipes were cleared in early 2010, not long after Ms Freeman purchased the property. It seems reasonable to assume that given the reported extent of the blockage and the nature of the pipes that they are likely to have been blocked before Ms Freeman purchased the property. However, it is also reasonable to assume that some root growth within the pipes is likely to have occurred during her period of ownership. The nearest trees are those on the Dillon property however, it is impossible to tell from the evidence before me that the roots came from T1. Confirmation would require analysis and comparison of DNA samples from the roots removed from the drain and the trees along the boundary. However, I am satisfied that roots from a tree or trees growing on the Dillon property have caused damage to those pipes and therefore s 10(2) is satisfied in that regard.

72 In installing the new storm water system, Ms Freeman has taken the matter into her own hands. The remedy she now seeks is the removal of T1. In determining what, if any orders should be made for that tree, I must consider relevant matters under s 12 of the Act. Relevant here is the fact that the original pipes were/ are terracotta with rubber rings. These are more vulnerable to root incursion than PVC pipes. The Court has heard many matters involving terracotta pipes, and in matters where compensation is sought, the amount payable by the tree owner is generally discounted because of the vulnerability of the pipes. No compensation is sought for the cleaning or replacement of the section of old pipes, rather, the removal of T1.

73 As stated above, it is not possible at this stage to have any certainty that the roots of T1 have caused the blockage. I consider the removal of that tree to be disproportionate and unreasonable in the circumstances. Therefore I am not minded to make the orders Ms Freeman seeks and as a matter of discretion, that element of the application is dismissed.

74 In regards to Ms Freeman's contention that "invading" roots from the respondents' property into her backyard have somehow contributed to excessive run-off has not been proven. I am very unclear as to how this could arise, particularly as roots take up water. It is accepted that there has been heavy rain in recent years. It is also clear from the site inspection, and the evidence of Mr Lang, that the soil is shallow. A combination of high rainfall and shallow soil means that the soil becomes saturated and the excess water that the soil cannot absorb runs off. Ms Freeman's back yard slopes sightly towards the dwelling. I also note that when questioned, Ms Freeman could not explain how the trees could cause future damage to the water table.

75 I find that there is no evidence to support Ms Freeman's contentions that the Dillon's trees have somehow caused the run-off problems or will cause future damage to the water table, and those aspects of the application are dismissed.

76 However, because of Ms Freeman's concerns about run-off she organised for the installation of a new storm water drainage system. There is uncontested evidence that the installation involved the use of an excavator, this pulled up and damaged many large woody roots from the adjoining trees. I agree with the evidence of Mr Lang that these roots were structural and supporting roots on the side of the trees most often loaded by strong, prevailing winds; I agree that their removal has compromised the stability of trees 3-12. While the structural roots of the seven trees closest to the trench have been directly damaged, I agree with his conclusions that the removal of those trees necessitates the removal of the three trees that those trees would protect from the prevailing winds.

77 I also accept Mr Cork's submissions, that for the actions of Ms Freeman, the trees were in good condition and their stability was not in issue. Further, in the light of previous findings, no orders would have been made for any interference with these trees. In the making of orders, the Court must consider a number of matters under s 12 of the Act, relevant here is s 12(h)((i) and (i)(i) - ...any act or omission by the applicant. In the cases cited by Mr Cork, that is Horn v Latter and Joaquim v Adamson , the Court found that the applicants in these matters had deliberately poisoned the trees in question. While I don't consider Ms Freeman to have deliberately set out to damage the trees, her actions have resulted in a potentially dangerous situation, particularly for the Dillons. Whether Ms Freeman took Mr Hartley's comments about the removal of roots near the garage (see [26] in this judgment) to apply to the drain is unknown but it appears that no specific arboricultural advice was sought on the consequences of installing the new storm water system.

78 In effect, Ms Freeman's actions have generally achieved her wish to have the trees removed however in the circumstances, I find that Ms Freeman should pay for the removal of trees 3-12. Given the trees provide the respondents with the benefits of wind protection, privacy, and visual amenity, and they did not want the trees removed, I will also make orders for Ms Freeman to contribute to the cost of the replacement of the trees with advanced specimens. The trees also comprise part of the streetscape and form part of the overall landscape character of the area and as such have intrinsic value to public amenity.

Risk of injury

79 Ms Freeman contends that encroaching roots create slipping and tripping hazards along the northern portion of the backyard. Some small to moderate surface roots were observed including the cut end of a large structural root in the vicinity of the new stormwater drain. A number of the roots towards the western end of the garden were probably from the property to the west of the Dillon property. The vast majority of the roots were found within one or two metres of the common boundary.

80 It is fair to say that Ms Freeman's backyard is not a manicured lawn and garden. The surface was relatively roughly mown and uneven with surface rocks and other lumps and bumps that could similarly cause someone to trip if they weren't watching where they were walking.

81 Ms Freeman seeks the installation of a root barrier along her northern boundary to prevent roots entering her property and thus prevent tripping hazards or damage to her property. To do so would destabilise the remaining large trees and, on the evidence, is not justified. Therefore, I am not satisfied that in the context of the overall site, the relatively few surface roots pose such a risk of injury sufficient to engage the Court's jurisdiction and this element of the application is dismissed.

82 Ms Freeman also contends that there is a risk of possible head injury from overhead branches and falling deadwood. Again, on the evidence, I am not satisfied that this is likely in the foreseeable future and no orders will be made for any intervention with the trees on this basis.

83 There is another concern that the expanding trunks of the trees may push on the timber fence and cause it to collapse on someone in her property. The likelihood of this happening is extremely remote and not something that would happen without warning. Therefore, no orders will be made in this regard.

Bushfire risks

84 Ms Freeman claims that in the event of a bushfire, the trees and the leaf litter pose a risk to her property and anyone on it. In her application she refers to information published after the ACT fires in relation to ember attack and Pinus radiata as well as newspaper articles on the more recent Victorian fires.

85 Ms Freeman also contacted the local office of the NSW Rural Fire Service. A letter from the RFS dated 1 December 2011 acknowledges receipt of a bushfire hazard complaint. The RFS subsequently wrote to Mrs Dillon on 10 January 2012 and stated that a complaint had been received but an inspection of the property by one of their officers determined that " the land does not present a significant bush fire threat at this point in time". The recommendation was to continue their program of cyclical maintenance, something the Dillons say they do.

86 Despite this concern and the evidence, I am not satisfied that general bushfire risk posed by trees is within the jurisdiction of the Court under the Trees Act. A tree in itself does not start a fire...a person lights a fire, lightning strike, sparks from machinery etc may start a fire. However, if a bushfire damaged the trees and caused part or all of the tree to fail and cause damage to an applicant's property or injury to any person, then this may engage a consideration of s 12(h)(i) and s12 (i)(i), that is "anything, other than the tree, that has contributed, or is contributing, to any such damage/ injury or likelihood of damage/ injury". As discussed by Preston CJ in Robson at [210] this: " would also allow consideration of extraordinary natural events, acts of God, and their contribution to the damage or the likelihood of damage to property or the likelihood of injury to any person". As no injury or damage has occurred as a result of a bushfire affected tree, this element of the application is dismissed.

Conclusions and orders

87 As discussed in paragraph [15] of this judgment, the Court must be satisfied 'on the preponderance of probability', based on the available evidence, of the nexus between any tree the subject of an application and actual or potential damage or injury. The evidence in this matter is that Ms Freeman purchased a property with many pre-existing problems of which she was made aware, the trees were clearly well-established when she purchased her property, trenching revealed no proof of root incursion sufficient to cause damage to her property or injury to anyone, and there is no evidence to link damage or injury to overhanging branches. The only clear evidence is that the installation of the new stormwater drainage system has caused significant damage to the structural roots of seven trees. This damage has sufficiently compromised the stability of these trees and three others to the point where removal is the only prudent option. As this damage was caused by the applicant it would be unreasonable to order the respondents to pay for the work. I propose to adopt the majority of the respondents' proposed alternative conditions. On the basis of the site view, access for the works is likely to be required through the applicant's property.

88 Therefore, on the basis of the forgoing, the Orders of the Court are:

(1) The application to remove trees is upheld in part.

(2) By 30 June 2012, trees T2 to T11 in the report of Mr John Lang dated 23 February 2012 are to be removed and the stumps ground to not less than 300 mm below existing ground level. The work is to be carried out by an AQF level 3 arborist, with a minimum of $10M public liability insurance, and other appropriate insurance, and in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry .

(3) Within 30 days of the date of these orders, the parties are to obtain one or two quotes for the work in order 2 and the quotes are to be exchanged. Within that time frame, the parties are to agree on a choice of contractor; if no agreement is reached, the cheapest quote is to be selected by the respondents.

(4) The respondents are to engage and pay for the selected contractor.

(5) The applicant is required to provide all necessary access for the works to be carried out in and a safe and efficient manner on five working days (verbal and written/email) notice. Reasonable allowances are to be made for inclement weather.

(6) The applicant is to reimburse the respondents the full cost of the work in order 2 within 21 days of a tax receipt for the completed works.

(7) The applicant is to reimburse the respondents up to a maximum of $1000.00 for the replacement of the ten removed trees within 21 days of a tax invoice for the supply of the replacement plants. The choice of species is at the discretion of the respondents.

_______________________

J Fakes

Commissioner of the Court

Decision last updated: 15 March 2012