Aarons v MacDonell as Executor to the Estate of the late Ronald Ayres

[2015] NSWLEC 1058

Land and Environment Court

New South Wales

Medium Neutral Citation:	Aarons v MacDonell as Executor to the Estate of the late Ronald Ayres [2015] NSWLEC 1058
Hearing dates:	18 March 2015
Date of orders:	18 March 2015
Decision date:	18 March 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld: see orders at paragraph 25.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; orders for tree removal.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Peter Aarons (Applicant) Wendy MacDonell as Executor to the Estate of the late Ronald Ayres (Respondent)
Representation:	Peter Aarons, litigant in person (Applicant) Paul Larbalestier, solicitor (Respondent)
File Number(s):	20940 of 2014

Judgment

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

Background

1. Less than a year ago, Mr Aarons (“the applicant”) purchased a residential property in the inner Sydney suburb of Darlinghurst. Two trees stood at that time, as they do now, in the narrow disused right-of-way behind his property. This right-of-way forms part of the property belonging to the Estate of the late Mr Ayres, who died recently. The respondent in this matter is Ms MacDonell, as the executor to the estate of the late Mr Ayres.

2. Mr Aarons says the trees have caused cracking of his rear boundary wall. In October last year he wrote to the respondent asking for the trees to be removed. In November he applied to the Land and Environment Court pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”) seeking orders for removal of both trees.

3. The respondent says the trees provide amenity to the local community. She says the estate has no funds to pay for tree removal, but that she does not object to the applicant paying to remove the trees if Council gives permission for their removal.

Onsite hearing

4. The onsite hearing allowed, despite some obstacles to access, a view of the two trees and the applicant’s property and boundary wall. 

5. The narrow right-of-way is surrounded by dwellings. No recent feature survey plan was adduced but the alignment of nearby boundary walls indicated that both trees are principally situated on the respondent’s land (s 4(3) of the Trees Act), even if at ground level at least one of them, the large Poplar, is encroaching onto adjoining land.

6. The largest tree is a tall mature Lombardy Poplar (Populus nigra var. italica) with a stem diameter of almost one metre. It appears to still be growing vigorously. At ground level it is perhaps 200 mm or so from the applicant’s boundary wall. Its root buttress can be seen to spread outwards into the surrounding soil. The Poplar’s canopy spreads broadly above several properties.

7. Growing from right next to the base of the Poplar and spreading out over neighbouring properties is a smaller and younger Chinese Hackberry (Celtis sinensis). Its stem has grown at an angle due to overshadowing from the Poplar.

8. The soil around the trees is approximately 800 mm higher than adjacent ground level on the applicant’s property, so that the lower part of the boundary wall acts as a retaining wall.

9. The boundary wall is old and constructed of a single layer of brick. It has large cracks running through it, with the largest and most cracking in the immediate vicinity of the Poplar's base.

Applicant’s submissions

10. The applicant has not provided any arboricultural or structural engineering evidence.

11. Mr Aarons says the tree is likely to cause further damage to the wall. He intends to rebuild the wall but says the tree would damage the new wall. He says the tree is also likely to cause damage to other properties. He says tree roots are likely to damage the old earthenware sewer pipe running along the back part of his and adjoining properties. Mr Aarons showed a fallen Poplar limb in his courtyard and says the tree may cause injury to himself or others.

12. Mr Aarons expressed his willingness to accept a longer than normal timeframe for any orders to be carried out, if that would allow the respondent time to organise finances or to sell the property, with orders passing on to a subsequent owner.

Respondent’s submissions

13. Mr Larbalestier, acting for the respondent, says that if the tree was responsible for causing damage he would expect to see the applicant’s concrete slab in the courtyard and other infrastructure damaged. He says there is surprisingly little damage to the applicant’s property. He submits that, as the applicant is not claiming compensation and intends to rebuild the boundary wall, construction of a new wall could be done so as to retain the tree. The respondent says that the estate of Mr Ayres has no available cash.

14. Mr Larbalestier also expressed a preference for a long timeframe in which to carry out any orders for tree removal, allowing the executor to remove the tree or sell the property conditional to any Court orders.

15. The respondent also submits that the applicant has not made reasonable effort to reach agreement with the respondent, and therefore, according to s 10(1)(a) of the Trees Act, the Court cannot make orders. However I note that Mr Aarons sent a letter outlining his concerns to the respondent in October last year. He may have then only waited three weeks before making his application to the Court, but in that time he received no response. The letter he received from the respondent after making the application clearly set out the respondent’s position. It is reasonable for Mr Aarons to conclude, based on the response, that further negotiation would not result in an outcome he would find satisfactory. Furthermore, the presence of the parties at the hearing provides an opportunity for them to reach agreement. The requirement for reasonable effort only applies before the Court makes orders, not before the application is made. Again, it was apparent to Mr Aarons at the hearing that he would not be able to reach agreement with the respondent. In Robson v Leischke [2008] NSWLEC 152, Preston CJ explained at [195]:

The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made “a reasonable effort to reach agreement” is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process.”

16. I am satisfied that Mr Aarons has made reasonable effort and that the Court can make orders.

Findings

17. Bringing my own expertise as an arborist to the situation, I am satisfied that buttress roots of the Poplar, below ground level on the respondent’s land but above the bottom of the applicant’s boundary wall, as well as soil displaced by growth of those roots, have pushed against the wall as they have grown in girth, displacing bricks in the wall and causing cracking. The Poplar is still growing and is likely to cause further damage in the near future. As a rule-of-thumb since Yang v Scerri [2007] NSWLEC 592, the Court has consistently regarded a period of 12 months as “the near future” and I see no reason to vary from that. As a result, the jurisdictional test at s 10(2)(a) is satisfied – the tree has caused, and is likely in the near future to cause, damage to the applicant’s property – and so the Court may make orders.

18. Although the applicant stated that he has noticed the extent of damage increase during the short period he has lived here, it is likely that most of the damage occurred prior to his purchase. That would be a relevant consideration were he claiming compensation. The main issue I see as pertinent here is that the tree is likely to cause further damage in the near future, and that its location will either prevent Mr Aaron rebuilding the wall on the boundary, or will damage a new wall even if it is slightly offset from the boundary. 

19. The Poplar is expansive, providing significant amenity to the neighbourhood and shading to surrounding properties. It is therefore with some reluctance that I find that removal of the tree is the only course of action that can reasonably prevent further damage.

20. The Chinese Hackberry grows against the base of the Poplar. Once the Poplar is removed the Hackberry will have a high risk of failing, having lost any support provided by the Poplar. It leans significantly over other properties and will consequently be likely to cause injury. Therefore its removal shall also be ordered.

21. There was no evidence that roots have damaged or are likely to damage sewerage pipes. The mere presence of trees near sewerage pipes is not a cause for intervention. Damage to sewerage pipes, past or future, was not shown to be a problem here and is not a factor in making the orders below.

22. Stumps of the trees will need to be ground, grubbed or otherwise removed to a depth of one metre within 500 mm of the boundary wall to allow the applicant to rebuild the wall on the boundary with a proper footing.

Timeframe for works

23. An extended timeframe will be allowed for the works so that the respondent can organise finances. A successor in title to the owner of the land on which the trees grow is bound by the order in the same way as the original owner (s 16(1) of the Trees Act). If the respondent sells the property during this period, I note that it would be prudent for her to ensure that the new owner is aware of any outstanding orders. The applicant may wish to give a copy of the orders to any new owner of the property, as only then is the successor in title bound by the orders (s 16(2) of the Trees Act).

Surrounding property owners

24. The trees overhang several properties. It is the respondent’s responsibility to give them all adequate notice of the works. Access to their properties may be required.

Orders

25. Therefore the Orders of the Court are:

1. The application is upheld.

2. Within 10 months of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3), with all appropriate insurances, to remove both trees (the Lombardy Poplar and the Chinese Hackberry) in the right-of-way at the rear of the applicant’s property, to ground level.

3. The works in (2) are to be done in accordance with the Workcover Code of Practice for the Amenity Tree Industry.

4. Within 7 days of the works in (2) being completed the respondent is to engage and pay for a suitably experienced contractor to grind or otherwise remove the stumps of both trees to a depth of at least one metre within 500 mm of the applicant’s boundary.

5. The respondent is to give the applicant, and the owner of all other affected properties, at least 7 days' notice of the works in (2) and (4).

6. The applicant is to allow any access required for all works ordered above during reasonable hours.

____________________________

D Galwey

Acting Commissioner of the Court

20940 of 2014 Galwey (O) (28.3 KB, docx)

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Decision last updated: 20 March 2015