Brown v Baker

[2024] NSWLEC 1124

Land and Environment Court

New South Wales

Medium Neutral Citation:

Brown v Baker [2024] NSWLEC 1124

Hearing dates:

13 March 2024

Date of orders:

13 March 2024

Decision date:

13 March 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is granted to the extent of the following orders.

(2) Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to replace or repair all parts of the common boundary fence within 1 metre of the tree, or as required, so that the fence is in alignment with the remainder of the fence, of a standard similar to or better than the remainder of the fence, and with at least 50 mm clearance between all parts of the fence and all parts of the tree.

(3) The respondent is to give the applicant 7 days notice of the works in Order (2).

(4) The applicant is to allow all access for the works in Order (2) during reasonable hours of the day.

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

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether tree removal is required – orders for fence repair

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12

Cases Cited:

Hinde v Anderson [2009] NSWLEC 1148

Category:

Principal judgment

Parties:

Michael Brown (Applicant)
Kerry Baker (Respondent)

Representation:

Counsel:
M Brown (Self-represented) (Applicant)
K Baker (Self-represented) (Respondent)

File Number(s):

2023/425699

Publication restriction:

Nil

Judgment

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

Background

1. COMMISSIONER: Michael Brown (the applicant) and Kerry Baker (the respondent) are neighbours in Granville. Mr Baker has a well-vegetated back garden that includes a large, mature white cedar (Melia azedarach) (the tree) that spreads over Mr Brown’s back yard. The tree is close to the timber paling fence on their common boundary. Several fence palings are shorter than others, to allow for large parts of the tree that spread across the boundary. Despite this, as the tree has grown it has pressed against parts of the fence, pushing it out of alignment. Mr Brown has two sheds and some paving on his yard near the tree. External paving has been lifted by tree roots. Paving within his smaller shed has been lifted by tree roots and Mr Brown has noticed movement of pavers in the floor of his larger shed.

2. Mr Brown applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the tree to be removed and for the damaged section of the fence to be repaired. He seeks no orders for repairs to his paving.

3. Mr Baker appreciates the tree’s amenity and wishes to retain it. In his alternative orders, he proposed engaging a contractor himself to repair the damaged sections of the fence.

4. The hearing took place onsite, allowing the Court to observe the tree, property damage, and all relevant issues. Mr Baker provided a report from Catriona Mackenzie, a consulting arborist.

Framework for this decision

5. The key jurisdictional tests in these proceedings are found at s 10 of the Trees Act:

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b) is likely to cause injury to any person.

6. If the tests at s 10 are satisfied, the Court must consider a range of matters at s 12 of the Trees Act before determining the application. Mr Baker does not dispute that his tree has caused damage.

Reasonable effort to reach agreement

7. As in many tree disputes, these neighbours are not on friendly terms and have avoided speaking directly to each other for a few years. Mr Brown did not contact Mr Baker about property damage, but thought it best to use the Community Justice Centres’ (CJC) mediation service. When Mr Baker received correspondence from the CJC, he thought it related to the parties’ ongoing dispute about guttering, and saw no point in responding. After being served a copy of Mr Brown’s application to the Court, Mr Baker himself sought mediation via the CJC. Given that the proceedings had commenced, Mr Brown thought it best to continue along that path and declined mediation. The Court has set a relatively low bar for the test at s 10(1)(a) of the Trees Act. Given the nature of the relationship between the parties, I find that Mr Brown made a reasonable effort to reach agreement with Mr Baker.

Damage

8. That the tree’s stem and branches have displaced the fence is clear to any observer and is not disputed by Mr Baker. That the tree’s roots have displaced pavers is also apparent to any observer and is not disputed by Mr Baker. The Court can make orders to remedy, restrain or prevent damage.

The boundary fence

9. Mr Baker presented two options for repairing the fence while retaining the tree. Firstly, the fence’s alignment could remain on the boundary, with its parts adjusted where necessary to provide some clearance around the tree to allow for some further growth. Alternatively, a section of the fence could pass around the tree by being located on Mr Brown’s property. Mr Brown explained that he does not want the fence on his property and submitted it should remain on the boundary. I accept that this is the better option if the tree is retained.

The paving and the sheds’ floors

10. The paving and sheds are Mr Brown’s own work. External pavers, and pavers that form the floor of the smaller shed, appear to be laid on the ground or a thin base. They have been easily displaced by large surface roots of the tree. Ms Mackenzie suggested that the floor of the larger shed might be constructed on a poorly prepared base. Mr Brown refuted this and provided photos taken during its construction showing a well-compacted base with a layer of sand over that and then the paving. Ms Mackenzie pointed out timber edging that was falling away around the shed. Mr Brown submitted that the early signs of paver displacement within the larger shed result from roots growing beneath the floor rather than edging boards moving.

Consideration of other matters

11. I have considered the tree’s benefits and find they are significant. Its broad canopy provides ecosystem services including shading and cooling; it contributes to the respondent’s landscape and to the local neighbourhood character. The elements of property damage, and the work required to repair that damage, are relatively minor, so do not, in my mind, justify the tree’s removal. Should circumstances change, Mr Brown could make a new application to the Court: see Hinde v Anderson [2009] NSWLEC 1148.

12. No compensation is sought by Mr Brown. Mr Baker could see the fence displacement, but was apparently unaware of elements of damage caused by the tree’s roots. He is now aware of the possibility of future damage. He may remove the tree if he wishes, subject to relevant controls within Cumberland City Council.

13. As a result, orders will only be made for repairing the fence.

Orders

14. The Court orders:

1. The application is granted to the extent of the following orders.

2. Within 60 days of the date of these orders, the respondent is to engage and pay for a fencing contractor to replace or repair all parts of the common boundary fence within 1 metre of the tree, or as otherwise required, so that the fence is in alignment with the remainder of the fence, of a standard similar to or better than the remainder of the fence, and with at least 50 mm clearance between all parts of the fence and all parts of the tree.

3. The respondent is to give the applicant 7 days notice of the works in Order (2).

4. The applicant is to allow all access for the works in Order (2) during reasonable hours of the day.

5. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 15 March 2024