Culgan v Bradley

[2009] NSWLEC 1347

Land and Environment Court

of New South Wales

CITATION:

Culgan & Anor v Bradley [2009] NSWLEC 1347

PARTIES:

APPLICANTS
Anthony Culgan
Candida Degouveia

RESPONDENTS
Gregory & Carol Bradley

FILE NUMBER(S):

20538 of 2009

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

12 October 2009

EX TEMPORE JUDGMENT DATE:

12 October 2009

LEGAL REPRESENTATIVES:

APPLICANT
Natasha Matthew (real estate agent)

RESPONDENT
Gregory Bradley (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

12 October 2009

20538 of 2009 Anthony Culgan & Anor v Gregory & Carol Bradley

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 s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Anthony Culgan and Ms Candida Degouveia owners of a property at 51 Whitby Road Kings Langley against the owners of a tree growing at the rear of 53 Whitby Road. The owners of that property are Gregory and Carol Bradley. As the applicants’ property is currently tenanted Ms Natasha Matthews of The Kings Real Estate represented them.

2 The applicants are seeking the removal of a Quercus robur (English Oak) as they contend that the tree is causing damage to their property. They also seek rectification of any damage.

3 In the section of the application form that relates to damage to property, they state, “ the retaining wall is cracking as looks as though it will collapse. We have already had to contend with plumbing issues. The house is also starting to crack due to the roots moving”.

4 The application contained photographs of sections of the retaining wall closest to the oak tree, a letter from the tenant stating his concerns over the safety and stability of the wall, a letter from the real estate agent to the respondents about the tree sent in March 2009 (with reference to a previous letter sent in December 2008), and two tax invoices from a plumber for clearing of roots from the sewer. In a tax invoice dated 9 November 2007, the plumber includes a quote for “the removal and refitting of bush rock…and the removal and disposal of a pine tree..”.

5 The tree is a healthy oak tree of good form and with no obvious structural defects. It is thought to be at least 30 years old, the age of the respondents’ house. It is growing in the south-eastern corner of the Bradley’s property approximately two metres from both the fence with the applicant (to the east) and the fence with the neighbour at the rear (to the south). The respondents have lived in their house for ten years and the tree was well established at that time. The applicants purchased their property about two years ago.

6 The properties on the southern side of Whitby Road are cut into a relatively steep slope up to a ridgeline. The rear of the applicants’ property has been cut into the slope to create a level pad for the house and a rear courtyard. The depth of the cut is in excess of 1.1 metres as this is the approximate height of the retaining wall from the top of the pavers to the top of the wall. The brick retaining wall runs along the southern boundary and returns along the western boundary. An eastern return separates the rear courtyard/ garden into two sections. The western section steps down in height as the land slopes away.

7 The southern and western sections are set back from the fence lines by about 300 mm. The soil appears to have a high clay content.

8 The section of the retaining wall closest to the oak tree has a crack in the mortar between the 6th and 7th course of bricks from the bottom. Several of the bricks in the 6th course have been displaced outwards by between 5 and 15 mm. There is another crack in the mortar from the southern bottom corner zigzagging upwards in a northerly direction. There is a vertical crack in the brickwork some 2.5 metres from the corner and two bricks are cracked. There were no roots seen in any of these cracks.

9 Apart from this damage, the majority of this section of the retaining wall, that is, above and below the displaced bricks, is vertical. This is in contrast to the lower northern section of the wall which is displaced off vertical and several sections of brickwork are cracked and loose. This section is well away from the tree. Similarly, the southern section of the retaining wall along the rear boundary of the applicants’ property is also displaced off vertical with the top section leaning towards the house.

10 With respect to the applicants’ concerns over damage caused to the house by the tree, no cracks were seen and the agent was unable to point out any damage to the building or any roots. Ms Matthews pointed out undulations in the paving close to the house and near a tap attached to the back wall but no roots were shown to me.

11 With respect to the sewer, the inspection point is located at the front of the applicants’ property at the north-western corner and close to the public footpath. There are three mature Cupressus sempervirens ‘Swane’s Golden’ (Swane’s Golden Cypress) planted on the applicants’ property along the boundary with the respondents. These are several metres upstream of the inspection point. There is another conifer, a species of Thuja, planted in the respondents’ front garden approximately 2 metres from the inspection pit and separated from the applicants’ property by a low retaining wall.

12 There are several other shrubs and small trees growing in the applicants’ front garden in close proximity to the inspection pit including species of Grevillea, Melaleuca and Callistemon. This garden is terraced and retained with ‘bush’ rock. The information on the plumber’s invoice described in clause 4 suggests that this is the area in which roots were cleared from the sewer.

13 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

14 The Court must also consider a number of matters under section 12 of the Act. The relevant clauses in this case are:

(a) The tree is wholly located on the respondent’s property.

(e) The tree contributes to the scenic value of the land on which it is growing.

(f) The tree can be seen within the immediate area and therefore has value for public amenity.

(j) The soils in the area are clay and moderately reactive (swell when wet and shrink when dry). The wall retains over a metre depth of soil. The weight of soil and water could have caused displacement over the minimum 25 years since the wall was constructed. There is also another tree, a Brachychiton acerifolius (Illawarra Flame Tree) growing about 400 mm away from the applicants’ property in the property to the rear of both the applicants and the respondents’ properties. This tree is closer to the applicants’ property than the oak however, as no roots were visible, there is no evidence to implicate this tree as causing the cracking in the wall.

15 In these matters, the onus of providing proof rests with the applicant. Despite the cracking in the western section of the retaining wall, it is vertically aligned unlike other sections of the wall. The risk of failure of the section in question is unlikely. There is no evidence to suggest that the cracking is due to the tree. The ‘pine’ roots in the sewer are most likely to be from the applicants’ own trees. The oak tree is near the southern end of the applicants’ property, the sewer inspection pit is at the northern boundary.

16 Based on these observations I conclude that none of the elements under s 10(2) are adequately satisfied and the Orders of the Court are that the application to remove the tree is dismissed.

___________________

J Fakes
Commissioner of the Court