Clarke v Goff

[2021] NSWLEC 1672

Land and Environment Court

New South Wales

Medium Neutral Citation:

Clarke v Goff [2021] NSWLEC 1672

Hearing dates:

1 November 2021

Date of orders:

1 November 2021

Decision date:

01 November 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to remove the jacaranda tree in the front yard of their property.

(2) The works in (1) must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

(3) The respondents are to give the applicant at least one week’s notice of the works in (1).

(4) Within 90 days of the date of these orders, the respondents are to plant in their front courtyard a replacement tree of a species that will reach a height of at least 6 metres and a crown spread of at least 4 metres at maturity.

(5) The exhibits are returned other than A and B.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring tree – damage to property – Council refused consent for tree removal – consent orders – order for replacement planting

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:

Breen v Caronna [2008] NSWLEC 293

Fang v Li [2017] NSWLEC 1503

Texts Cited:

City of Sydney Urban Forest Strategy (2013)

Safe Work Australia, Guide to managing risks of tree trimming and removal work (2016)

Category:

Principal judgment

Parties:

Herbert Clarke (Applicant)
John William Goff (First Respondent)
Rodney Bede Goff (Second Respondent)
Carolyn Maree Dodd (Third Respondent)

Representation:

Counsel:
S Sher (Solicitor) (Applicant)
L Sims (Respondents)

Solicitors:
Drayton Sher Lawyers (Applicant)
Zahr Partners (Respondents)

File Number(s):

2021/213109

Publication restriction:

No

Judgment

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

Background to the application

1. A jacaranda (‘the tree’) grows in the small front courtyard of the Erskineville property belonging to John Goff, Rodney Goff and Carolyn Dodd (‘the respondents’). Herbert Clarke (‘the applicant’), owner of the neighbouring property, applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for tree removal at the respondents’ expense, for compensation for property damage, and for costs relating to the application. Mr Clarke made his application on the grounds that the tree has damaged his property.

2. Before these proceedings commenced, the respondents applied in December 2020 for Sydney City Council’s (‘Council’) consent to remove the tree on the basis that it was damaging their property. They submitted a report from an arborist with their application to Council. Council refused consent, citing a lack of evidence regarding damage and a lack of evidence regarding suitable alternative solutions that might allow tree retention. Council granted consent for pruning the tree.

3. Since then, the applicant has obtained two reports from Alan Jan, engineer: the first in April 2021, and the second dated 5 October 2021 (Exhibit C). Mr Jan inspected the property on 20 March 2021. Additionally, the respondents obtained a report from Catriona Mackenzie, arborist, dated 26 October 2021 (Exhibit 1).

4. The parties reached an agreement prior to today’s hearing and asked the Court to make proposed consent orders for tree removal. The Court must be satisfied that they are orders the Court can and would make within the jurisdiction of Pt 2 of the Trees Act (Breen v Caronna [2008] NSWLEC 293 at [6]-[7]). Via MS Teams this morning, I heard submissions from the Ms Sher, solicitor for the applicant, and Ms Sims of Counsel, for the respondents, as to the relevant jurisdictional issues. Before making any orders, the Court must be satisfied: that the applicant has made reasonable effort to reach an agreed outcome with the respondents (s 10(1)(a) of the Trees Act); and that the tree has damaged the applicant’s property, or is likely to do so in the near future (s 10(2)). The Court must consider a range of matters at s 12 of the Trees Act before making any orders at s 9.

The applicant made reasonable effort

5. Historic correspondence accompanying the application shows the applicant made reasonable effort to reach agreement with the respondents, further borne out by the parties proposing consent orders.

The tree has caused damage to the applicant’s property

6. In his application, Mr Clarke claimed that the tree has: damaged the common wall along the common boundary between the parties’ front gardens; caused movement of his front fence and side fence; lifted tiles at the entry to his dwelling; caused cracking and lifting around his front door; and caused cracking of internal walls and ceilings in his dwelling.

7. Mr Jan undertook visual assessment of these elements of damage to Mr Clarke’s property. Mr Jan concluded that rotational movement of the garden wall and pier, uplifted pavers, and cracking of the dwelling’s internal walls, were all due to tree root growth.

8. Ms Mackenzie undertook visual assessment of the tree and elements of external damage. She lifted pavers to observe soil and roots below. She did not enter the applicant’s dwelling but reviewed photographs and Mr Jan’s report. Ms Mackenzie found that damage to the boundary garden wall was likely to be caused by tree root growth but, in her opinion, there was no evidence demonstrating that tree roots had caused any internal damage to Mr Clarke’s dwelling.

9. Council made a written submission to the Court, written 18 August 2021 (Exhibit D). When Council refused the application for tree removal in January 2021, Council’s tree management officer gave the following reasons for refusal:

“1. The tree appeared to be in a healthy condition with no obvious structural defects at the time of inspection.

2. The tree contributes to the amenity and canopy cover of the immediate area.

3. The information in the Tree Report prepared by Dr. Tree Good dated September 2020 is inadequate and has not demonstrated why the tree should be removed.

4. Insufficient information has been provided to demonstrate the tree is posing a risk to people and the built form of the property.

5. Insufficient information has been provided to demonstrate why the lifting pavers and damaged wall cannot be repaired without requiring removal of the tree.

6. The proposal does not satisfy the Objective 3.5.3(c) of the Sydney Development Control Plan 2012 which relate to tree management.

7. The removal of the tree is not consistent with the Greening Sydney Plan 2012 which has articulated a percentage canopy cover target to be achieved across the Local Government Area by 2030.

8. The removal of the tree is not consistent with other policies implemented by Council aimed at maintaining and increasing canopy cover across the Local Government Area including Sustainable Sydney 2030 Community Strategic Plan 2014, City of Sydney Urban Forest Strategy 2013, the City of Sydney Tree Management Policy 2013 and the City of Sydney Landscape Code 2016.”

10. Council also suggested:

“Alternatively, if you believe the tree is causing structural damage to your property, you are advised to engage a Structural Engineer to determine if the tree is the cause of damage and to provide recommendations on resolving the issue.”

11. There is no evidence that the respondents appealed Council’s decision.

12. On the evidence before me, I am satisfied that the tree has caused damage to external elements of Mr Clarke’s property, being the boundary garden wall and pavers. I cannot be satisfied that tree roots have caused damage to his dwelling. Mr Jan undertook no investigations, such as those set out at [59] in Fang v Li [2017] NSWLEC 1503, that would demonstrate causation. A building level survey has not been done; soil moisture levels have not been tested; roots have not been located and identified. Mr Jan referred to other possible causes, including the site’s poor drainage and possibly leaking pipes. He recommended a CCTV survey of stormwater and sewer pipes to confirm their integrity or otherwise. I am not aware that this has been done. Ms Mackenzie observed and noted a leaking downpipe. Mr Jan has not ruled out these other possible causes of damage to the dwelling. Nevertheless, because roots have damaged parts of Mr Clarke’s property, I can make orders.

Consideration of s 12 matters

13. I have considered the matters at s 12 of the Trees Act. Most relevant here are the tree’s benefits, Council’s consent requirements, and consideration of the potential solutions that might retain the tree.

14. The tree contributes to the overall canopy cover of the City of Sydney’s urban forest. It contributes ecosystem services including cooling, reducing water run-off, removing air pollutants, carbon sequestration and more. It has intrinsic value to public amenity, standing at the very front of the respondents’ property. These values are recognised in the City of Sydney Urban Forest Strategy (2013) and other policy documents, and were rightly considered by Council when determining the application for tree removal.

15. The evidence before the Court now includes the impacts of root pruning should a root barrier be installed within the respondents’ front garden to prevent further damage: the tree would be adversely impacted, and severely so. Consideration of alternative solutions within the reports is still limited, but in my mind, this reflects the reality of the situation: this tree has outgrown the limited space in which it was planted. It has reached a size that requires a large root system, in turn requiring significant soil volume that is not available within the respondents’ front garden. As Ms Mackenzie said at par 56 of her report: “The prognosis for the tree as a long-term, viable amenity tree in this limited growing space is poor.” Alternative solutions to repairing the garden wall, for instance, might be found without removing the tree, but the tree’s roots are likely to cause damage to other structural elements within the near future. I accept the findings of both Ms Mackenzie and Mr Jan, and the submissions of Mr Sher and Ms Sims, that it is now time to remove the tree.

16. Were Council consenting to tree removal, a condition for replanting would likely be included. Therefore, in addition to the proposed consent orders, I will include an order for planting a replacement tree.

Orders

17. The Court orders that:

1. Within 60 days of the date of these orders, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to remove the jacaranda tree in the front yard of their property.

2. The works in (1) must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

3. The respondents are to give the applicant at least one week’s notice of the works in (1).

4. Within 90 days of the date of these orders, the respondents are to plant in their front courtyard a replacement tree of a species that will reach a height of at least 6 metres and a crown spread of at least 4 metres at maturity.

5. The exhibits are returned other than A and B.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 03 November 2021