Bennett (as Trustee for Access Family Trust) v McLoughlin - [2013] NSWLEC 1259

Land and Environment Court

New South Wales

Medium Neutral Citation: Bennett (as Trustee for Access Family Trust) and anor v McLoughlin [2013] NSWLEC 1259
Hearing dates: 11 September, 8 & 15 November 2013
Decision date: 24 December 2013
Jurisdiction: Class 2
Before: Moore SC
Galwey AC
Decision:
1.The application is dismissed; and
2.The exhibits, other than Exhibit A, are returned.

Catchwords: Satisfaction of jurisdictional prerequisites; Presence of damage; Identification of roots; Adequacy of design for construction near a tree
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Barker v Kyriakides [2007] NSWLEC 292
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336)
Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riordan & anor [2011] NSWLEC 1009
Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280
Zangari v Miller (No 2) [2010] NSWLEC 1093
Category: Principal judgment
Parties: C A Bennett as Trustee for Access Family Trust (First Applicant)
S Teh (Second Applicant)
B McLoughlin (Respondent)
Representation: Second Applicant in person
Mr P O'Brien, solicitor
N/A (Applicants)
Harris & Company (Respondent)

File Number(s): 20444 of 2013

Judgment

Introduction

COMMISSIONERS: In the rear garden of a property on the southern side of a quiet suburban street in Rozelle grows a very large (but not yet fully matured) Wallangarra White Gum, Eucalyptus scoparia (the tree). The tree is approximately 10m high and has a canopy spread of some 10 to 15m. The applicants contend that the roots of this tree have caused and continue to cause damage to their property, the property to the south of that upon which the tree is growing. The nature of the damage is described later in this decision. The applicants and the respondent each engaged experts in tree matters to provide expert evidence in these proceedings. To assist the applicants, they engaged Mr John Ford, a consultant botanist, and, for the owner of the tree, Mr Hugh Taylor, an arborist. They are in agreement about the appropriateness (or otherwise) of such a tree growing in close proximity to dwellings. Mr Ford said in his written statement:

From my experience and knowledge, trees of this nature are entirely unsuitable in such close proximity to dwellings, and this case, as close as approximately 3 m from the house at [the applicants' address].

Mr Taylor, agreed with this proposition but also said:

However the tree is approximately 40 years old and was in situ when the Development Application for the extension and modifications to [the applicants' address] was granted.

The matters raised in the application

The applicants base their application pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) on five instances that are said to satisfy one or more of the jurisdictional tests discussed below. These five matters are:

Cracking to a rendered brick wall located on the common boundary between the applicants' property and the property upon which the tree is located;
The depositing of dark resinous material on a glass roofed area over a portion of the rear upstairs balcony of the applicants' dwelling;
Cracking in the brick dividing wall on the southern side of the applicants' property between that property and neighbouring properties (on the side of the rear yard away from the property where the tree is located);
Cracking of the concrete slab (and its surface treatment) in the lower ground floor area of the property, this being a slab that was constructed as part of an extensive process of renovations of the applicants' property in 2009 (renovations that were given approval by Leichhardt Council at an earlier time); and
The intrusion of roots into a section of pre-existing earthenware sewer line where such roots are said to have caused blockages of the sewer on two occasions (March 2012 and August 2013).

The site inspection

We undertook a site inspection of the applicants' property and the property upon which the tree is located. During the course of the inspection, we were able to observe the cracks in the slab of the lower ground floor level and the wall on the northern side of the rear yard of the applicants' property. There was, at the time of inspection, no resinous material on the glass awning or the shuttered aluminium doors. No root material was presented to us for examination during the course of the site inspection. We also had the opportunity to inspect the tree and the rear yard of the property upon which it is growing. From the rear lane to the west of both properties, we were able to look up and see the extent of the canopy spread of the tree and its contribution to the greenery in the local landscape.

During the course of the site inspection, we were accompanied by the five experts engaged by the parties (the two tree experts noted above; Mr Melinz, the applicants' architect (who is also a qualified builder), and two structural engineers, Mr Paheerathan for the applicants and Mr Candarakis for the tree owner. Each of these experts gave informal evidence during the course of the site inspection on aspects of what was observed as it related to various elements of the application. We have carefully considered this evidence in addition to those matters traversed in their written and in court oral evidence.

The relevant jurisdictional tests

The Trees Act provides a legal framework within which, amongst other things, an applicant can seek remedies with respect to a tree on adjoining property if that tree has, is or is likely in the near future to cause damage to the applicants' property (see s 10(2)(a) of the Trees Act).

It is necessary for the Court to be satisfied, on the balance of probabilities to the degree of comfortable satisfaction appropriate under the circumstances of the particular application (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) that, relevantly, one or more of these tests is satisfied before any orders for intervention with or removal of the tree can be contemplated or any order for compensation or rectification may be considered.

At least one of these three relevant jurisdictional facts needs to be established with respect to each alleged element of damage before that alleged element of damage can engage the provisions of the Trees Act.

It is, however, sufficient for one test to be satisfied on any single one of the matters raised for the Court's jurisdiction to be engaged generally with respect to the tree.

The satisfaction that one of these jurisdictional facts exists on any single one of the matters raised is a necessary prerequisite to be established before it is possible to engage with and undertake the balancing of the various discretionary matters that are set out in ss 9 and 12 of the Trees Act before determining what orders, if any, are an appropriate outcome concerning the alleged damage.

Process for consideration of the five matters raised

We therefore propose to address each of the five matters raised by the applicants by considering the jurisdictional tests and, if we have concluded that at least one of the tests in s 10(2)(a) of the Trees Act is satisfied concerning that matter, then to consider such discretionary matters arising from ss 9 and 12 as may be engaged by that element of the application.

The cracking in the northern wall of the rear yard

Consideration of the jurisdictional tests

This wall divides the properties of the applicants and the respondent and is between the rear yards of each property. The cracking to this wall is principally in the vicinity of a pair of engaged piers at a point where a modest articulation of the wall occurs (rather than it being constructed in a continuous straight line) although there is also other cracking closer to the dwellings.

As we have earlier noted, we have had the advantage of expert evidence from two structural engineers. They differed, significantly, on the question of causation of the cracking of this wall. We also observe that we have no evidence concerning the state or adequacy of the footings of this wall (nor those of the southern wall of the rear yard of the applicants' property).

In addition to the cracking in the rendering of the northern wall, during the course of the site inspection of the property upon which the tree is located, we observed that one of the engaged piers had, on the respondent's side of the wall, a wooden post fixed to it by masonry anchors with that post supporting the eastern end of a foldout clothesline. We observed horizontal cracking of this pier at several courses of bricks above the ground but below the bottom end of the wooden post. This cracking is consistent only with rotation of the pier rather than vertical displacement of it (as would be the case if the wall were being lifted and cracked by tree roots growing underneath it).

The cracking, the experts agreed, is, at this time, merely cosmetic and not structural.

The evidence of Mr Paheerathan was that the rotational cracking in the vicinity of this post was not likely to have been caused by any load transferred to the pier by the clothesline and its supporting post. We did not understand Mr Candarakis disagreed with this position. It was Mr Paheerathan's position that the cracking of this wall was caused by the roots of the tree.

On the other hand, Mr Candarakis expressed the opinion that the cracking was caused by what he called "brick growth", a phenomenon that occurs in new brickwork as the bricks expand slightly, over time, after they are erected. He considered this phenomenon was present because portion of the old brick wall had, closer to the applicants' dwelling, been replaced with new brickwork that had been erected as part of the renovations in the recent past. In support of this proposition, he pointed to the fact that the cracking was generally uniform in nature from top to bottom and that that was, in his opinion, consistent with lateral forces impacting the brickwork rather than of a vertical displacement. Finally, we understood the evidence of Mr Candarakis to be that the brickwork would stabilise over time thus diminishing (if not eliminating) the likelihood of further brick growth phenomenon occurring.

There was no appreciable or significant difference in appearance or width in any of the lower and upper elements of the cracking.

Mr Paheerathan relied on the evidence of Mr Ford (Exhibit B) as to the presence of tree roots through and/or under this wall as providing evidence of the cause of the cracking. There also is a photo forming part of the material attached to Mr Melinz 's report (Exhibit H photo MKA 002) that shows tree roots penetrating, from the direction of the tree, under this wall. Mr Ford also excavated the more recent landscaping (placed after extensive root clearing of the rear yard by the applicants) to find several small roots growing from the direction of this wall. He undertook a tissue analysis of samples from these roots and identified them as Eucalyptus sp. He analysed three other samples taken randomly from a pile of other roots removed by the applicants during the earlier clearance of their rear yard - these roots were also shown to be from a eucalypt (Exhibit B at 11 and 12 and photos 7 and 8).

The fact that the cracking of the pier observed from the tree side of the fence is of a rotational nature provides evidence of lateral displacement supportive of the proposition advanced by Mr Candarakis. The presence of tree roots, however, provides evidence that such roots are also likely to have contributed, at least to some extent, to the cracking of this wall. As a consequence, we consider that both explanations are valid and the cracking has been caused by a combination of the two hypothesised causes.

We consider it likely, from a combination of the lateral displacement of the rotated pier and the generally vertically uniform nature of the cracking, the predominant cause of the past damage has been brick growth. It is not necessary to quantify precisely the extent to which we consider that the tree's roots have contributed to the damage to this wall - as it is sufficient, for the first of the jurisdictional tests, to be satisfied that the tree has made some contribution to the damage to this wall.

Discretionary considerations

The establishment of one jurisdictional pre-requisite then brings us to the consideration of the relevant discretionary factors in order to arrive at a conclusion as to whether or not, for this reason alone, we ought to order any intervention with or removal of the tree.

There are, in considering the weighing of discretionary matters under ss 9 and 12 of the Act on this point, a number of specific points that should be noted. These are, in summary:

We are satisfied that the damage to the wall has been caused by a combination of brick growth and tree root pressure;
As the cracking of the wall that is visible from the applicants' property is generally uniformly sized from top to bottom, it is likely that the dominant cause of damage is brick growth;
The uniform and primarily lateral, rotational damage to the brick pier observed on the side of the wall where the tree is located leads to a similar conclusion;
The cracking of the wall that is visible from the applicants' property is of small width;
The damage to the wall on the applicants' property is cosmetic;
There is no risk of structural failure - a position agreed by the structural engineers; and
The tree makes a significant visual contribution to the local landscape, particularly when viewed from the rear lane.

Balancing all of these matters, we are unable to conclude, as a matter of discretion, that the extent of such contribution as may have been made by the tree roots to the cracking of this wall warrants any intervention with (let alone any order for removal of) the tree because any order for intervention with the tree (or the removal of the tree) would be entirely disproportionate to the extent to which the tree might have contributed to purely cosmetic damage to the wall - damage that, itself, poses no risk of structural failure of the wall.

The above consideration, of course, has been with respect to this single aspect of the matters raised by the applicants and, had we found that any of the jurisdictional tests were satisfied with respect to any of the other matters about which the applicants complain, it would have been necessary for us to consider whether multiple issues that satisfied the jurisdictional tests in s 10(2)(a), although not individually warranting intervention with or the removal of tree, did so on an aggregated basis.

Given the conclusion that we have reached that the damage to this wall is the only aspect of the application where any necessary jurisdictional tests has been demonstrated as being met to enable us to have the necessary degree of comfortable satisfaction that the jurisdiction of the Court should be enlivened, it is unnecessary to consider issues of aggregation in determining whether any orders should be made with respect to this tree.

However, we also discuss below, at paragraph (97), the broad propositions that would arise in future if some further application were to be made concerning this tree.

The resinous deposits

Consideration of the jurisdictional prerequisites

There is no dispute that the resin has been deposited on the glass awning and aluminium shuttered doors as claimed by the applicants. The building report prepared by Mr Melinz depicts it (Exhibit H photo MKA 014). His report deals with this in two places. In the summary of findings, at 5.4, Mr Melinz wrote:

There has been cosmetic damage to the applicant's property: resinous deposits have recently been cleaned off glass and metal roofs, and aluminium shuttered doors, and down pipes have been sporadically blocked.

In the body of the report, under the heading General Notes On The Condition Of The Property And Damage Observed Over Time (since mid-2010), Mr Melinz wrote, at 7.5:

Resinous deposits on roofs and doors: since 2011, black resinous waste has been deposited on the glass and metal roofs leaving unsightly stains. A professional water blaster was called in to remove the stains in April 2013. (MKA 015).

Although described by Mr Melinz as cosmetic damage, there is no evidence, after the water blasting to remove this material, that any actual permanent damage or ongoing stains had been occasioned to any element of the applicants' house or structures associated with it.

In Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280, Preston CJ observed, at (172), when discussing the detritus dropped from trees that:

............ there is no power to make an order in relation to the tree unless such debris of the tree "has caused, is causing, or is likely in the near future to cause damage to the applicant's property" on the land.

In this instance, there is no indication that, apart from the inconvenience of and cost to the applicants of cleaning of the resinous material from the surfaces upon which it has been deposited, any actual permanent damage has been occasioned to the applicants' property. As a consequence, in the absence of such demonstrated damage, there can be no satisfaction of any of the jurisdictional tests in s 10(2)(a) of the Trees Act to provide us any basis upon which we can order any intervention with the tree as a consequence of the depositing of this resin.

Discretionary considerations

Although we are satisfied that our conclusion on the absence of jurisdiction on this aspect of the application is unassailable, for abundant caution we observe that, in Barker v Kyriakides [2007] NSWLEC 292, the Court established a tree dispute principle that, as a matter of discretion, the dropping of leaves, flowers, fruit, seeds or small elements of dead wood by urban trees ordinarily will not provide the basis for removal of or intervention with an urban tree.

The basis of that tree dispute principle is that those who have the environmental and aesthetic benefits of trees in urban areas, as a matter of social equity, should be expected to undertake the necessary maintenance tasks associated with having those trees.

Although we do not consider that any formal expansion of the tree dispute principle in Barker is necessary as a consequence of this case (given our finding that there has been no damage and is thus no jurisdiction for this element of the applicants' complaints), had there been any damage demonstrated, we would have still, as a matter of discretion, applied the tenor of that which was set out in Barker and that, as a matter of discretionary consideration, the depositing of the resinous substances would have provided no basis upon which to make any order with respect to the tree.

The cracking in the southern wall of the rear yard

Consideration of the jurisdictional tests

One of the photographs contained in Mr Melinz 's report (Exhibit H photo MKA 005) shows a large tree root leading from the centre of the applicants' rear yard toward the southern boundary fence. This root has been partially severed and the extent of the root in proximity to the wall is obscured by a large pile of paving bricks and other discarded building materials. This photograph is reproduced below.

This root had been removed by the applicants as part of the landscaping of their rear yard. During the course of the in court evidence from Mr Ford and Mr Taylor, Mr Taylor was asked to examine a photograph in a supplementary bundle of photographs (Exhibit K) that had been tendered on behalf of the applicants. That photograph is reproduced below.

Mr Taylor, on page 5 of his statement of evidence (Exhibit 1), responded to a number of photographs that had been provided to him showing roots that had been discovered by the applicants when the brick paving that had covered the soil surface of the rear yard had been removed. Mr Taylor said, amongst other things:

Other roots were located on the southern side of the applicant's property adjacent to the single brick boundary fence between the applicant's property and the Northern property boundary of [the adjacent property]. It was observed by the author at the August 2013 site inspection that two (2) Casuarina tree species approximately 12 m in height were growing within the rear of [the property second removed to the south].

These trees are located approximately 5m - 7m from the southern boundary of the applicant's property. There were no trees within the rear of [the adjacent property] adjacent to the applicant's property. The Eucalyptus scoparia (subject tree) is also located approximately 7m from the southern boundary of the applicants property therefore there is a strong possibility that some roots located adjacent to the southern boundary of the applicant's property have originated from the Casuarina trees.

Mr Ford was asked, in light of what appeared to be a number of feeder roots attached to this root and its proximity to the cracking of the boundary wall with the neighbouring property to the south, whether it was possible that that root was, in fact, a root from one of the Casuarina trees located two properties away to the south, being trees to which Mr Taylor had referred.

After his examination of the second of the photographs reproduced above, Mr Ford concluded that it was possible that the large root depicted in the photograph could be a root from a Casuarina growing in a northerly direction rather than a root from the Wallangarra White Gum.

When the hearing resumed in early November, the applicants were permitted to rely on a supplementary statement of evidence (Exhibit T) prepared by Mr Ford. For the purposes of this decision, it is necessary to reproduce paragraphs (3) to (7) and (20) of the supplementary report (unusually, there are no paragraphs numbered between (8) and (19) inclusive in the document).

3. My brief was to re-examine a photograph, labelled PH - 021 in a report tabled as exhibit "K" in the Land and Environment Court hearing of 11 September 2013, under higher magnification than that presented in the report. In the light of the more detailed examination I was asked to determine then if it were possible to maintain my opinion outlined in section 4 below.

4. Under questioning by Senior Commissioner Tim Moor (sic), I was requested to give my opinion as to whether I agreed that structures in photograph PH - 021 appeared to be feeder roots emanating from the main root and that the orientation of the structures was towards the camera, that is, towards the north which would indicate that the roots were growing from the south. At that time, examining the photograph at the particular magnification presented, I did agree that the structures appeared to be feeder roots emanating from the main root and that the orientation was towards the viewer.

5. For the purpose of my brief I again examined photograph PH - 021 (see photograph, APPENDIX B labelled Photograph 1). This photograph is at the magnification viewed in Court. However, as the photograph supplied to me was in digital form, I was able to magnify it (see photograph 2). At the magnification shown I now doubt that the structures referred to are attached feeder roots. There is a lot of debris which I do believe is root material but it is not possible to determine beyond doubt if any of that root material is attached to the large root or merely severed material with one end lying under the large root. There may possibly be two, attached feeder roots, one on the right side of the large root, towards the viewer and one on the left side of the large root, further away from the viewer. The one closer to the viewer could be oriented towards the viewer, that is to the north, or perhaps down and the one, further away from the viewer, is oriented away from the viewer, that is, to the south. As the orientations are in opposite directions, no firm conclusion as to the direction of growth can be drawn from this.

6. Another possibility that might be construed as a side root in photograph PH -021, exhibit "K", is just before the point where the large root appears to have been severed. Under higher magnification (see photograph 3), this appears to be almost certainly damage to the root consistent with what might be a slicing effect from a shovel or spade.

7. In addition to photograph PH - 021, I have also been asked by the applicant to examine a photograph supplied to me in digital form by Steven Teh (see photograph 4). This photograph, according to Steven Teh is to appear in a further report by the witness, architect Melinz Melinz and I am advised is a photograph of the same root, taken in the same set as photograph PH - 021 and immediately prior to it before subsequent further disturbance. At higher magnification (see photograph 5), what appears to be a side root can be clearly seen. The orientation of the apparent side root is away from the viewer, that is, towards the south which would indicate the direction of growth is towards the south. However, as with the other possible subsidiary or feeder roots, it is not possible to determine beyond doubt if it is attached to the main root.

CONCLUSIONS

20. It is now my opinion, after examining photograph PH - 021 at higher magnification, that it is not possible to say with sufficient certainty that the structures in photograph PH - 021 are feeder roots attached to the large root and hence that their orientation towards the viewer would indicate that the direction of growth was towards the north. In any case, if the structures are indeed attached feeder roots their orientation is both toward and away from the viewer which precludes any firm conclusion as to the direction of growth.

To enable an understanding of this evidence, it is necessary to reproduce the photographs referred to in this Exhibit. Photograph 1 was also reproduced earlier after paragraph (37) of this judgment.

Our conclusions concerning whether or not we can be satisfied that this root is from the Wallangarra White Gum and thus support the necessary inference that arises from the applicants' submissions that the only roots under the applicants' property at any relevant time are roots of this tree and cannot be from any other tree (such as one of the Casuarinas) is a matter that is critical not only on this issue but also with respect to the roots that are alleged to be causing damage to the slab within the room in the lower ground floor of the applicants' property and the roots that were photographed in the applicants' sewer line.

We observe that the root that is the subject of this detailed analysis in Mr Ford's supplementary statement was also the subject of a supplementary statement from Mr Melinz setting out the provenance of these photographs, photographs that were taken on 11 January 2013.

The relevant element of Mr Melinz 's supplementary statement (Exhibit S) dealing with this tree root is in the following terms:

30mm root running generally North - South in middle of backyard & position of cracking in South boundary wall

14. There was a second large root approximately 30mm in diameter running to the South boundary wall (shared with 10 Rosser St) and under it.

15. The root noted above was discussed during the hearing on 11 September 2013, and the question was raised if there was a feeder root from the main root, and that it may be moving from South to North (Exhibit "K" - PH-021).

16. This root was located near, and appeared to be heading towards the South boundary wall. The root was pulled out by hand.

17. It appeared to me that the closer this root was to the South boundary wall the diameter was smaller. We started in the centre of the garden as one of the concrete pads was to be poured there, so we severed the root somewhere in the middle.

18. This root did not divide into smaller roots from the South to North. I recall hacking and digging a single root that was thicker the closer it was to the North wall. From the photograph, it appears to divide into a smaller root as it reaches the South wall (Annexure "A - PHOTOGRAPHS" - Photo - AM02: 30mm Root (AM02)).

19. This photo was taken approximately ten seconds before PH-021 in Exhibit "K" and so the smaller root heading to the South wall was still intact when it was taken. One of us was still pulling out the root while the other was taking photographs.

20. In photo PH-021, taken 10 seconds later, we had already pulled the root up and further out of the ground. Many of the attached smaller roots had been dislocated or moved as a result. The position of the root has also changed from AM02.

The photographs appended to Exhibit S with the verifying timing information are also reproduced below:

It has been necessary to reproduce this material at some length because the question of whether or not we can be satisfied with the necessary degree of comfortable satisfaction that this root is a root from the Wallangarra White Gum goes on to the heart of three elements of the application.

The question of whether or not we can conclude, in these proceedings, that, on the balance of probabilities the damage to the southern area garden wall; damage to the concrete slab (taking applicants' case at its highest - that that damage has been caused by tree roots) and to the sewer line must have come from roots of the Wallangarra White Gum rather than from roots of one of the Casuarinas is fundamental to the applicants' complaints on these three matters.

In this context, we will have carefully read the additional material contained in Mr Ford's supplementary statement in conjunction with what is depicted in the photographs appended to that statement.

We make the observation that Mr Ford has not retracted his concession from his oral evidence that it is possible that this root is a Casuarina root emanating from under the southern wall. Indeed, the nature of the conclusion that is set out at (20) of his supplementary statement, in our view, expressly leaves open the possibility that this root may not be a root from the Wallangarra White Gum.

We have also closely examined the photographs that were were attached to his supplementary statement in light of his assertion, in (6), that that which is depicted appears to be almost certainly damage to the root consistent with what might be a slicing effect from a shovel or spade.

We are unable to come to the same conclusion. There is no sign of differential colouring on the element of the larger portion of root structure that would be the face toward the smaller element had this root been sliced at that point. There is nothing in the photograph that demonstrates any exposure of internal root wood where the slicing is alleged to have occurred. Indeed, those elements in the photograph are consistent with each element being fully bark covered. It would seem to us that, on this basis, it is not possible to reject the very real likelihood that this is a junction point of two, quite substantial, roots with that junction point demonstrating that the root is, in fact, one that emanated from the south rather than from the north. Indeed, despite Mr Ford's conclusion on this point, we are satisfied that the better view remains that this a depiction of a junction point where a smaller (but nonetheless substantial) root departs from and grows toward the north from a larger root growing to the north - being a root from a Casuarina.

We have also carefully considered the material that was contained in Mr Melinz 's supplementary statement as extracted and set out above. We make three observations with respect to it.

First, although Mr Melinz made a comprehensive initial statement, none of this material was adverted to in that statement - let alone contained in it (despite the fact that, self-evidently, the root that has been the subject of this discussion is obviously the root that has caused the cracking of the wall on the southern side of a rear yard, one of the specific elements of the claim pressed on behalf of the applicants).

Second, the assertion in (18) of his supplementary statement that the root did not divide into small roots from south to north, although made in absolute terms, is contrary to the express conclusion we have reached from such photographic evidence as is available to us, particularly from photograph 3 of Mr Ford's supplementary report.

Finally, his assertion in the third sentence of (18) that this root appears to divide into a small root as it reaches the south wall is nonsensical as the photo does not depict this root as it reaches the southern wall - it remains buried under a pile of pavers and other building materials. This assertion must also be viewed in light of the analysis made by Mr Ford in his supplementary statement concerning feeder roots.

There is no observable division, in any substantial fashion, of this root as it travels near the south wall and there is no photographic evidence in the proceedings whatsoever of this root as it reaches the south wall.

Even taking Mr Ford's broad conclusion concerning feeder roots at its highest, as set out in his (20), those conclusions do not sufficiently displace the reasonable possibility that this large root has originated from the south. When taken in conjunction with that which we have set out concerning our analysis of his photograph 3, we are satisfied that it remains appropriate to conclude that this major root originates from the southern side of the southern wall.

It follows, on the basis of our analysis of such evidence concerning this root as is available in these proceedings - the photographic materials discussed above; Mr Ford's concession during the course of his oral evidence; the fact that the conclusion in Mr Ford's supplementary statement is equivocal and does not withdraw or resile from the possibility that this root is a root from one of the Casuarinas and the deficiencies in Mr Melinz's belated evidence concerning this root when coupled with the conclusions that we have drawn from photograph 3 appended to Mr Ford's supplementary report - that we are satisfied, on the balance of probabilities, on this evidence, with the necessary degree of comfortable satisfaction required in light of the consequences of such a conclusion, that the root causing the damage to the wall on the southern boundary is a root of one of the Casuarinas located on the property second to the south of the applicants' property.

It further follows from that conclusion concerning this specific element of the applicants' claim that a broader general conclusion must also follow. That conclusion is that it is not possible to be satisfied that all tree roots that are or may have been present on the applicants' property are roots that emanate from the Wallangarra White Gum.

It is, however, a necessary prerequisite of the two remaining elements of the applicants' claim that are discussed below, for us to have concluded that the only roots that could be present on the applicants' property are, on the balance of probabilities with the necessary degree of comfortable satisfaction in light of the potential consequences of such a finding, roots that emanate from the Wallangarra White Gum.

The further consequences of us not being able so to conclude are also discussed below in our analysis (necessarily brief in light of our conclusion concerning the presence of at least one substantial Casuarina root on the applicants' property) than might otherwise have needed to be the case.

Discretionary considerations

Given that conclusion that the damage to the southern rear yard wall was caused by a root from one of the Casuarinas, it is unnecessary for us to consider any matters arising under ss 9 or 12 of the Trees Act as the necessary jurisdictional pre-requisite has not been established.

Cracking of the concrete slab and its surface treatment

Consideration of the jurisdictional prerequisites

The concrete slab in the lower ground floor area of the applicants' dwelling was constructed during the recent renovations and alterations to the property. That which was constructed involved, in part, a new, reinforced concrete slab with partial edge beams founded, at least in substantial part, by excavation to bedrock with appropriate sand filling where necessary under the slab.

Mr Melinz, the architect who designed the renovations and alterations, was not engaged to supervise the carrying out of the works. It was, however, his oral evidence that, in preparing his design, no specific design measures were incorporated to have regard to the presence of the Wallangarra White Gum (or any other trees for that matter) in proximity to the applicants' property. Evidence from one of the applicants was that there was complete excavation to bedrock in this portion of the dwelling in preparation for the laying of the slab. Excavation to bedrock, necessarily, required the removal of any tree roots that may have been in this vicinity.

The slab that has been laid is now subject of cracking at a number of locations that were depicted in photographs provided at various locations in the evidence. During the course of the site inspection we had the opportunity to examine this cracking.

The applicants engaged On Point Utility Locating Pty Ltd to undertake, on two occasions, a ground penetrating radar examination of this slab.

In Mr Taylor's statement of evidence he says, amongst other things:

The GPR scan results show only inconsistencies, or the presence of foreign objects under the slab, but do not provide true identification of origin. The botanical report by John Ford identifies tree roots in the rear of the Applicants property as Eucalypt roots and surmises only that the cracking of the slab is attributed to the presence of roots from the respondent's tree. This correlation to the GPR is hypothetical rather than factual.

The ground penetrating radar operator was not available to give evidence - although a person who assisted him during his operations did attend and give evidence of what had taken place and the nature of the ground penetrating radar equipment that had been used. Although this evidence was a helpful summary on these points, it did not assist us, particularly, with the analysis of the information that had been obtained.

The first report of the ground penetrating radar operator was appended to Mr Melinz's statement (Exhibit H) with the operator's supplementary statement tendered as Exhibit Q.

This supplementary statement included a marked up sheet of graph paper showing the location where anomalies were detected during each of these east to west transits of this slab during the ground penetrating radar operation on 26 August 2013. It is not necessary to set out in detail the depth and analysed diameter of each of the anomalies recorded. The location of the anomalies is shown on the plan showing the scan runs reproduced below:

The operator of the ground penetrating radar also prepared another document in which he "connected the dots" and provided that as part of Exhibit Q. However, it is important to note, before we reproduce this document, that this document includes the following notation:

The Points Picked up by On Point Utility Locating Pty Ltd were connected together for no purpose but to gather information for themselves.

There is no suggestion, in Exhibit Q, that these lines have any validity whatsoever of demonstrating linkages between the points. This element of Exhibit Q is reproduced below:

Despite the declaration that necessarily leads to the conclusion that there is no basis, whatsoever, from the ground penetrating radar operation to draw the linkages that have been made in the plan reproduced immediately above, the applicants, and the applicants' structural engineer, Mr Paheerathan, appeared to us to be relying on this diagram to demonstrate that the anomalies located by the ground penetrating radar were, in fact, continuous and they followed the various lines depicted in the diagram.

Whilst we accept that the anomalies detected are only those that are intersected rather than anything that may be running continuously in any linear transition by the scanning equipment, there is no possible evidentiary foundation to demonstrate that the point anomalies are interlinked, let alone interlinked in the fashion suggested by this diagram. Indeed, Mr Paheerathan superimposed his detection of cracking locations on this diagram in order to draw some comfort from these lines that had been drawn.

The disclaimer coupled with the varying depths and sizes of the anomalies that were set out for each of the scan runs (as listed in Exhibit Q) cause us to reject using this diagram for any purpose of linkage demonstration.

However, for the purposes of this analysis, we are prepared to take the applicants' case at its highest on these two bases:

First that the anomalies that have been detected by the ground penetrating radar are, in fact, tree roots; and
Second, that some pattern of linkage, although not necessarily that shown above, would result from that first assumption (despite Mr Taylor's reservations on this point).

On this basis, it still remains necessary for us to reach the conclusion, with the necessary degree of comfortable satisfaction that is required, that these tree roots are, on the balance of probabilities, roots that have come from the tree that is the subject of the application. This is to be considered in light of the fact the anomalies (or at least the parts of them detected in the main element of the slab) are at broadly similar distances from the Wallangarra White Gum and the Casuarinas - it is not possible to be precise on this point as we did not have access to the property upon which the Casuarinas are located.

For the reasons that we have discussed above as providing us with a basis, on the evidence in these proceedings, for concluding that there has been at least one substantial root from a Casuarina present in the applicants' rear yard and that the presence of further roots from a Casuarina cannot rationally be discounted, we are unable to have the requisite degree of satisfaction that, taking the applicants' case at its highest, any tree roots that might be cracking the applicants' slab are, in fact, roots from the Wallangarra White Gum.

It therefore necessarily follows that the relevant jurisdictional pre-requisite cannot be established for this element of the application and it must fail.

Discretionary considerations

If we were wrong in rejecting this element of the application for the reasons we have outlined, it would then be necessary to consider what, if anything, we might order in response to it. In considering this, we have had regard to the following:

There is no evidence that demonstrates that there has been any functional failure of the slab;
The evidence of staining in the vicinity of the cracks is evidence only of cosmetic impact rather than of any loss of functional utility of the slab; and
Suggesting that the slab warrants major rectification works being undertaken to it is entirely disproportionate to any impact that may currently have occurred to the slab.

Having had regard to those matters, we would not consider it appropriate either to order major rectification works to the slab or, in light of the significant local landscape contribution that the Wallangarra White Gum makes, to order any intervention with it let alone order its removal.

On that basis, even if we were wrong about the failure to establish a necessary jurisdictional pre-requisite linkage with the tree, as a matter of discretion this element of the application must fail.

The intrusion of roots into the sewer line

Consideration of the jurisdictional prerequisites

As part of the work undertaken by On Point Utility Locating Pty Ltd, in addition to the ground penetrating radar, the operator ran a video camera along the sewer line from an inspection point. Two photographs from that video formed part of the first report by On Point Utility Locating Pty Ltd that was an appendix to the principal building report prepared by Mr Melinz. The report by On Point Utility Locating Pty Ltd noted that tree root penetration was through two joints in the earthenware sewer pipe.

The first On Point Utility Locating Pty Ltd report identified the location of these as being in the vicinity of the south-eastern corner of the lower ground floor. Subsequent evidence (Exhibit J) showed the general vicinity where the pre-existing earthenware sewer pipe was located under the new slab in the rear of the lower ground floor area. This location was consistent with the location marked in the first report by On Point Utility Locating Pty Ltd of which the photos formed part.

As Mr Taylor observed in portion of his statement of evidence earlier quoted, the location of the tree roots in the sewer pipe is almost equidistant between the location of the tree that is the subject of the application and the Casuarinas on the property second to the south.

Given that we have concluded that at least one significant root from a Casuarina has penetrated the applicants' property and caused damage to the southern rear yard boundary wall, there is no basis upon which we can exclude the possibility that the roots that have been shown to be present in the sewer line could be roots from a Casuarina.

There is no DNA or tissue examination evidence concerning the species of the tree whose roots are present in the sewer line.

As a consequence, there is no basis upon which we can be satisfied, with the requisite degree of comfortable satisfaction under the circumstances, that the roots in the sewer line are roots from the eucalypt.

It therefore follows that none of the necessary jurisdictional bases has been established with respect to this element of the application and thus this element of the application must be rejected.

Discretionary considerations

Further, we observe, had it been necessary to consider whether or not some order should be made on the basis of these roots in the sewer line, it would have been necessary to have regard to the fact that earthenware sewer lines are susceptible to gradual joint failure in their cement jointing and that that failure permits the entry of tree roots when this occurs. As a consequence, it has been the practice, in the past, if replacement of such sewer lines is ordered, that there would be an apportionment of the cost between the applicant and the owner of the tree (to reflect the fact that such joint deterioration is not a matter arising from any failure by the owner of the tree).

Had orders been appropriate, we also note that options such as pipe re-lining are available and such an option inserting a permanent barrier in the pipe removes the necessity for intervention with the tree.

Design standards for construction near trees

In light of the evidence given by Mr Ford and Mr Taylor, with which this decision commenced, pointing to the inherent problems likely to arise from large trees in unsuitable locations, although not arising because of the failure to pass the relevant jurisdictional test, we have considered whether the adequacy of the design standards for this slab in the vicinity of trees located on adjoining or nearby properties might be a relevant discretionary issue.

For the concrete slab that is one of the elements of these proceedings, we are satisfied that no regard was had as part of the design of the slab of the presence of the substantial tree on the adjoining property (oral evidence of Mr Melinz). This was despite the fact that observation of the presence of the Wallangarra White Gum (which at the time, in part, overhung the site) was unavoidable even to a casual observer let alone an architect who might be seeking to observe what design constraints might exist on the site. Similarly, the presence of the Casuarinas, although partially shielded by a dwelling, is also obvious.

As a consequence, had we been satisfied that the damage to the slab was caused by the roots of the Wallangarra White Gum, the failure to take account of the existence of the tree in the designing of the slab meant that, as a matter of discretion, we could have had regard to this in considering whether we should make any rectification orders or any orders for intervention with or removal of the tree. However, given our jurisdictional finding, it is unnecessary to determine what weight (if any) would be appropriate to be attributed to this factor in this case.

Future applications

It is, of course, possible for the applicants to make a further application if circumstances change (see Hinde v Anderson & anor [2009] NSWLEC 1148). However, a further application cannot be made based on additional evidence in support of the present circumstances if that evidence could have been available at the time the present application was being determined (see Zangari v Miller (No 2) [2010] NSWLEC 1093 and McCallum v Riordan & anor [2011] NSWLEC 1009).

Conclusion

In summary, we have concluded that:

The resinous deposits from the tree have not caused any damage to the applicants' property and thus none of the jurisdictional tests in s 10(2)(a) of the Trees Act is satisfied with respect to this aspect of the application;
If we are wrong on this point, as a matter of discretion, we see no reason to depart from the tree dispute principle set out in Barker and, on this basis with respect to this element of the application, it would also fail on this basis;
The damage to the rendered brick dividing wall between the applicants' property and the property upon which the tree is located has been, at least to some minor part, contributed to by roots of the tree (although the tree is not the major cause of the damage) and thus the Court's jurisdiction is engaged;
However, as the damage to this wall is not structural and is purely cosmetic and, in our view, insignificant, as a matter of discretion we do not propose to make any order for intervention with the tree or for rectification of the cracking;
We are satisfied that the cracking of the wall on the southern side of the applicants' rear yard, on the evidence available in these proceedings, was caused by a root from a Casuarina located on a property second to the south rather than from a root from the Wallangarra White Gum and thus this element of the application must fail;
With respect to the cracking of the concrete slab, taking the applicants' case on the causation of the cracking at its highest and assuming that the cracking was, in fact, caused by tree roots, we are not able to be satisfied that the roots causing the cracking are roots from the Wallangarra White Gum and thus this element of the application must fail; and
With respect to the roots in the applicants' sewer line, we are not able to be satisfied that they are roots of the Wallangarra White Gum and thus this element of the application must fail.

In addition to these specific conclusions, we have also set out a broader tree dispute principle dealing with the necessity for structural design to pay regard to possible impacts of trees in the vicinity of a proposed structure at the time that that structure is designed.

Orders

It follows that, as a consequence of all the foregoing, the orders of the Court are:

(1) The application is dismissed; and

(2) The exhibits, other than Exhibit A, are returned.

for

Tim Moore David Galwey

Senior Commissioner Acting Commissioner of the Court

Decision last updated: 16 January 2014

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Citations

Bennett (as Trustee for Access Family Trust) v McLoughlin [2013] NSWLEC 1259

Most Recent Citation

Teh v Dormer [2016] NSWLEC 42

Cases Citing This Decision

1

Teh v Dormer [2016] NSWLEC 42

Cases Cited

6

Statutory Material Cited

1

Briginshaw v Briginshaw [1938] HCA 34

Robson v Leischke [2008] NSWLEC 152

Medium Neutral Citation:	Bennett (as Trustee for Access Family Trust) and anor v McLoughlin [2013] NSWLEC 1259
Hearing dates:	11 September, 8 & 15 November 2013
Decision date:	24 December 2013
Jurisdiction:	Class 2
Before:	Moore SC Galwey AC
Decision:	1.The application is dismissed; and 2.The exhibits, other than Exhibit A, are returned.
Catchwords:	Satisfaction of jurisdictional prerequisites; Presence of damage; Identification of roots; Adequacy of design for construction near a tree
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riordan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	C A Bennett as Trustee for Access Family Trust (First Applicant) S Teh (Second Applicant) B McLoughlin (Respondent)
Representation:	Second Applicant in person Mr P O'Brien, solicitor N/A (Applicants) Harris & Company (Respondent)
File Number(s):	20444 of 2013