Ahern v Loxton

[2016] NSWLEC 1380

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ahern v Loxton & anor [2016] NSWLEC 1380
Hearing dates:	30 August 2016
Date of orders:	30 August 2016
Decision date:	30 August 2016
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage; cause of damage not demonstrated.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Hinde v Anderson and anor [2009] NSWLEC 1148
Category:	Principal judgment
Parties:	Susan Ahern (Applicant) Peter Loxton (First Respondent) Janet Loxton (Second Respondent)
Representation:	Solicitors: Kerry Williams, A C Knibb Kaine & Associates (Applicant) Graham Gorrie, GRG Lawyers (Respondents)
File Number(s):	165774 of 2016

Judgment

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

Background

1. Ms Ahern (‘the applicant’) has lived at her Wahroonga property since its construction in 1965. Over the last few years she has noticed damage to parts of her dwelling and its surrounds, due, she says, to two neighbouring trees.

2. Ms Ahern gave uncontested evidence that a large limb fell from one of the trees in 2011, causing significant damage to her dwelling. Ms Ahern wants the two neighbouring trees, a Redwood and a Tallowwood, removed. She attended mediation with her neighbours, Mr and Mrs Loxton (‘the respondents’), in July 2015. The Loxtons have owned the neighbouring property since early 2014. Ms Ahern had also tried to reach an agreement regarding the trees with the previous owner of the Loxtons’ property.

3. At mediation an agreement was reached, with an undertaking from the Loxtons that they would remove both trees once permission was gained from Ku-ring-gai Council. Oddly, a subsequent application for tree works at their property did not seek orders for removing the trees, but mentioned Ms Ahern's concerns. Council granted a permit to remove other trees on the property, and to prune these two trees. Pruning works have been carried out.

4. Pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), Ms Ahern applied to the Court seeking orders for the Loxtons to remove both trees. The Court’s jurisdiction does not extend to enforcing the agreement reached by the parties at mediation. Rather, the Court must determine if the trees have caused damage, are causing damage, or are likely in the near future to cause damage, to the applicant’s property. The Court must also consider a range of relevant matters before making appropriate orders.

Damage

5. At the onsite hearing, Ms Ahern pointed out or described the following damage:

• Lifting of a paving slab at the rear of the dwelling, resulting in an uneven surface and the slab being pushed away from the brick wall of the dwelling.

• Damage to bricks at the rear of the dwelling.

• Roots entering and damaging a drainage inlet and pipes at the rear of the dwelling.

All of the above is alleged to be caused by roots of the Redwood. Damage alleged to be caused by the Tallowwood includes:

• Roots growing into pipes and growing into the toilet.

• Cracking to the garage slab.

• Lifting of parquetry floor inside the dwelling.

Causation

6. No roots were uncovered or were visible at the onsite hearing. The applicant relies on the physical evidence of the damage, the assumption that nothing else can be causing the damage, and that the nearest and largest trees must be responsible. She also relies on an engineer’s report obtained in April 2015. In that report Mr Geoff Hopkins, engineer, states that roots from the two trees are the cause of damage, but gives no explanation as to what investigations he carried out (it appears there were none, beyond physically looking at the damage I have described above) or how this conclusion was reached. The report does not assist the Court.

7. There is no dispute that the parquetry floor is lifted, or that the garage slab is cracked. However, despite observing the damage, I cannot be satisfied, to the extent required at s 10(2) of the Trees Act, that the two neighbouring trees have caused the damage. Apart from the engineer’s report, which does not assist the Court, and despite getting legal advice, Ms Ahern has provided no evidence that tree roots are the cause of damage. A letter from her plumber states that roots were found in pipes and in the toilet, but this does not demonstrate that other damage is caused by the trees. (Regarding those pipes, Ms Ahern says all old terracotta pipes have now been replaced with PVC pipes.)

8. Ms Ahern says Tallowwood branches have fallen on her roof, damaging tiles and causing water damage to her ceiling. She provided no evidence of this. There is no dispute that a large limb fell from the Redwood on to her dwelling in 2011, but that occurred prior to the Loxtons purchasing their property.

The trees

9. Both trees are approximately 20 metres tall. They appear to be in good health The Redwood is adjacent to the common boundary, approximately two metres from the Ahern dwelling. The Tallowwood is across the Loxton driveway, approximately 6 metres from the Ahern dwelling. No arboricultural evidence was given that either tree has major faults requiring corrective pruning. The Loxtons state that they will undertake regular pruning as required. With the arboricultural expertise I bring to the matter, I do not see that tree branches are likely to cause damage in the near future.

Consideration of other matters

10. The Court is required to consider other relevant matters (s 12 of the Trees Act), including steps taken by the parties to prevent or rectify damage. The mediation agreement was not acted on by the Loxtons. However, since Ms Ahern filed her application under the Trees Act, Mr Loxton has suggested that the parties obtain a joint arboricultural report, which might shed more light on the cause of the damage and any level of involvement of the trees, and follow its recommendations. The applicant has declined. Mr Gorrie, solicitor for the Loxtons, suggested that the Court could order the parties to obtain such a report. Considering the applicant declined the earlier suggestion, I see no reason for making such an order. The onus is on the applicant to demonstrate causation. Furthermore, as I am not satisfied that causation is demonstrated, the Court has no jurisdiction to make such an order anyway.

Conclusion

11. As a result of the above, it follows that the Court’s jurisdiction is not enlivened and that orders will not be made. If circumstances change, Ms Ahern can make a new application to the Court, as explained in Hinde v Anderson and anor [2009] NSWLEC 1148.

Orders

1. The application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 02 September 2016