Land and Environment Court New South Wales

• Medium Neutral Citation: MacPhail & anor v Ware & anor [2012] NSWLEC 1230
• Hearing dates: 15 August 2012
• Decision date: 17 August 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed.

• Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; trees that have been the subject of a previous application; have the circumstances changed; evidence is not "fresh evidence"; application dismissed.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Barker v Kyriakides [2007] NSWLEC 292; MacPhail v Ware [2008] NSWLEC 1213; McCallum v Riordan & Anor [2011] NSWLEC 1009; Zangari v Miller (No 2) [2010] NSWLEC 1093
• Category: Principal judgment
• Parties: Mr Robert MacPhail and Mrs Gillian MacPhail (Applicants); Mr Kenneth Ware and Mrs Robyn Ware (Respondent)
• Representation: Mr Robert MacPhail and Mrs Gillian MacPhail (Litigants in Person) (Applicants); Mr Kenneth Ware and Mrs Robyn Ware (Litigants in Person) (Respondent)
• File Number(s): 20454 of 2012

Judgment

1 COMMISSIONER: This application, made under the Trees (Disputes Between Neighbours) Act 2006 ("the Act") concerns trees and damage that were the subject of a previous application before the Court, as well as other trees that were not the subject of that application.

2 Mr and Mrs MacPhail own and live on their Illawong property, which has a battleaxe formation. Their dwelling is accessed via a driveway that, for its approximately 60-m length, runs alongside the common boundary with Mr and Mrs Wares' property.

3 The MacPhails applied to the Court in 2008, under the Act, seeking orders regarding three trees and damage caused by those trees. The judgment (MacPhail v Ware [2008] NSWLEC 1213) of Moore C and Thyer AC included orders for removal of a tree and payment of some compensation. That judgment was included as evidence by the applicants.

4 The MacPhails now seek orders for two of those trees again, as well as for eight additional trees. The written application did not include a clear description of orders sought, so the MacPhails were asked to clarify these during the hearing, the outcome of which is the following list (I have added tree numbering for ease of reference):

• Removal of a Jacaranda (T1) to prevent damage to the driveway;
• Pruning of three conifers (T2-T5) that overhang the boundary to prevent debris falling onto their property;
• Removal of a Fiddlewood (T6) to prevent damage to the driveway;
• Removal of all the roots on their property of a Liquidamber (T7) to prevent damage to the driveway, and compensation for damage to the driveway;
• Removal of a Golden Cypress (T8) to prevent damage to the driveway, and compensation for damage to the driveway; and
• Removal of two palms (T9 and T10) to prevent debris falling onto their property and to prevent injury.

5 The MacPhails do not seek orders from the Court regarding the remaining stumps of a Eucalypt and a Hakea, trees that have been otherwise removed.

6 The Wares wish to retain all their trees, saying they provide privacy, amenity and habitat.

7 The MacPhails provided expert evidence, being a "Statement of Evidence" by Paul Laverty, of Accord Tree Consultants, dated November 2011. That statement includes a report by John Ford, Consultant Botanist, identifying two root samples. Mr Laverty appeared at the hearing to provide expert evidence.

8 At the outset of the hearing the Wares expressed concern that they were not notified that Mr Laverty would be providing evidence at the hearing. They say that, had they been aware of this, they would have brought an arborist to the hearing also. Direction 15 from the Directions hearing of 19 June 2012 states that a party requiring an expert witness for cross-examination at the hearing is to provide 5 working days' notice. In my view this is for the purpose of enabling that witness to be informed of their required attendance. Certainly the Wares were not deprived of an opportunity to provide expert evidence, as their obligation at Direction 9 was to file and serve any expert reports by 16 July 2012. They have not filed any such reports. I note their concerns although I do not see that they have been disadvantaged in any way.

9 There have been issues between the parties regarding property access for the purpose of pruning or maintaining trees. These are not relevant to my decision.

Framework of the Act

10 For each tree, the Act requires a process of consideration to establish, firstly, if the Court has jurisdiction over the trees and, secondly, what orders would be appropriate for the situation. For the Court's jurisdiction to be engaged, s 10(2) of the Act requires it to be satisfied, for each tree, that the tree has caused, is causing or is likely in the near future to cause, damage to the applicant's property, or that it is likely to cause injury to any person. If at least one of these tests is satisfied the Court must consider a range of matters under s 12 of the Act before making orders as it sees fit under s 9 of the Act. Because two of the trees have been the subjects of a previous application, I must also consider if circumstances have changed regarding these trees, as discussed later.

Evidence

11 Each tree must, on its own, meet the jurisdictional test, so the trees are considered separately below. The trees are discussed in order from the start of the driveway at the street to its end at the MacPhails' dwelling.

Jacaranda (T1)

12 The Jacaranda was part of the 2008 application.

13 The MacPhails say the tree has damaged their driveway as its roots have lifted the concrete driveway strip nearest the tree. They are concerned that the lifted edge of the concrete driveway creates a trip hazard. They wish to repair the driveway, possibly by grinding of the lifted edge, but are concerned that root growth is likely to cause further lifting of the concrete strip in future.

14 The MacPhails had been concerned that overhanging branches dropped leaves onto their driveway, making it slippery. The Wares pruned overhanging branches prior to the hearing and the MacPhails no longer press their concerns regarding debris falling from the Jacaranda.

15 The Wares point out that they pruned roots from the Jacaranda along the boundary in 2008 and provided photographic evidence of this. They say that this will prevent roots causing damage in the near future. The MacPhails say roots were cut only to shovel depth, perhaps 200 mm. The Wares point to the condition of the driveway elsewhere, where it is lifted and cracked. In particular, they say roots from a large native street tree, now removed, caused some of this damage and showed a large root coming from the stump of the removed tree. The Wares say the driveway is over 40 years old and that its condition is due to its age, construction type and environmental conditions.

16 The MacPhails state that the degree of lifting of the concrete has increased since 2008. The Wares provided a photograph (Exhibit 2) they say was taken in 2008. It shows the Jacaranda and the extent of lifting of the nearby concrete strip. They say this shows that the degree of damage has not increased since 2008.

Conifers (T2-T5)

17 A row of conifers on the Wares' property, adjacent to the common boundary, is perhaps three metres tall. Foliage from these trees extends across the boundary. The MacPhails want the trees pruned back to the boundary, saying they drop leaves and that overhanging branches create a nuisance. They could not show that overhanging branches or fallen leaves have caused, are causing or are likely to cause damage, or that they are likely to cause injury. They also say that the trees may have caused some cracking of their driveway but that this cracking is minor and they do not seek orders relating to root damage. They seek orders for the Cypress trees to be pruned.

Fiddlewood (T6)

18 The Wares say they planted the Fiddlewood about 30 years ago. It is situated on their land. It is approximately 30 cm in diameter near its base. The tree has been topped, or reduced in height, and is only three or four metres tall. The section of concrete driveway nearest the tree has been lifted. Mr Laverty says a root that is around 20 mm in diameter near the driveway appears to come from the Fiddlewood. Although he has not carried out root identification, he states that excavation he undertook enabled him to trace the root to the Fiddlewood. He says that lopping of the tree's crown has encouraged root growth. The Wares say there were other small trees on the MacPhails' land between the driveway and the boundary in this area, and those trees would have contributed to damage. They say the degree of damage has not increased since those trees were removed in 2008. They say the photograph (tab W5 of exhibit 1) supports these statements. They contend that a 20 mm root would not be able to cause this damage. The Wares say the driveway carries a lot of cars and again point out its age. The MacPhails say that no heavy vehicles other than cars use the driveway. The Wares value the tree, saying it provides important screening for privacy and habitat for possums, birds and bats.

The Liquidamber (T7)

19 The Liquidamber was part of the 2008 application.

20 The MacPhails had the Liquidamber removed in October 2008 in accordance with the orders of the Court. They received compensation from the Wares for part of the cost of tree removal, as per the orders of the Court. The parties are agreed on those facts.

21 After the Liquidamber was removed, the Wares undertook to remove its stump and roots within their property. Roots within the MacPhails property have not been removed and now have suckers shooting from them. The Wares say that this shows the stump was not poisoned as it should have been if the tree had been removed by a suitably qualified and professional arborist. The orders of the Court were to remove the tree to ground level; there were no orders for poisoning the stump.

22 The MacPhails say the suckers create a nuisance and, furthermore, growth of suckers indicates that Liquidamber roots on their property are still active and will cause further damage to their property. Mr Laverty states on page 7 of his report that Liquidamber roots may "still be causing damage to the driveway."

23 The MacPhails have had the boundary surveyed since 2008 and say that white survey pegs now show that the dividing fence is not on the boundary and that the Liquidamber, at the base of its stem, was entirely within the Wares' property, not straddling the boundary as described in the 2008 judgment of this Court. In response, the Wares state that the parties agreed when the fence was first constructed that it was on the surveyed boundary. When the Wares had to upgrade the fence to conform to swimming pool safety requirements they only replaced the panels, using the existing posts that were on the previously agreed and surveyed boundary. A panel of the fence was bent around the stem of the Liquidamber, which straddled the boundary as originally surveyed.

24 The large concrete slab, approximately 29 m2 in area, that forms part of the driveway nearest the location of the Liquidamber, is lifted significantly, approximately 10 cm at one end relative to the adjacent slab. The MacPhails say this was caused by the Liquidamber's roots and that future root growth will cause further lifting.

25 Mr Laverty collected root samples near the driveway and Mr Ford identified them as Liquidamber roots.

26 The MacPhails want the Liquidamber roots on their property removed at the Wares' expense. They also want compensation for relaying of the concrete slab. They have obtained a quote (exhibit G) of $3,696 for this work.

The Golden Cypress (T8)

27 This is a healthy tree close to the same concrete slab of the driveway discussed in relation to the Liquidamber. The MacPhails say that roots of this tree have contributed to the lifting of the same concrete slab that was damaged by the Liquidamber. They say that although the damage was present in 2008 it is now worse. They say the tree's stem is pushing against the fence.

28 Mr Laverty states that he traced roots from near the damaged concrete slab back to this tree, and that root samples he collected were identified by Mr Ford as being Cypress roots.

29 The MacPhails want the Cypress removed. They seek the same compensation for the driveway in relation to this tree as described above in regard to the Liquidamber.

The two palms (T9 & T10)

30 Two palms grow on the Wares' property in proximity to the end of the driveway at the MacPhails' garage. The MacPhails say that fronds and fruit falling from these trees make this area of their property untidy, and that they fall onto cars. They do not claim that cars have been damaged. They contend that falling fronds pose a risk of injury to people on their property.

31 The Wares say that most fronds and fruit are likely to fall onto their own property and that the trees pose only a low risk.

32 The MacPhails want the two palms removed.

General

33 The Wares say that all of the trees contribute to their amenity; that the trees provide shading and privacy; that they provide habitat for birds, possums and bats; and that they take up groundwater or excess water run-off from the MacPhails' property, minimising waterlogging.

Does the Court have jurisdiction over the trees?

The Jacaranda (T1)

34 The tree has grown a little in the four years since 2008. Branches that were overhanging the boundary have been pruned. Apart from these changes the tree's situation remains the same as it was in 2008. Comparing the degree of lifting of the concrete driveway strip in the photo from 2008 with observations of the same driveway strip at the onsite hearing, I am not satisfied that the degree of damage has increased at all. If it has lifted further it is by such an insignificant degree as to be difficult to identify and not enough to warrant the attention of the Court.

35 The Court has previously addressed the issue of a second application regarding the same tree. In McCallum v Riordan & Anor [2011] NSWLEC 1009 Moore SC said at [3]:

The position is that a person is not able to make repeated applications to the Court concerning the same factual circumstances unless there is some material factual change.

36 The Senior Commissioner continued at [4]:

Absent such change in circumstances, there is no basis upon which the Court can reach any finding contrary to those that were obtained from the earlier hearing, when the issues that arise between the parties are identical in terms to those that were set out in the original application.

37 So, for a second application to be made regarding the same tree there has to be a material change in circumstances. The only changes here are some growth of the tree and pruning of limbs, neither of which could result in a different assessment of the damage that existed in 2008. There is no evidence that the tree has caused further damage since 2008. On this basis, the MacPhails cannot apply for orders regarding this tree. As a consequence, this element of the application is dismissed.

Cypress (T2-T5)

38 The MacPhails did not demonstrate that overhanging branches or falling leaves are likely to cause damage or injury. Because the conifers do not satisfy the jurisdictional test at s 10(2) of the Act I cannot make any orders regarding trees T2-T5 and this element of the application is therefore dismissed.

The Fiddlewood (T6)

39 Firstly, I do not accept Mr Laverty's evidence that lopping encourages root growth. In my experience, lopping of the crown encourages shoot growth within the crown and root growth is, if anything, reduced, at least for a while.

40 There are no signs that damage to the driveway has increased since 2008. The MacPhails did not explain why they had not included this tree in their 2008 application. Photographs provided by the Wares in Exhibit 1 show this area of the driveway. It is apparent that a row of Cypress trees grew on the MacPhails' land in the vicinity of this damaged section of driveway. Those trees have since been removed by the MacPhails. The photos also show that the MacPhails had placed pot plants on the lifted section of concrete. The Wares contend that this was done to prevent people driving or walking there, thereby avoiding injury or damage. They say the damage was present in 2008, and photographs indicate that this is likely. The MacPhails had the opportunity to include this tree in their 2008 application but chose not to. This does not prevent them from making an application regarding this tree now, but in my view it would be an unfair burden on the Wares for the MacPhails to make repeated claims for compensation for the same driveway damage, but to include a new tree each time.

41 Although it is apparent that one root near the driveway is from the Fiddlewood, the likelihood of several other trees having a substantial amount of root growth beneath the driveway means I am not satisfied that the Fiddlewood has caused the damage. However, even if it has contributed, thereby at least enlivening the Court's jurisdiction, the high likelihood of other factors contributing to the damage would be something I must consider at s 12(h)(i) of the Act. At s 12(b3) I must also consider the tree's contribution to privacy. As a consequence of such considerations, I would not make orders for interference with the Fiddlewood. This element of the application is dismissed.

Liquidamber (T7)

42 Regarding the MacPhails' claim that, based on their latest survey, the Court's 2008 decision regarding apportionment of costs in relation to the Liquidamber was incorrect, I turn to Moore SC's findings in Zangari v Miller (No 2) [2010] NSWLEC 1093. The Senior Commissioner considered a second application regarding a tree that had already been the subject of an application. Paragraphs (2) to (6) of that judgment are included below.

2) The two expert reports that are relied on by the applicant in these proceedings are exactly the same documents that were relied on in the proceedings in January 2010. The only physical difference that arises on this occasion is that the tree's roots have now been exposed by the removal of a number of elements of a concrete slab - that slab could have been removed prior to the hearing in January. Mr Zangari indicated that there have been no changes to the tree since then.

3) Mr Zangari, one of the applicants in both sets of proceedings spoke on behalf of himself and his wife. He suggested that there were medical reasons why he personally had not removed the slab on the last occasion. There is nothing in the Commissioner's decision that indicates that that matter was raised on that occasion. Whether or not that was applicable at that time, however, is a matter of irrelevance because there is no evidence in any of the material filed in these proceedings (that were subject to the standard directions) nor anything said this morning that establishes that it would have been impossible for Mr Zangari to have had somebody else remove the slab and expose the roots prior to the last occasion.

4) This hearing is proposed to proceed to determination on evidence that is in identical terms - relying on the same expert reports - as was the occasion in January of this year but with the tree roots now exposed.

5) There is no "fresh evidence" (within the meaning of that term as considered by appellate courts - including the High Court). There is certainly no reason to permit Mr Zangari now to rely on evidence that could otherwise have been available on the last occasion.

6) There is no basis upon which I should interfere with the finality of the earlier proceedings. This further application constitutes an abuse of process. As a consequence I do not intend to permit this application to proceed. The application is dismissed.

43 A change in the situation is required, not merely a change in the evidence regarding that situation. The MacPhails' property boundary has not moved, only the evidence as to where that boundary is located. The MacPhails did not provide this evidence at the 2008 hearing, although they could have obtained such evidence at the time. The latest boundary survey is not "fresh evidence". The MacPhails cannot, therefore, make a new application regarding compensation for damage that was present in 2008.

44 The situation regarding the Liquidamber has changed, however, since 2008. The tree has been removed as per the Court's orders. Suckers are shooting from roots within the MacPhails' property. Therefore I need to consider whether these changes have resulted in damage or have given rise to a risk of damage or injury.

45 Mr Laverty says the Liquidamber roots on the MacPhails' property are still active, which I accept, as suckers can be seen shooting from them. He concludes that the roots are therefore causing further damage. However I note that the suckers are small and have been cut previously. There is not enough shoot growth to support any significant growth in girth of the roots, so I reject the proposition that Liquidamber roots have caused further damage since 2008, or that they are causing damage, or are likely in the near future to cause damage.

46 The growth of suckers, in itself, is not damage and the suckers are unlikely to cause injury. The suckers do not engage the Court's jurisdiction. The MacPhails can cut them easily. The Wares have removed the entire stump and all roots of the Liquidamber from within their own property. There is nothing to prevent the MacPhails doing the same.

47 As a consequence of the above this element of the application is dismissed.

Cypress (T8)

48 As with the Fiddlewood, this tree was not a subject of the 2008 application. The MacPhails chose not to include it then. As with the Fiddlewood, there are other trees in the vicinity of the damaged driveway, including a row of Cypress trees on the MacPhails' property. Although Mr Laverty identified a root near the driveway as being from the Cypress, the likelihood of several other trees having a substantial amount of root growth beneath the driveway means I am not satisfied that the Cypress has caused the damage. However, even if it has contributed, thereby at least enlivening the Court's jurisdiction, the high likelihood of other factors contributing to the damage would be something I must consider at s 12(h)(i) of the Act. As a consequence of such consideration, I would not make orders for interference with T8.

49 As a consequence this element of the application is dismissed.

Palms (T9 & T10)

50 The Court established a principle in Barker v Kyriakides [2007] NSWLEC 292 regarding debris falling from trees. In essence, that principle states that, for people living in urban environments where they have the benefits of trees, some reasonable level of maintenance is to be expected, such as cleaning the surrounds of their houses on a regular basis. There is nothing about the situation of the palms that would lead me to differ from that principle.

51 Regarding falling fronds or fruit causing injury, the risk of this is so low as to not warrant any orders from the Court.

52 As a consequence, this element of the application is dismissed.

Conclusions

53 As each element of the application has been dismissed in turn, above, it follows that the application is dismissed in its entirety.

__________________________

D Galwey

Acting Commissioner of the Court

Decision last updated: 22 August 2012