Land and Environment Court New South Wales

• Medium Neutral Citation: Goldmann and anor v Malane [2012] NSWLEC 1234
• Hearing dates: 17 August 2012
• Decision date: 17 August 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1) The application is upheld.

(2) Ms Malane is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to remove the three Norfolk Island Pines to ground level. The stumps are to remain in the ground. These works are to conform to the WorkCover NSW Code of Practice for the Amenity Tree Industry and are to be completed within 60 days of the date of these orders.

(3) The Goldmanns are to provide all access required for the works in (2) on reasonable notice during reasonable hours of the day. They can supervise the works if they wish.

(4) Within 30 days of the date of these orders the parties are each to obtain two quotes for repair of the section of paving between the dwelling and the trees, being the section at the same level as the paving where the large root has been exposed. The quotations must show details of the works, including lifting of pavers, cutting and removal of roots, preparation of the surface and re-laying of pavers.

(5) The Goldmanns are to provide all reasonable access during reasonable hours of the day on reasonable notice for contractors selected by Ms Malane to assess the site for the purpose of providing quotations.

(6) Within 35 days of the date of these orders the parties are to agree on one of the quotes or, if they cannot agree, select the cheapest quote.

(7) The Goldmanns are to engage and pay for the selected contractor in (6) to carry out the works in (4). The works are to be completed within 90 days of the date of these orders.

(8) Ms Malane is to pay the Goldmanns 50% of the selected quote in (6) within 7 days of receiving a receipted invoice for the completed paving works.

(9) If the Goldmanns do not provide Ms Malane with a receipted invoice for the works within 120 days of the date of these orders, (8) lapses.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; risk of damage; risk of injury; removal of three trees ordered; compensation ordered.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Andrew Goldmann (First Applicant); Eva-Maria Goldmann (Second Applicant); Madeline Malane (Respondent)
• Representation: Andrew Goldmann (Litigant in Person) (Applicant); Mr John Comino, Comino Prassas Lawyers (Respondent)
• File Number(s): 20421 of 2012

Judgment

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

1 ACTING COMMISSIONER: On sloping land above Bonnet Bay three Norfolk Island Pines grow on Ms Madeline Malone's property within a metre of the common boundary with her neighbour Mr Goldmann's property. Mr Goldmann, the applicant, says that roots from the trees have damaged paving and a retaining wall on his land and that they will cause further damage. He is also concerned that limbs falling from the trees will cause injury. Ms Malane, the respondent, values the benefits that the trees provide and wishes to retain them. Mr Goldmann and Ms Malane have tried to resolve the matter through mediation but were unable to reach a satisfactory outcome. Mr Goldmann has applied to the Court under the Trees (Dispute Between Neighbours) Act 2006 ("the Act") seeking orders for removal of the trees and for compensation of costs to repair his paving.

Framework for consideration

2 Firstly, s 10(2) of the Act requires that the Court be satisfied that the tree 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 a person. If one of those tests is satisfied the Court's jurisdiction is engaged. Secondly, the Court must consider a range of matters under s 12, including environmental benefits of the trees and any action taken by, or omission of, the parties. Finally, orders as outlined in s 9 of the Act can be made as the Court sees fit to remedy, restrain or prevent damage to the applicant's property, or to prevent injury to a person.

Positions of the parties

3 Ms Malane has lived at her property for approximately 24 years. The three Norfolk Island Pines were already present when she arrived. Mr Goldmann has lived at his property for a little over four years.

4 Mr Goldmann first noticed that his pavers were disrupted approximately two years ago. In November 2010 he informed Ms Malane and her husband, in discussion and by letter, of his concerns regarding roots of the trees causing damage to his paving. In his letter he raised the possibility of a root barrier being installed and suggested an arborist should be involved. Since then the parties have attempted to, but have been unable to, reach agreement on a suitable outcome. Their positions can be summed up as follows.

5 Ms Malane has obtained and relies upon advice and reports from Mr Peter Dubiez, arborist of Enviro Frontier Pty Ltd. Based on his report she accepts that an area of paving near the trees has been lifted by roots. Mr Comino, acting for Ms Malane, says that the pavers should be lifted, a root barrier should be installed two metres from the trees and the pavers should be properly re-laid. He says Ms Malane is willing to contribute half of the cost of this work. He says it has not been shown that other areas of paving have been damaged by roots of these trees. Ms Malane states that the paving was laid by a previous owner who was not a professional landscaper and it was not professionally done. She submits that, as recommended by Mr Dubiez, the area of paving between the root barrier and the trees could be treated by regular maintenance or by installing a wooden deck on stumps. Ms Malane says that the trees provide benefits, including acting as a windbreak to her dwelling, and wants to retain them.

6 Mr Goldmann's position is that he agrees that a root barrier cannot be placed closer than two metres from the trees without compromising their stability. However, he says that the area of paving that would remain between the trees and a root barrier two metres from the trees would be further damaged in future. He does not want to accept regular maintenance, being the lifting and re-laying of pavers, and does not want a wooden deck. He says therefore that tree removal is required to prevent further damage.

On-site hearing

7 The on-site hearing allowed a thorough view of the trees, roots, paving and relevant issues. The three trees are Norfolk Island Pines (Araucaria heterophylla) with a height range of 15 to 20 m and stem diameters of 35 to 45 cm. They are within one metre of the boundary, slightly above Mr Goldmann's paved area and at the bottom of a steep slope up towards Ms Malane's dwelling. They appear to have typical health and structure for the species.

8 The trees are approximately 4.4 m from Mr Goldmann's dwelling. There is no dispute that the trees are on Ms Malane's land.

9 Some pavers have been removed between the trees and Mr Goldmann's dwelling, revealing a root that is approximately 10 cm in diameter near the boundary, tapering to a smaller diameter toward the dwelling. There appears to be no dispute that this root is from one of the Norfolk Island Pines or that it has lifted some paving.

10 Mr Goldmann pointed out further paving, saying it is bulging and uneven. Although that paving has not been lifted to expose any roots, he says that it seems obvious that the paving's condition is caused by Norfolk Island Pine roots. Mr Comino says there is no evidence of this.

11 Mr Goldmann pointed out a root that is growing on the bottom edge of his dwelling wall causing slight displacement of paving. He also took us to a root underneath his dwelling. Mr Comino says there is no evidence that either of these roots is from the Norfolk Island Pines. Applying my own expertise to the matter I am satisfied, based on the nature of the bark visible on these roots, that they are Norfolk Island Pine roots. There are no other Norfolk Island Pines nearby so I am satisfied that these roots are from one or more of the three Norfolk Island Pines.

Trees have caused damage

12 The paving nearest the trees has been lifted enough that I am satisfied that one of the tests at s 10(2)(a) of the Act is met: that is, a tree on Ms Malane's land has caused damage to Mr Goldmann's property. I am also satisfied, based on the proximity of these large trees and the lack of other obvious causes, that roots from one or more of the trees are responsible for the generally uneven surface of this entire section of paving.

13 Mr Goldmann is also concerned about falling limbs causing injury. He pointed at one limb hanging in the branches of one of the trees, and showed photos of another limb that had fallen onto his property. Ms Malane submits that these limbs are small and are unlikely to cause injury. I accept that, at least based on the hanging limb in the tree, there is some chance that the trees may cause injury. However I have already established that one of the jurisdictional tests s 10(2) is satisfied and there is no need to satisfy any other.

What action is required to prevent further damage?

14 If nothing else were to change it seems likely that the trees' roots will cause further damage to paving. The questions then arise: can roots be cut, and where?

15 Reports by Mr George Oze of OZE Chipping Service Pty Ltd and Mr Peter Dubiez of Enviro Frontier Pty Ltd were tendered as evidence. I note that Mr Oze has only a Level 2 certificate. He calls the trees "North Island Pines". He says the trees have damaged foundations of the dwelling, but there is no evidence of this. He says roots have caused thousands of dollars' worth of damage, but there is no evidence of this. He says that foundations of the house will become seriously compromised due to the roots - again, there is no evidence of this. The report contains incorrect information and unsubstantiated conclusions. It is not reliable.

16 Mr Dubiez's report of 14 June 2012 accurately identifies the trees and provides their dimensions. He says that severance of their roots at the edge of the paving, which is less than two metres from the trees, would compromise the trees' stability and I accept this. His report is not entirely accurate, however. For instance, I do not accept his claim that the trees will not grow taller. I find his calculations in his subsequent evidence of 3 August 2012 regarding Tree Protection Zones on page 3 are incorrect.

17 I am of the view that roots have caused damage and are likely to cause further damage. Therefore, simple repair of paving is not enough - if only repair works were carried out, further damage would be likely. So the first question is: can a root barrier be installed at the edge of the paving? Based on the evidence and conclusions of Mr Dubiez, along with my own knowledge, I am of the view that cutting roots at the edge of the paving, within 1.5 m of the trees, would make them unsafe.

18 The second question, then, is: is it reasonable to install a root barrier within the paved area, at least two metres from the trees, and for the paved area nearer the trees to be maintained regularly or replaced with a wooden deck? Mr Goldmann says that he does not wish to accept such a change to his property.

19 To assist me to form a decision on whether this is a reasonable outcome I must first consider the matters in s 12 of the Act. My consideration of the relevant matters at s 12 is set out below.

S 12(a). The trees are entirely on Ms Malane's land close to the boundary. They are approximately 4.5 metres from Mr Goldmann's dwelling.

S 12(b). Interference with the trees would require consent from Council under the Environmental Planning and Assessment Act 1979.

S 12(b2). Pruning of roots less than 1.5 metres from the trees would impact the trees' stability. The nature of the local soil is sandy with shallow rocks, and there is some history of other trees failing in the area. This is not evidence that the three Norfolk Island Pines will fail, however these factors should be considered. Given the trees' proximity to a dwelling, it is important that the trees stability is not compromised. This must be considered when determining at what distance from the trees any root pruning could be done. There is clear evidence that large woody roots that are likely to be structural roots contributing to tree stability are present below Mr Goldmann's pavers two metres from the trees.

S 12(b3). The trees contribute to the landscaping of Ms Malane's property and provide some protection from wind.

S 12(c). No evidence was provided that the trees have any historical, cultural, social or scientific value.

S 12(d). The trees may contribute to the local ecosystem but they are not of a locally indigenous species.

S 12(e). The trees contribute to the natural landscape and scenic value of the land and the locality.

S 12(f). The trees can be seen from public land and have some value to public amenity.

S 12(g). The site is steeply sloping and the trees may contribute to soil stability.

S 12(h)(i). Ms Malane stated that the paving was not professionally laid, and I accept her evidence. Mr Goldmann does not have a right to a better quality of paving than the existing paving at Ms Malane's expense. The paving has aged since it was laid. Ms Malane should not have to pay the full cost of its repair.

S 12(h)(ii). Mr Goldmann notified Ms Malane of the damage in 2010, soon after he first noticed the damage. He alleges that the damage has worsened since 2010 and I accept that this is at least likely. It seems reasonable for Ms Malane to contribute around half of the cost of re-laying the paving.

20 Balancing the above, I find that the value of the trees does not outweigh the right of Mr Goldmann to have his property remain undamaged without requiring anything more of him than reasonable maintenance. It would be unreasonable for Mr Goldmann to have only part of his paving protected by a root barrier, with the remainder requiring regular repair. It also seems unreasonable for Mr Goldmann to change his landscape from paving to a deck if that is not what he wants. On these grounds I am of the view that tree removal is required.

21 As yet, it has not been established if all three trees have caused damage, only that at least one of them has. However I am satisfied that, considering their proximity to the paved area, all three trees are likely to cause damage to paving in the near future, and the Court has jurisdiction to make orders for all three. Furthermore, considering stability issues for all three trees - the soil type, the level of exposure to high winds, the growth of the trees together as a single group - removing any one tree or two trees would leave the remaining tree or trees at a higher risk, and an unacceptable risk, of whole tree failure in future. It follows that all three trees need to be removed. It would be prudent to leave their stumps in situ to prevent soil disturbance that might contribute to erosion.

What compensation should be paid, if any?

22 Regarding compensation, the Court has been supplied with three separate quotations regarding the paving. (The quote from OZE Chipping is for tree removal.) Mr Goldmann obtained a quote from Planned Landscapes Pty Ltd for $11,660. Mr Comino points out that this quotation seemed excessive when compared to the others. I note it includes an amount for installing a root barrier, but ignoring that component the quotation is still much higher than the others. Mr Goldmann obtained an earlier quotation that includes lifting of the pavers near the side entrance and re-laying them to rectify uneven paving. It does not include a root barrier and the total of that quotation is $4,200. Ms Malane submitted a further quotation obtained on 6 August 2012 from New Living Landscapes, apparently for the same works, for a total of $1,390. That quotation provides very little detail as to the area of paving that would be replaced or the method of works.

23 I accept Ms Malane's statement that paving was laid by an occupant and not by a professional. However I must also consider that, for the last two years, she has been on notice that roots from her trees may be causing damage. She should contribute to the cost of re-laying the pavers - 50% of that cost seems reasonable. It would be fair to give both parties time to obtain further quotations. As noted before, the quotation from New Living Landscapes does not provide adequate detail.

Orders

24 As a result of the above, the orders of the Court are:

(1) The application is upheld.

(2) Ms Malane is to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3), with all appropriate insurances, to remove the three Norfolk Island Pines to ground level. The stumps are to remain in the ground. These works are to conform to the WorkCover NSW Code of Practice for the Amenity Tree Industry and are to be completed within 60 days of the date of these orders.

(3) The Goldmanns are to provide all access required for the works in (2) on reasonable notice during reasonable hours of the day. They can supervise the works if they wish.

(4) Within 30 days of the date of these orders the parties are each to obtain two quotes for repair of the section of paving between the dwelling and the trees, being the section at the same level as the paving where the large root has been exposed. The quotations must show details of the works, including lifting of pavers, cutting and removal of roots, preparation of the surface and re-laying of pavers.

(5) The Goldmanns are to provide all reasonable access during reasonable hours of the day on reasonable notice for contractors selected by Ms Malane to assess the site for the purpose of providing quotations.

(6) Within 35 days of the date of these orders the parties are to agree on one of the quotes or, if they cannot agree, select the cheapest quote.

(7) The Goldmanns are to engage and pay for the selected contractor in (6) to carry out the works in (4). The works are to be completed within 90 days of the date of these orders.

(8) Ms Malane is to pay the Goldmanns 50% of the selected quote in (6) within 7 days of receiving a receipted invoice for the completed paving works.

(9) If the Goldmanns do not provide Ms Malane with a receipted invoice for the works within 120 days of the date of these orders, (8) lapses.

__________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 22 August 2012