Crinion v Davidson

[2018] NSWLEC 1664

Land and Environment Court

New South Wales

Medium Neutral Citation:	Crinion v Davidson [2018] NSWLEC 1664
Hearing dates:	6 December 2018
Date of orders:	06 December 2018
Decision date:	06 December 2018
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; apprehension of injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Keith Patrick Crinion (Applicant) Len Davidson (Respondent)
Representation:	K Crinion, litigant in person (Applicant) L Davidson, litigant in person (Respondent)
File Number(s):	2018/284522
Publication restriction:	No

Judgment

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

1. ACTING COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by Mr Crinion of Baulkham Hills, relating to a Lemon Scented Gum (Corymbia citriodora) (the tree) located in the adjacent neighbouring property.

Background

2. The respondent, Mr Davidson, purchased his property about 41 years ago, and planted the tree about a metre from the rear yard southern side boundary that adjoins Mr Crinion’s property (the boundary), prior to building his house. This boundary runs approximately east – west, and is currently delineated by a steel panel fence.

3. The tree is now mature. It stands approximately 18 metres tall with a largely symmetrical canopy spread of about 15 metres, and its branches extend over parts of Mr Crinion’s rear yard by about seven metres.

4. A ‘granny flat’ was built in Mr Crinion’s rear yard more than 12 years ago close to the tree. It is located parallel to and about 1.3 metres from the boundary, and is about eight metres long. Its foundation is a concrete slab and the outer wall is brick construction.

5. The tree is positioned perpendicular to a point on the northern wall of the ‘granny flat’ about three metres from its western end, where the tree base is about 2.3 metres from the wall.

The hearing

6. The hearing commenced in the applicant’s rear yard, near the alleged damage to the granny flat and the area of perceived risk with respect to falling branches. Both Mr Crinion and Mr Davidson were present, and Mr Davidson was accompanied by two friends, one of whom is his Authorised officer, Mr David Willmott.

The applicant’s case

7. In his application, Mr Crinion seeks orders to remove the tree, rectification of property damage caused by it, and prevention of further damage.

8. In a letter to Mr Davidson, dated 13 August, 2018, Mr Crinion noted this damage as:

1. “a large crack on the outside brick wall and on the inside northern facing wall of the granny flat due to root damage”;

2. “tile replacement (x6) of the granny flat due to large branches and twigs falling from the tree”; and

3. “monthly maintenance required to clean out gutters on the granny flat removing leaves and debris from the tree.”

4. Risk of injury as a result of debris falling from overhanging branches is raised as “a further concern”.

The respondent’s case

9. Mr Crinion’s proposed order for tree removal is resisted by Mr Davidson, though he appears to have assisted Mr Crinion by gaining permission for tree pruning, as specified by The Hills Shire Council (Council). He has made no specific response to Mr Crinion’s submissions about damage caused by the tree.

Jurisdictional requirements

10. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

11. The Court is obliged to consider a number of matters pursuant to s 10 of the Act.

12. As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated. Mr Crinion provided evidence showing unsuccessful attempts to organise mediation, and correspondence with Council since 2015 has reflected frustration experienced in his efforts to resolve the issue.

13. The next major test that is posed, by s 10(2) of the Act, is that the Court must be 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.

14. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination.

Cracked wall

15. Mr Crinion showed the Court the northern wall of the granny flat that exhibits “a large crack from top to almost the ground of the wall,” as noted in Q4 of his application. He contends that the crack was caused by uplift by tree root or roots below the wall, and wrote in his letter to Mr Davidson, dated 13 August, 2018 that “Council has inspected the damage and confirmed it was caused by the roots of your tree.” No supporting documentation from Council was provided by the applicant, who acknowledged that his statement in his letter was based on a verbal comment by a Council inspector, and cannot be used as evidence.

16. The crack follows diagonal patterns along the mortar joins, though one brick was split vertically into two pieces. It appears to commence around floor level near the centre of the approximately 8 metre long wall, slightly east of where the roots likely intersect with the wall foundation, and it broadens progressively as it rises towards the ceiling.

17. Mr Crinion has excavated a trench approximately 2m long, parallel to and about one metre north of the northern wall of the granny flat. The trench is thus about 300mm from the boundary. Three structural lateral roots were exposed, with two positioned above and resting on the third. The top two roots, both about 55mm in diameter, were aligned directly towards the granny flat northern wall.

18. While additional excavation exposing these roots between the granny flat wall and the trench would have been useful to confirm the nexus between the tree’s roots and the wall damage, in the absence of other trees nearby, on balance of probability, I accept that the tree is a cause, and the jurisdiction of the Act is thus enlivened.

19. During the excavation, Mr Crinion fully severed these top two roots, thus preventing them causing future damage from further growth and expansion.

20. While this is not positive for tree health, it has removed the cause of the damage, and provided that the trench is left open to allow easy detection and removal of regrowth from these roots, further damage to the wall from these two roots is extremely unlikely.

21. The third, deeper root exposed below the two aforementioned roots appears to run nearly parallel rather than perpendicular to the wall and hence does not appear likely to cause damage. It appears about 65mm in diameter and has not been severed. It is important that no roots are unnecessarily severed.

22. Mr Crinion chose to rely on his written application, without much additional verbal submission. While his proposed orders are to remove the offending gum tree, rectification of property damage caused by it, and prevention of further damage, he is not seeking compensation.

23. He did not answer question 14 of the application form, which provides a Table into which itemised compensation claims can be inserted, while at Q15, the ‘basis of calculation’ provided is Tree removal only. At Q16, where the applicant is asked to provide a basis for seeking orders for rectification, again no answer is provided, nor has any quotation from a builder for damage rectification been submitted.

24. Although I accept that two roots from the tree have caused damage to the northern wall of the granny flat, and the jurisdiction of the Act is thus engaged, the applicant has made no claim for compensation for damage to the wall. As the three exposed roots are unlikely to cause damage in the near future, the issue is resolved.

Tile replacement and dropping debris

25. With respect to tile replacement (x6) of the granny flat due to large branches and twigs falling from the tree; and monthly maintenance required to clean out gutters on the granny flat removing leaves and debris from the tree, Mr Crinion is seeking an order for tree removal.

26. In October 2015 and again in November 2017, Mr Davidson was granted permission by Council for tree pruning only. The permits loosely specify deadwooding, and reduction pruning to reduce the end weight of branches overhanging Mr Crinion’s rear yard. Reason for decision was noted as the tree was healthy at the time of inspection. Though these permits were granted, no pruning has resulted.

27. Based on the arboricultural expertise that I bring to the Court, I concur that the tree appears healthy. It has light to moderate foliage density appropriate to its age and species, appears to have a sound branch structure, and no obvious signs of previous torn out branches.

28. Though there is small deadwood spread around the canopy, neither I nor Mr Crinion or Mr Willmott could see any with a diameter larger than about 15mm. Deadwood of this size is not normally considered a hazard.

29. In respect to possible and or future damage or injury, in Robson v Leischke [2008] NSWLEC 152 at [225], Preston CJ states “the mere fact that a tree is situated on a person’s land is insufficient reason by itself to justify making that person an insurer of other persons for any harm the tree may have caused to them or their property.” At par 56, he states that mere encroachment is not damage, in para169 that damage must be proved and in par 171, annoyance or discomfort to an applicant by such things as leaves and flowers blown onto their property from their neighbour’s land is not “damage to property on land” within s 7 of this Act unless they also cause damage to property on the neighbour’s land.

30. The issue of claimed damage to roof infrastructure from falling leaves is dealt with in Barker v Kyriakides [2007] NSWLEC 292 and the subsequent tree dispute principle, that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree.

31. This principle clearly applies here. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. Leaf accumulation could be mitigated by more regular maintenance in terms of gutter cleaning and/or gutter guard.

32. Mr Crinion submitted that approximately 6 tiles had been damaged and replaced in the last 18 months but accepted Mr Willmot’s view that the tiles were particularly fragile. Mr Crinion added that they were readily available and inexpensive. This damage is considered minor, and the maintenance required reasonable, and this element is also therefore dismissed.

Risk of Injury

33. Mr Crinion’s request for tree removal is also based on the perceived high risk of injury from branches dropping on to people playing and congregating on the lawn areas below the tree.

34. Using the guidance decision published in Yang v Scerri [2007] NSWLEC 592 with respect to injury, the Court considers the risk posed by a tree based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

35. There are no obvious characteristics of this tree that cause concern, and no evidence or claims of a history of branch failures.

36. In the absence of any obvious deadwood of more than 15mm diameter at the branch collar, there is no evidence to support the applicant’s fear and apprehension. No tree risk assessment was provided to support this claim, and the level of risk is considered low and acceptable. This element is also dismissed.

Conclusion

37. I have examined the mature Corymbia citriodora tree and have reached the following conclusions with respect to it:

1. Two roots from the tree are a cause of cracks on the outside northern brick wall of the granny flat but the applicant is not seeking compensation. Having been severed, these roots are very unlikely to cause wall damage in the near future. This issue is therefore resolved.

2. The issue of tile damage and falling debris on the granny flat roof is addressed and resolved with the guidance of the tree dispute principle established in Barker v Kyriakides [2007] NSWLEC 292.

3. The level of risk from branch drop onto lawn areas is considered low and acceptable.

4. There is no evidence to justify tree removal.

Orders

38. Accordingly, the application is dismissed.

………………………….

J Douglas

Acting Commissioner of the Court

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Decision last updated: 19 December 2018