Brown v Dawson

[2009] NSWLEC 1039

Land and Environment Court

of New South Wales

CITATION:	Brown v Dawson [2009] NSWLEC 1039
PARTIES:	APPLICANT Noelene Brown RESPONDENT Julie Dawson
FILE NUMBER(S):	20954 of 2008
CORAM:	Moore C - Thyer AC
KEY ISSUES:	TREES (NEIGHBOURS) :-
LEGISLATION CITED:	Threatened Species Conservation Act 1995 Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	21 January 2009
EX TEMPORE JUDGMENT DATE:	20 January 2009
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

21 January 2009

20954 of 2008 Noelene Brown v Julie Dawson

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 .

1 COMMISSIONERS: In the south-eastern corner of the property at 2 Paul Street, Umina Beach a mature Magenta Cherry grows in close proximity to the boundary with 163 Trafalgar Avenue (which is the property to the south and south-east).

2 The owner of 163 Trafalgar Avenue, Ms Brown has applied to the Court for an order for removal of the tree. She has so applied on the basis of damage being occasioned to her property by the roots of the tree that damage being damage to the floor concrete slab of a garage at her property access from a rear lane and damage to pavers located between that garage and her house.

3 We have had the benefit of expert evidence called on behalf of Ms Dawson, the owner of the tree, that expert evidence being both engineering and arboricultural in nature. The tree is years listed as vulnerable under the Threatened Species Conservation Act 1995 and is not listed as endangered. As a consequence of its listing as vulnerable this is a matter which we are required to consider by virtue of the provisions of s 12 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), but its status is not such as to require the consent of the Director-General of the Department of Environment and Climate Change prior to the Court making any order involving interference with or removal of this tree. The consequence of that is that we have proceeded to hear and determine this application on the ordinary basis the Court considers such application but having regard to the fact that the tree involved is a significant specimen of a vulnerable species.

4 We have been provided with written evidence by Ms Dawson and a number of other residents in the vicinity as to the amenity that this tree provides to them, that also being an element that we are obliged to take into account under the Act.

5 A part of this determination process there are two steps which we must undertake. The first is to consider whether the Court has jurisdiction to hear and determine the application. For that to occur, one or more of the four tests set out in s 10(2) of the Trees Act must be satisfied. That is the tree must have caused, be currently causing or be likely in the near future to cause damage to Ms Brown's property or it must be a likely risk of injury to any person.

6 The two elements that are raised by Ms Brown as damage to her property are a cracking in the garage floor and the impact on the pavers between the garage and her house.

7 We turn first to the cracking in the garage floor. The evidence which has been given by Mr Halcrow, a consulting engineer on behalf of Ms Dawson, is that there were, in his original written assessment and confirmed in his oral evidence, three possible causes of the cracking. The first of them was the tree roots. The second was an inappropriate method of construction of the slab and the third related to what he described as construction tolerances when the slab was originally cast. He expressed the opinion that it was unlikely that the cause was the roots of the tree but that it was possible that this was the case.

8 Mr Kingdom, a consulting arborist who has provided a written report on behalf of Ms Dawson also expressed the opinion that it was possible but not probable that the garage floor was damaged by the roots of the tree.

9 We are obliged to be satisfied on the balance of probabilities – that is the civil standard of proof – that the damage to the garage floor was caused by the tree. On the basis of the uncontradicted expert evidence which has been provided to us we cannot be so satisfied. We therefore have concluded with respect to the damage to the concrete floor of the garage that we do not have jurisdiction to consider that matter and that her application in that regard must fail.

10 However, we should consider the prospect that we might be wrong in that regard on the jurisdictional point. Having done, so we have also concluded that the nature of the cracking to the floor which has caused minimal vertical displacement running in an east-west direction across approximately the centre of the garage floor and resulting in cracking 1 to 2 mm wide (in line both across the garage and from that crack to the south) does not cause any trip hazard in the garage and does not appear to be causing any structural inhibition to the ordinary day-to-day use of the garage for any purpose to which it might be put (whether as a workshop or for vehicle parking).

11 As a consequence, if we be wrong about the jurisdictional point, as a matter of discretion – having considered the nature of the damage of which she complains – we are of the view that it would be inappropriate to make any order with respect to that damage taking into account the various beneficial matters to which we have adverted relating to the tree.

12 The similar position as to causation arises with respect to the pavers. First, there is a spear bore which, as Mr Halcrow also acknowledged (subsequent to his earlier evidence) might have been a fourth cause of the damage to the garage as it extracts water partially under the floor of the garage and partially under the paving.

13 There is a point in the paving closer to the tree than a spear bore where Ms Brown has had plants in pots in the past that have been watered. There is evidence of a tree root running along the face of the garage paving interface and there is some minor deformation of various places across the paving. There is, on our observation, however, nothing that would cause us to be satisfied that such distortion that may have been occasioned to her paving has been caused by roots from the tree in preference to any other of the possible causes of the deformation of the paving.

14 As with the concrete slab in the garage, if we be wrong on this jurisdictional point, namely that we could not be satisfied that the tree has caused any damage to the paving, we also observe that there is no significant trip hazard for any of the paving (which is paving which has been laid for some 8 to 10 years on a compacted road-base subsurface) that would cause us, as a matter of discretion, to make any order with respect to the tree as a consequence of the distortion of the paving.

15 Finally however, we did observe, after clarifying an element of Mr Halcrow's report, that the roof of the garage in the vicinity of the tree is of corrugated asbestos sheeting.

16 We raised, with Ms Brown and Ms Dawson, our concern, as a matter of consideration of the likelihood of risk of injury to any person (injury including illnesses and the like), that it was undesirable that branches of the tree should rub against the surface of the asbestos corrugated sheeting on any regular or significant basis.

17 We foreshadowed that we proposed to consider ordering that the tree be kept pruned away from that asbestos sheeting and that that pruning take place at a sufficiently frequent intervals into the future to ensure that there was no reasonable possibility of rubbing against the sheeting. Neither of the parties raised any objection to that course of conduct (although the question was raised by Ms Dawson as to who should be required to do it and who should be required to pay for it).

18 We therefore order that:

1. the tree be pruned so that its foliage will be kept 600 mm clear of the corrugated asbestos sheeting on the garage; and
2. the pruning is to be conducted in accordance with Australian Standard 4373 of 2007 and is to be limited to pruning of foliage or branches less than 25 mm in diameter at the point of attachment.

19 We do not consider it desirable that any larger branch which is within such an area should be pruned as it is not likely to droop and rub against the tree.

20 We have concluded, given Mr Kingdom's evidence about the likely rate of growth of the tree, that we should further order that:

3. pruning is to be repeated at five yearly intervals after the initial pruning is undertaken.

21 We are satisfied that we should also order that:

4. the pruning is take place from Ms Dawson's property;
5. the pruning is to be undertaken by Ms Dawson at her expense; and
6. the pruning is to be undertaken in a fashion that does not involve any person climbing onto the roof of the garage.

22 Finally, we order that:

7. the pruning occur by long handled saws or cutters in that fashion and the material removed across the roof onto Ms Dawson's property and removed by her through her property;
8. the pruning is to be undertaken by an AQF level 3 arborist with appropriate insurances;
9. Ms Dawson is required to give notice to Ms Brown that she proposes to undertake the pruning and when that pruning is to be undertaken;
10. Ms Brown is required to grant aerial access to the airspace over her garage roof for Ms Dawson to undertake that pruning; and
11. the pruning is to be undertaken in the first instance within 90 days of the date of this hearing and thereafter on an ongoing basis at intervals of not less than five years from the date of the first pruning.

23 Ms Brown’s application is otherwise dismissed.

Tim Moore Peter Thyer

Commissioner of the Court Acting Commissioner of the Court