Land and Environment Court New South Wales

• Medium Neutral Citation: Terrey v Freeman & anor [2012] NSWLEC 1228
• Hearing dates: 14 August 2012
• Decision date: 14 August 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] Future damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Yang v Scerri [2007] NSWLEC 592; Robson v Leischke [2008] NSWLEC 152; Liang & anor v Marsh & anor [2011] NSWLEC 1026; Hinde v Anderson & anor [2009] NSWLEC 1148; McCallum v Riodan & anor [2011] NSWLEC 1009; Zangari v Miller (No 2) [2010] NSWLEC 1093
• Category: Principal judgment
• Parties: Ms K L Terrey (Applicant); Mr R and Mrs P Freeman (Respondents)
• Representation: Applicant: Ms Terrey (Litigant in Person); Respondents: Mr R and Mrs P Freeman (litigants in person)
• File Number(s): 20305 of 2012

Judgment

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

1 COMMISSIONER: The applicant in these proceedings purchased her property in Sawtell in December 2011, approximately eight months ago. The application under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) was made about three months after the purchase.

2 The applicant is seeking the removal of a Norfolk Island Pine and the maintenance of three other nominated trees in order to prevent future damage to her property. Specifically she wants to ensure that roots from the respondents' trees will not cause damage to the dividing fence, a low masonry retaining wall, and a larger more substantial retaining wall.

3 All of the trees are growing at the rear of the respondents' property. The respondents planted the Norfolk Island Pine as a seedling some time shortly after they moved onto their property in 2000. It is growing in the far north-western corner of their garden. Its trunk is approximately 150mm from the timber dividing fence.

4 The other trees are: Tree 2 - a Mango planted some 3.5-4m from the dividing fence; Tree 3 is most likely a Red Cedar about 1.5m from the fence; and Tree 4 - a severely lopped Umbrella Tree within a metre of the south-western corner of their property. There are other assorted trees and shrubs, including some palms, that are closer to the fence but these are not subject to the application.

5 The respondents do not wish to remove the trees and contend that they regularly maintain their trees.

The low retaining wall

6 The low retaining wall is located on the applicant's property within 300-400mm of the new timber dividing fence. According to uncontested material tendered by the respondents, the former owners of the applicant's property built the low cement block retaining wall in 1974 along what was believed at the time to be the boundary line. The wall extends across the full length of the applicant's backyard.

7 The respondents' property is upslope and the soil appears to be quite clayey.

8 The wall is 2-3 courses high on a concrete footing. The cavities in the cement blocks have been filled with concrete. Originally the wall supported a wire fence with metal posts; some of the posts remain. According to oral evidence given on site, the parties agree that the footing was partly exposed when the new timber fence was erected and they believe the footing is about 400mm wide and about 150-200mm deep. In several locations on the applicant's side, the footing now appears to be sitting at about the current ground level.

9 The wall is cracked in several locations and the entire wall leans towards the applicant's dwelling. The footing appears to have tilted in a similar direction.

10 The retaining wall retains a soil depth that ranges from about 500mm at its northern end to about 200mm at the southern end. I observed that soil had eroded from the base of some sections of the wall.

11 According to the respondents' evidence, sometime in the 1980s the former owner of the respondents' property planted a vine on the wire fence. In addition, a self-seeded 'bean' tree had grown and was leaning on the fence and on a nearby garden shed. Both the respondents and the former owners of the applicant's property enjoyed the privacy afforded by the vine and the bean tree.

12 Shortly after the applicant purchased her property the new timber fence was erected along the surveyed boundary line (east of the low retaining wall). The vine and bean tree were removed to enable construction of the fence. The applicant stated that the wall was in its current condition when she purchased the property but she doesn't want it to get any worse.

13 The only root I was shown was a root from the Norfolk Island Pine. The root was on the surface of the retained soil behind the low retaining wall at the north-eastern end of the applicant's property. The root was not touching any part of the wall and there was a clear gap between the root and the wall.

14 The applicant confirmed that nothing had changed in the time that she had owned the property nor had she taken any action to remove the root, as she was concerned about damaging the tree.

The large retaining wall and dividing fence

15 This retaining wall is about 6m to the west and down slope of the dividing fence. It is about 2m high and retains the applicant's backyard. The wall appeared to be in good order however the applicant is concerned that roots from any or all of the trees could, in the future, affect its integrity. The applicant was unable to show me any evidence of root growth in the vicinity of the wall.

16 The majority of the timber dividing fence was completed in January this year and is in good order.

Jurisdiction

17 In applications made under Part 2 of the Trees Act, the key jurisdictional test is s 10(2). This states that the Court must not make an order under this Part 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.

18 In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Craig J discusses the obligation created by s 10 for the Court to be satisfied of the causal nexus between the tree/ trees the subject of an application and the damage claimed by an applicant. At [62] he writes: 'something more than a theoretical possibility is required in order to engage the power under [the Trees Act] ..'.

Findings

19 Dealing first with the potential future damage to the major retaining wall, I consider this is an example of a 'theoretical possibility' in the absence of any evidence to support that possibility. As stated previously, the applicant was unable to demonstrate the presence of any roots in the vicinity of the wall and to establish they formed an imminent threat of damage.

20 In the guidance decision of Yang v Scerri [2007] NSWLEC 592 the Court applied a 'rule of thumb' that the appropriate timeframe for 'the near future' is 12 months from the time of the hearing. This timeframe has been consistently applied and I see no reason in these circumstances to deviate from it.

21 As s 10(2) is not met for any tree with respect to the major retaining wall, no orders can be made for any orders to interfere with any of the trees on this basis. Therefore, this element of the application is dismissed.

22 With respect to the low retaining wall, there is no evidence that roots from trees 2, 3 and 4 have caused any damage to it or are likely to do so in the near future. Similarly these trees are unlikely in the near future to cause damage to the fence. As s 10(2) is not met with respect to these trees, no orders can be made for any intervention with them and these elements of the application are dismissed.

23 Turning to the Norfolk Island Pine, it is true that this is a relatively young tree located close to the common boundary. There is clearly a surface root from this tree on the applicant's property behind the retaining wall.

24 In putting the applicant's case at its highest, I am prepared to accept that the root is likely to be one cause of the damage to the wall. In Robson v Leischke [2008] NSWLEC 152, at [179] Preston CJ notes that it is sufficient for a tree to be 'a' cause and not the sole cause of damage for the Court's jurisdiction to be engaged.

25 Therefore s 10(2) is met and the Court's jurisdiction is engaged with respect to this tree. However in considering what, if any, orders should be made under s 9 of the Act, I must consider a number of discretionary matters in s 12.

26 Relevant here: the tree is wholly on the respondents' property (s 12(a)); the removal of the visible surface root is unlikely to cause any detrimental impact on the tree's stability or health (s 12(b2)); the respondents contend that the tree contributes to the landscaping and amenity of their property and as it can be seen from nearby properties and streets, it also contributes to public amenity (s 12(b3)(e)(f)); the respondents also contend that the tree assists with drainage and soil stability in that corner of their property (s 12(g)).

27 Of particular relevance is s 12(h)(i) - anything other than the tree that may contribute to the damage. The significant factors are: the age of the retaining wall (38 years); the unknown structural integrity of the footings; the pressure of soil, water and gravity on the wall over the past 38 years; the agreed past presence of a heavy vine and a leaning tree on the wall; erosion of soil from the base of the wall; the absence of weep holes and no evidence to suggest that the soil behind the wall is drained.

28 Also relevant is s 12(h)(ii) - While the bean tree and the vine have been removed, no other action has been taken to prevent further damage.

29 Other relevant matters include the fact that the applicant was aware of the condition of the wall when she purchased the property and no further damage has occurred during her ownership. The surface root is not touching the wall (s 12(j)).

30 The applicant seeks the removal of the tree. In my view this is disproportionate to the likely future impact of the observed root on what is clearly an old and dilapidated retaining wall. While the root may be a minor contributing factor, the other contributing factors outlined above are likely to be the main causes.

31 The issue of coming to the damage is discussed in Liang & anor v Marsh & anor [2011] NSWLEC 1026 at [33]-[35].

32 After considering the evidence and the particular circumstances of this matter, I am not satisfied that the contribution of the tree to the condition of the wall is such that it warrants an order of the Court.

33 As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, if the circumstances change a new application can be made. The decisions in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 shed further light on what the Court considers to be changed circumstances.

34 In conclusion the application to remove the Norfolk Island Pine is dismissed. With respect to the entire application, the Orders of the Court are:

(1) The application is dismissed.

_____________________________

J Fakes

Commissioner of the Court

Decision last updated: 17 August 2012