Browne v Slack-Smith

[2013] NSWLEC 1198

Land and Environment Court

New South Wales

Medium Neutral Citation:	Browne v Slack-Smith & anor [2013] NSWLEC 1198
Hearing dates:	16 October 2013
Decision date:	16 October 2013
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; tree to be removed
Catchwords:	TREES [NEIGHBOURS] Damage to property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Civil Procedure Act 2005 Dividing Fences Act 1991
Category:	Principal judgment
Parties:	Mr A Browne (Applicant) Mrs S and Mr J Slack-Smith (Respondents)
Representation:	Applicant: Mr A Browne (Litigant in person) Respondents: Mrs S Slack-Smith (Litigant in Person)
File Number(s):	20463 of 2013

Judgment

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

1. COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owner of a property on St Huberts Island against the owners of a Cypress tree growing on an adjoining property.

1. The applicant seeks the following orders:

(1)   Removal of the Cypress tree and its roots at the respondents' expense.

(2)   Rectification of: - paving in his driveway, an electricity kiosk, and a section of the dividing fence - also at the respondents' expense.

1. The respondents wish to retain the tree as they value it for its shade.

1. The applicant tendered a substantial amount of material, much of which dated to 2003, well before the respondents purchased their property in 2008. In an attempt to satisfy the overriding purpose of any civil proceedings in NSW (s 56(1) Civil Procedure Act 2005), that is, to facilitate the just quick and cheap resolution of the real issues in the proceedings, this judgment deals with the jurisdictional tests relevant to the facts of the matter now before the Court.

1. In applications under Part 2 of the Act, the key jurisdictional test is found in s 10(2) of the Act. This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person.

1. If any of the elements of s 10(2) are met, the Court's powers under s 9 of the Act to make any orders the Court thinks fit are engaged.

1. The tree is a mature Cupressus sp. (Cypress) that has been recently heavily lopped. The trunk is wholly located on the respondents' property. Former owners planted it very close to the south-western corner of the property.

The damage

1. There are three elements of the applicant's claim - each is considered in turn.

The fence

1. The section of fence in contention is the north-western section of a rendered brick wall that divides the parties' properties. The wall acts as a pool fence for the applicant's land. The damaged section is a single brick section in which there is a diagonal crack in part of the upper section.

1. That section of the wall is wholly located within 200mm of the respondents' property. This was verified by two survey plans - one for each lot.

1. Section 7 of the Act enables an owner or occupier of land to apply to the Court for an order to remedy, restrain or prevent damage to property on the land, that is, the applicant's land, as a consequence of a tree to which the Act applies that is situated on adjoining land.

1. As that part of the wall is on the respondent's land it is beyond the jurisdiction of the Trees Act to make any orders with respect to the wall.

1. In making his application under the Trees Act, the applicant has not sought to engage s 13A of the Dividing Fences Act 1991 (the Fences Act) as a means of achieving the repair of the fence, an option available to him.

1. Therefore, similarly, the Court has no jurisdiction to make any orders and therefore this element of the application is dismissed. However, nothing in this judgment prevents the parties from coming to their own agreement in regards to what should happen to the wall.

The paving

1. The applicant has excavated a portion of the garden bed adjacent to the tree and between the diving fence and the edge of the driveway on his property. This has revealed a considerable number of roots from the Cypress and from shrubs growing in the applicant's garden bed.

1. In addition to this excavation, three sections of paving have been removed and the soil beneath them excavated to a depth of about 250mm revealing roots that are consistent with being from the Cypress. The applicant contends that these sections of paving had been lifted by the roots and created a trip hazard. A photograph in exhibit B shows a section of paving in which there are two displaced bricks.

1. The applicant also pointed out some very slightly mounded areas of driveway that he contends are also caused by roots from the Cypress however, in my opinion the change in level was almost imperceptible and the surface was smooth, even, safe to traverse and absent any trip hazards. The first respondent stated that this unevenness may also be the result of past works to install underground power cables.

1. A section of the edging of the driveway closest to the tree was lifted. A root from the conifer was observed to be growing beneath this section. Therefore, I consider that there is a clear nexus between the trees and the damage and therefore s 10(2) is satisfied in regards to the paving and the Court's powers to make orders are engaged. These orders are considered later in this judgment.

The electricity kiosk

1. This small kiosk is likely to house a private connection to the applicant's property off the main underground cable located on the street.

1. The applicant contends that the box has been displaced and that in a weather event in July 2012 or thereabouts, sparks flew from the box and they lost power to the property.

1. The kiosk is located near the tree on the other side of the brick fence. The excavation in this area has exposed many large structural roots from the conifer beneath and beside the kiosk.

1. While the displacement in itself is negligible and there appears to be no actual damage to the box, the proximity of underground electrical cables to such large woody roots represents a potential risk of damage to the cables and a potential risk of harm to anyone working on that system.

1. Therefore I am satisfied to the extent required by s 10(2) that the Court's powers to make orders are engaged.

What orders should be made?

1. The respondents are keen to keep the tree, and options of root pruning or a root barrier were discussed (as they had been in the past). Absent any current independent arboricultural evidence relevant to this matter and with the expertise I bring to the Court, I consider that the root pruning required to install a root barrier or to limit further damage to the applicant's property would cause irreparable damage to the structure and health of the tree. The severing of large structural and supporting roots would destabilise the tree and increase the risk of failure. This is not an action the Court would order.

1. While the respondents enjoy the tree for its shade, the tree has been so severely lopped that its form is poor and its health may be compromised in the longer term.

1. Therefore, I am ordering the removal of the tree at the respondents' expense. Orders will be made for the removal of roots on the respondents' side of the wall. This will sever and kill any roots growing on the applicant's property.

1. As the displacement of the kiosk is minor, no orders will be made requiring the respondents to contribute to the rectification of the kiosk or to the removal of roots from under it. Should the applicant wish to do so, he can do that at his own cost.

1. In regards to the paving, as the roots in the exposed sections of paving are well below the surface and the sections are small, it would seem to me that relaying the pavers is a simple job capable of being undertaken by the applicant. The pavers are set on compacted road base on top of the naturally sandy soil and therefore should be easy to replace.

1. The applicant also offered to repair the section of damaged edging at his own cost.

1. Therefore as a consequence of the foregoing, the Orders of the Court are:

(1)   The application is upheld in part.

(2)   Within 60 days of the date of these orders the respondents are to engage and pay for an AQF level 3 arborist to remove the tree to ground level. The stump and roots within one metre of the trunk within the respondents' property are to be ground to a depth of 400mm.

(3)   The work is to be carried out in accordance with the NSW WorkCover Code of Practice for the Amenity Tree Industry.

(4)   The applicant is to provide all necessary access on reasonable notice for the purpose of quoting and to enable the work to be carried out in a safe and efficient manner.

_______________________

Judy Fakes

Commissioner of the Court

Decision last updated: 17 October 2013