Land and Environment Court New South Wales

• Medium Neutral Citation: Low v Muir & Anor [2012] NSWLEC 1092
• Hearing dates: 12 April 2012
• Decision date: 12 April 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1)The respondents are to engage and pay for a suitably qualified (minimum AQF Level 3) arborist, with all appropriate insurance, to remove trees T2 (Hackberry), T5 (Fig), T6 (Hackberry) and T7 (Cassava) to no more than 300mm above ground level. If stumps remain they are to be poisoned immediately.

(2)The works in (1) are to be carried out in accordance with the NSW WorkCover Code of Practice for the Amenity Tree Industry.

(3)The works in (1) are to be completed within 60 days of the date of these orders.

(4)The applicant is to provide any access to her property required for the works in (1) on reasonable notice and at a reasonable time of the day.

(5)Following removal of the trees the parties are to engage a fencing contractor to replace the boundary fence, from the western end where it meets Denison Lane to the point where it meets the applicant's dwelling, with a 1.8 metre tall wooden paling fence or other fence as agreed by the parties.

(6)The works in (5) are to be completed within 90 days of the date of these orders.

(7)The respondents and the applicant are each to pay the fencing contractor 50% of the cost of the works in (5).

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; removal ordered; consent orders; fence.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Dividing Fences Act 1991 No 72
• Cases Cited: Breen & Anor v Caronna & Anor [2008] NSWLEC 293
• Category: Principal judgment
• Parties: Fay Low (Applicant); Alison Muir and William Muir (Respondents)
• Representation: Leone Cohen (Agent for the Applicant); Alison Muir (Respondent in person)
• File Number(s): 20030 of 2012

Judgment

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

1 ACTING COMMISSIONER: Ms Low has lived at her property in Newtown since 1972. In early 2011 repair works were required to sewer pipes on her property. During these works the plumber pointed out that roots were blocking the pipes. Ms Low contends that the roots belong to trees on her neighbours' property. She also contends that roots from the neighbouring trees are cracking and lifting concrete paving in her rear garden. She seeks removal of six trees. Mrs Muir, an owner of the adjoining property on which the trees grow, has lived at her property for more than 15 years. She is concerned about the expense of removing trees. The application is made under the Trees (Disputes Between Neighbours) Act 2006.

2 During the onsite hearing it became apparent that there was no dispute that the trees had caused damage and that both parties shared at least some notions of what might be regarded as a suitable outcome. They were provided with the opportunity to discuss the matter with a view to agreeing to consent orders, which they did. However, as Sheahan J outlined in Breen & Anor v Caronna & Anor [2008] NSWLEC 293 at [6], Commissioners dealing with a tree dispute "certainly can make consent orders to dispose of a tree dispute, but they must first be satisfied of the matters in s 10, and must consider also the matters in s 12, of the Tree Disputes Act." Therefore, according to the Act, I must determine if the trees have caused, are causing, or are likely in the near future to cause, damage to Ms Low's property. Then, if I agree that the proposed orders are ones appropriate "to remedy, restrain or prevent damage to property", I can make those orders.

Trees

3 Ms Low's application includes a brief report on trees by Cath Stuart of Get It Right Landscape Services. Her assessment of five trees (T1-T5) was done from Denison Lane, to the rear of the property. Ms Low submitted that a sixth tree (T6) might cause damage to her property. During the onsite hearing, Mrs Muir was of the opinion that another tree (which we shall call T7) may be causing damage to Ms Low's concrete paving. The seven trees that are to be considered are:

T1: Melaleuca sp. (Paperbark)

T2: Celtis australis (Hackberry)

T3: Jacaranda mimosifolia (Jacaranda)

T4: Celtis australis (Hackberry)

T5: Ficus lyrata (Fiddleleaf Fig)

T6: Celtis australis (Hackberry)

T7: Manihot esculenta (Cassava)

4 The locations of trees T1-T5 are shown on a sketch in the application. All are in Mrs Muir's rear garden. T1 and T5 are close to the fence on the common boundary with Ms Low's property. T2-T4 are a small distance from the fence. T7 is close to T3. The canopies of these trees cover most of Mrs Muir's rear garden and a portion of Ms Low's rear garden. The trees contribute shading and privacy to the property owners and amenity to the neighbourhood. T6 is further to the east, adjacent to Ms Low's dwelling. The dwellings are single-storey terrace-style with small gardens typical of this inner suburb.

5 T1 existed when Mrs Muir moved into the property; the other six trees have self-sown since then. All appear to be healthy. Several grow close to each other - for instance T1 and T5 have stems that are touching.

Damage to pipes

6 Ms Low shares a 'party sewer line' with several properties further to the south. She first became aware of a problem when neighbours to the south had blocked pipes. Using a camera, their plumber found that roots were blocking the pipe within Ms Low's property. The terracotta sewer pipe within Ms Low's property was cracked and filled with roots. The section of sewer line on the property to the south (No 181) was already a PVC pipe. Plumbers cleared the pipe and replaced most of Ms Low's sewer with PVC pipe, although a small section of terracotta probably remains at the southern end. Costs were mostly borne by the neighbours to the south - the application does not include any claim for compensation.

7 Ms Cohen, who lives at number 181, states that during recent investigations a plumber found that roots were beginning to enter the sewer pipe again.

Damage to concrete paving

8 Most of Ms Low's rear garden is covered with concrete. There are several concrete slabs that may be of the same vintage as the dwelling. There are cracks throughout the concrete. Ms Low contends that these are generally due to roots from neighbouring trees. Near T1 and T5 the concrete is cracked more significantly and one slab is lifted several centimetres. Ms Low submits that the cracking has worsened in the last year, especially since the sewer was repaired.

9 Mrs Muir does not dispute that roots from her trees have caused damage to Ms Low's sewer and concrete. She submits that T1 was present for many years without causing damage, so it is more likely that trees that have self-sown more recently have caused damage.

Fence

10 An old wooden paling fence extends along the common boundary from Denison Lane eastward to Ms Low's dwelling, the northern wall of which is on the common boundary. The fence is in a dilapidated state, leans significantly, and is supported by trees T1 and T5. The fence has been displaced by the growth of stems of T1 and T5. Both parties agree that it needs replacement and wish the Court to consider this if any orders are to be made.

Jurisdictional issues

11 Before I can make any orders regarding the trees, I must be satisfied in this matter, according to s 10(2)(a) of the Act, that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property.

12 I accept that roots from Mrs Muir's trees entered the sewer pipe and contributed to damage. However there is no evidence to indicate which tree or trees those roots grew from. It would be unreasonable to remove all trees simply because they might have caused the damage, and, when dealing with the jurisdictional test regarding past damage (as opposed to the risk of future damage), I would not be able to make an order for any individual tree as I cannot be satisfied that it has caused damage.

13 Similarly, there is no evidence identifying which trees have caused general cracking of the concrete slabs, although it is most likely that T1 or T5 has caused the significant cracking and lifting near the base of those trees.

14 With regard to future damage, I am satisfied that any of the seven trees could cause damage in the near future, as a section of terracotta sewer line remains on Ms Low's property and all seven trees could have roots in its proximity. The terracotta pipe may well be in a similar condition to the section that was replaced. If it were so cracked, this would allow roots to enter and cause further damage. Accordingly, the Court can make orders regarding the trees.

15 If I am to make any orders regarding the fence, as enabled by s 13A of the Dividing Fences Act 1991 No 72, I must be satisfied that the fence has been damaged by the trees. Displacement of the fence by stem growth of T1 and T5 meets this test.

Matters to be considered

16 Before determining this application, I am to consider the matters outlined in s 12 of the Act. Those matters I consider relevant to this application are addressed below.

17 Section 12(a). The trees are on the respondents' land, close to the common boundary. T6 is close to the applicant's dwelling.

18 Section 12(b3). The trees contribute to privacy, protection (e.g. shading) and the amenity of the respondents' land.

19 Section 12(h)(i). To an extent, damage to the terracotta pipes and the concrete paving is at least partly caused by the age of these structures.

Conclusions

20 As there is likelihood that any of the neighbouring trees could cause further damage to a section of Ms Low's sewer pipes in the near future, the Court has jurisdiction to make orders. The parties have agreed to consent orders for the removal of four trees (T2, T5, T6 & T7) and replacement of the boundary fence. I agree that the proposed orders are ones appropriate to prevent further damage to property.

21 Mrs Muir concedes that there is some risk of damage to T1, the Paperbark, during the removal of T5, as their stems are in close contact and their crowns intertwine. She is willing to undertake the removal of T1 if it becomes necessary during the removal of T5. However, if possible, T1 will be retained.

Following the removal of T5, the boundary fence is likely to collapse even further. As the trees have caused damage to the fence, the Court is able to make orders regarding the fence. I find the orders agreed to by the parties are appropriate.

Orders

22 The orders of the Court, by consent, are as follows.

(1) The respondents are to engage and pay for a suitably qualified (minimum AQF Level 3) arborist, with all appropriate insurance, to remove trees T2 (Hackberry), T5 (Fig), T6 (Hackberry) and T7 (Cassava) to no more than 300mm above ground level. If stumps remain they are to be poisoned immediately.

(2) The works in (1) are to be carried out in accordance with the WorkCover Code of Practice for the Amenity Tree Industry.

(3) The works in (1) are to be completed within 60 days of the date of these orders.

(4) The applicant is to provide any access to her property required for the works in (1) on reasonable notice and at a reasonable time of the day.

(5) Following removal of the trees the parties are to engage a fencing contractor to replace the boundary fence, from the western end where it meets Denison Lane to the point where it meets the applicant's dwelling, with a 1.8 metre tall wooden paling fence or other fence as agreed by the parties.

(6) The works in (5) are to be completed within 90 days of the date of these orders.

(7) The respondents and the applicant are each to pay the fencing contractor 50% of the cost of the works in (5).

D Galwey

Acting Commissioner of the Court

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Decision last updated: 16 April 2012