Land and Environment Court
New South Wales

Medium Neutral Citation:

Knox v Love (No 3) [2012] NSWLEC 1158

Hearing dates:

23 March 2012 and 9 May 2012

Decision date:

09 May 2012

Jurisdiction:

Class 2

Before:

Dixon C
Galwey AC

Decision:

The Court Orders:

1. The appeal is upheld in part.

(1) The respondents are to engage and pay for a qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the Oak tree to ground level within 30 days of the date of these Orders. The works are to be carried out in accordance with AS 4373-2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(2) The respondents are to engage and pay for the arborist or another suitable contractor to cut or grind that part of the Oak's stump and root buttress against the boundary to provide 100mm clearance between the stump and the boundary fence including the top 200mm of the stone retaining wall, taking all care to avoid damage to the fence and wall. These works are to be completed within 30 days of the date of these Orders.

(3) The respondents are to provide the applicant with at least two days' notice of the works in (1) and (2) and the applicant is to provide all reasonable access during reasonable hours for the works in (1) and (2) to be completed.

(4) The applicant is to cut and remove all roots on his property necessary to allow sewer repair works to be carried out. Sewer repair works are to be completed within 60 days of the date of these Orders.

2. Proposed Orders 2 and 3 are dismissed.

Catchwords:

TREES [NEIGHBOURS]; Removal of Oak tree - damage to retaining wall - Obstruction of sewer pipes - Compensation

Legislation Cited:

Dividing Fences Act 1991
Dividing Fences and Other Legislation Amendment Bill 2008
Interpretation Act 1987
Trees (Disputes Between Neighbours) Act 2006

Category:

Principal judgment

Parties:

Alasdair Knox, Jacqueline Knox (Applicants)

John Love, Beverley Love (Respondents)

Representation:

Alasdair Knox (Litigant in person)

John Love (Litigant in person)

File Number(s):

21112 of 2011

Judgment

Introduction

1This application was lodged by Mr and Mrs Knox under the Trees (Disputes Between Neighbours) Act 2006 on 24 November 2011. They seek the following Orders:

(1)Removal of the English Oak located near the eastern boundary of 40 Greendale Ave Pymble by the respondents at the respondents' cost within 30 days of the grant of the Order or severing of sufficient roots to permit the replacement of the concrete paving and the first sewer pipe.

(2)The applicants be permitted to reinstate the second sewer pipe within 38 Greendale Ave Pymble at the respondents' cost (in addition to the first sewer pipe to which Knox v Love (No2) [2011] NSWLEC 1277 relates).

(3)The respondents properly support the stormwater tank with a properly constructed retaining wall within 40 Greendale Ave Pymble and remove the soil built up within 40 Greendale Ave Pymble supported by the timber fence to below the invert of the timber fence and reinstate the damaged fence within 30 days of the grant of the Order.

2It is their second attempt to have the Oak tree removed from their neighbours' land. In order for the Court to have jurisdiction it must be satisfied that the circumstances of the tree have changed since the earlier application which was resolved by the Court's decision in Knox V Love (No 2) [2011] NSWLEC 1277.

3The applicants, who bear the onus of proving the change of circumstances, submit that when they excavated the location of the roots to be cut to satisfy Orders 1 and 2 in Knox v Love (No 2) additional Oak tree roots were found obstructing an additional sewer pipe. They contend that the discovery of these additional roots and sewer pipe means that the Court's Orders in Knox v Love (No 2) are insufficient to allow the replacement of the applicants' two sewer lines.

4These new facts were apparent when the Court viewed the applicants' property on 23 March 2012. The Court accepts it has jurisdiction to determine this second application by Mr and Mrs Knox.

5Having been satisfied of that fact, the Court dealt with proposed Order 1 at the onsite hearing on 23 March 2012 and made Orders for the removal of the Oak tree. Proposed Orders 2 and 3 were dealt with in Court on 9 May 2012. This judgment deals with both hearings.

Onsite hearing 23 March 2012

6At the onsite hearing on 23 March the Court observed that the applicants had undertaken the works as ordered in Knox v Love (No2) [2011] NSWLEC 1277. However, in carrying out those works, further roots of the Oak tree were exposed. Photographic evidence was provided and today we inspected those roots.

7We observed a network of woody roots, many 50-100 mm in diameter, radiates outwards from the base of the Oak tree's stem, spreading over and around the applicants' terracotta sewer pipes.

8It has become apparent that there are two sewer pipes - the one described in earlier evidence, apparently only servicing the kitchen, and a deeper pipe, also terracotta and slightly closer to the fence, servicing the remainder of the house.

9Earlier evidence had shown a couple of roots in contact with one sewer pipe. It is now evident that there are numerous woody roots in contact with two sewer pipes. Three conclusions have been drawn from this, and the Court accepts all three. Firstly, the extent of woody root growth in contact with the pipes has caused damage to those pipes. Secondly, for the applicants to replace the pipes in an efficient and inexpensive manner, the tree roots would have to be cut and removed. And thirdly, cutting so many large woody roots so close to the tree (some would need to be cut less than one metre from the base of the tree) would not only adversely affect the tree's health and life expectancy, but also result in a real risk of root plate failure, which would result in the entire tree falling.

10Tree roots have caused damage by expanding in girth against the pipes. They are not the sole cause. The age and condition of the pipes must be considered, not only because they may have been somewhat deteriorated regardless of the tree, but also because their condition may have directly encouraged roots to grow against them. Ageing terracotta pipes are often found to have leaks through small cracks or at joints that no longer seal due to movement or deterioration of materials. As they leak, they cause adjacent soil moisture levels to increase. Small roots and root hairs in that soil will divide more, grow more and function more efficiently than roots in drier soils. Over time, their division and growth leads to a network of woody roots as was seen at the applicants' property. The Court accepts that the Oak's roots have caused damage (by contributing to the damage) but we do not accept that they are the sole cause. However, this enlivens the Court's jurisdiction in regard to the Oak tree.

11The respondents argue that reinstatement of the sewer could be done without severing more roots. They presented brochures from companies that provide services such as sleeving or lining cracked pipes, and others from companies that provide boring services for utilities. The applicant has sought his own advice regarding such alternatives. He presented evidence, which we accept, that these alternatives are unreasonably expensive and that sleeving or lining the existing pipes would not be a long-term solution due to their severely damaged and displaced condition. The Court always considers the benefits and value of the tree when ordering any works. In this case, the tree owners' benefit from tree retention is limited by the Oak's declining condition and its shortened life expectancy, described in both an arborist report and Council's tree removal permit. We therefore consider that the increased financial burden on the applicant of alternative sewer repair methods is not justified.

12Looking at the extent of root growth around the sewer pipes, it is quite possible that severing all of these roots could result in a loss of half of the Oak tree's total root mass. Roots have flourished here due to the favourable conditions. It is unlikely that such a dense network of roots would be found on the other side of the tree, beneath the Loves' driveway. Cutting all of these roots would cause a decline in the tree's condition, which is less than fully healthy at present, and further shorten its life expectancy. The arborist report also notes the tree's Structural Root Zone. Cutting all the roots on one side of the tree within this distance, as is required, would put the tree at risk of total tree failure during winds.

13The tree has grown on the Loves' land and, while there may be a buttress root spreading slightly across the boundary at ground level, the base of the stem appears to be 99% on their land and the Oak is their tree. The cost of tree removal will lie with the respondent.

14The tree is adjacent to the fence along the common boundary. When removing the tree, arborists will need to take all care not to damage the fence.

15The applicants expressed their willingness to cut and remove roots on their land. They do not seek Orders for the respondents to undertake or pay for those works. We consider it appropriate to include Orders that reflect this.

16Based on the issues described above, we find that removal of the tree is now necessary to facilitate the reinstatement of the applicants' sewer pipes. They have lived with a poorly operating sewage system for some time now and the works should be carried out promptly. Therefore the Court ordered:

17After dealing with proposed Order 1 the applicants asked the Court to inspect the subject matter of proposed Orders 2 and 3: the water tank on the respondents' land adjacent to the common boundary and the soil built up against the length of the common boundary fence and retaining wall. At the inspection, however, the Court asked the applicants how it had jurisdiction to deal with those matters under the Trees Act and the applicants advised that they relied upon s 13A of the Dividing Fences Act 1991.

18At that point the proceedings were adjourned to a Court hearing so that the applicants' submissions about jurisdiction could be dealt with. The further hearing date was fixed after the date ordered for the removal of the tree.

Resumed Court hearing on 9 May 2012

19At the resumed hearing on 9 May 2012 the Court was informed that the respondents had removed the Oak tree in compliance with the Court's Orders issued onsite on 23 March 2012.

20According to their evidence, the respondents had engaged a qualified arborist to remove the Oak tree and grind the Oak's stump and root buttress to the ground level on their property with a 100 mm clearance between the stump and the boundary fence. Four (4) photographs of the ground tree stump taken by Mr Love on 16 April 2012 were tendered (exhibit 1). The respondents told the Court that the work had been carried out by an arborist in accordance with AS4373-2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. It was also explained that because of the topography of the land the arborist/contractor's stump grinder was only able to grind the Oak's stump and root buttress to provide a 100 mm clearance between the stump and the fence to a level less than the top 200 mm of the stone retaining wall on the applicants' land.

21This was unacceptable to the applicants. They want the removal of the entire Oak stump and root buttress protruding through the base of the fence above the retaining wall on their land. The applicants contend it is necessary to remove the entire Oak stump and root buttress on their land to allow the reinstatement of their retaining wall.

22After a consideration of the photographs and the evidence and the submissions of the parties, the Court determined that it was satisfied that the respondents had complied with the Orders issued on 23 March 2012 having regard to the topography of the land, particularly the difference in levels between the properties. It does not agree with the applicants' interpretation of the Court's Orders for the removal and grinding of the Oak tree stump and root buttress. The Court is of the opinion that it is open to the applicants to remove any remaining Oak root or root buttress on his land in order to reinstate the seven stones of their retaining wall.

23As far as the Court is concerned, the removal of the Oak tree resolves the applicants' concern about displacement of the stones in its retaining wall. As the Court's transcript in Knox v Love (No 2) on 16 September 2011 records, the payment of $5,000 by the respondents to the applicants was intended to cover all damage caused by the Oak tree to the fence, retaining wall, sewer and paving. Any works to reinstate the retaining wall, including cutting of any roots on the applicant's land, is a matter for the applicants.

24After resolution of proposed Order 1, the Court turned to proposed Order 2. However, Mr Knox told the Court that the sewer had been reinstated and that he did not press proposed Order (2) of the application dated 24 November 2011. Accordingly, with his consent, proposed Order 2 was dismissed.

25With respect to the proposed Order 3 to carry out works to support the stormwater tank on the respondents' land and remove "the soil build up within no 40 Greendale" supported by the fence and sandstone retaining wall along the entire common boundary we do not accept that we have jurisdiction to deal with these matters in the circumstances of this case.

26Ultimately, Mr Knox conceded that he agreed that the Court did not have jurisdiction to deal with the water tank at the rear of the respondents' land. So the Order in respect of the water tank and that part of the application was dismissed. However, he did press his Order for the removal of the soil built up along the common boundary fence, which he said is moving the fence and he wants reinstatement of the entire fence and retaining wall along the common boundary. Relying on s13 A of the Dividing Fences Act 1991 he said that the Court had power to order the works in proposed Order 3.

27The section states:

Jurisdiction of Land and Environment Court

13A Jurisdiction of Land and Environment Court

(1) The Land and Environment Court has jurisdiction to hear and determine matters arising under this Act in proceedings to which this section applies.

(2) This section only applies if:

(a) application for the exercise of the jurisdiction is made in relation to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced but not determined, and

(b) the tree that is the subject of those proceedings:

(i) has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or

(ii) is part of a dividing fence and 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.

(3) The Land and Environment Court may, of its own motion or on an application by a party to an application under this Act that is before the Local Court or a local land board, transfer the application that is pending in the Local Court or in a local land board to the Land and Environment Court if:

(a) the application is relevant to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced in the Land and Environment Court but have not been determined, and

(b) the tree that is the subject of those proceedings:

(i) has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or

(ii) is part of a dividing fence and 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, and

(c) the Land and Environment Court is satisfied that there is sufficient reason for the application under this Act to be heard and determined by the Land and Environment Court.

(4) An application that is transferred to the Land and Environment Court under subsection (3) is to be continued in the Land and Environment Court and determined by the Land and Environment Court as part of the related proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006.

(5) For the purposes of any proceedings to which this section applies, a reference to the Local Court in this Act (except sections 13 (2), (3) and (4) and 19 (2) and (3)) is taken to include a reference to the Land and Environment Court.

28Section 13A provides the Court with the jurisdiction to make Orders for the entirety of dividing fences that may be damaged by trees subject to the Trees Act and which meet the jurisdictional test in s10 (2) in the Act. This amendment to extend the legislation to the Court was introduced in the Dividing Fences and Other Legislation Amendment Bill 2008 and the amendment came into force in July 2010.

29There is no evidence in this application that the Oak tree has caused damage to the full length of the dividing fence or the retaining wall (other than the area which has been dealt with in Knox v Love (No 2). The only area of the retaining wall displaced by the tree is that area within the immediate area of the Oak tree, which has now been removed. It concerns seven (7) sandstones and the Court has already made Orders to allow the reinstatement of this part of the retaining wall and compensation to the applicants to cover the cost of reinstatement. The respondents' land sits higher than the applicants' land and the build up of soil along the fence appears to be a consequence of the different levels between the properties. Damage to the fence caused by the tree is minor and would not necessarily require the Court to make orders for the repair of that section. The applicants' submission is that the fence has been damaged mostly by build-up of soil and an improperly supported water tank.

30The Trees (Disputes Between Neighbours) Act 2006 concerns damage caused by a tree (s 10(2)) and where the tree has caused damage to a fence s10 (2) provides that the Court may make Orders under the Trees Act and s13A of the Dividing Fences Act 1991. The making of Orders under s9 of the Trees Act requires a consideration of relevant matters in s12. Most relevant is 12(h)(i) - anything other than the tree that is contributing or has contributed to the damage. After a consideration of s 13A of the Dividing Fences Act 1991 and the facts of this case we are not satisfied that there is sufficient reason for these matters to be dealt with under the Trees Act to be heard and determined by the Land and Environment Court. The fence is an old timber-paling fence in a reasonable state of repair. Any Orders in respect of the build up of soil against the fence or retaining wall are based on the evidence before us outside the Court's jurisdiction on the facts of this case. In this matter the age of the fence and the timber palings would appear to contribute to its current condition. The Trees Act does not cover the soil built against the fence having moved down the slope in the circumstances of this case. We therefore decline to make Order 3.

31At the conclusion of the hearing, the applicants told the Court and the respondents that they did not seek any further monetary compensation from their neighbours in respect of damage caused by the tree to their property. Furthermore, they indicated that they believed they had opportunity to pursue Orders in respect of the water tank and the soil build up against the fence in the Local Court. Clearly, that is a matter for the applicants to pursue and not a matter which the Court forms any view about. Having said that however, the Court notes that it has spent a great deal of time ventilating the issues between the parties in this appeal and earlier proceedings. It has visited the site twice and heard from the parties over four hearing days. The Court is satisfied that the removal of the Oak tree, the grinding of its stump and root buttress, and the payment of compensation (in earlier proceedings) in the amount of $5,000 to the applicants by way of compensation for damage to their property resolves all issues between the parties. For the reasons stated above the Court 's Orders are:

1. The appeal is upheld in part Order 1 is made.

2 Proposed Orders 2 and 3 are dismissed.

Susan Dixon

Commissioner of the Court

David Galwey

Acting Commissioner of the Court

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 08 June 2012

Land and Environment Court New South Wales

Judgment

Introduction

Onsite hearing 23 March 2012

Resumed Court hearing on 9 May 2012

Land and Environment Court
New South Wales