Daniels v Wyner

[2015] NSWLEC 1250

Land and Environment Court

New South Wales

Medium Neutral Citation:	Daniels v Wyner & anor [2015] NSWLEC 1250
Hearing dates:	23 June 2015
Date of orders:	08 July 2015
Decision date:	08 July 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 30.
Catchwords:	Trees (disputes between neighbours); damage; debris; application upheld; orders differ from the orders sought; orders for pruning and cabling.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Peter Daniels (Applicant) Paul Wyner (First Respondent) Martine Wyner (Second Respondent)
Representation:	Peter Daniels, litigant in person (Applicant)   Solicitors: Mr Mark Driscoll, BCP Lawyers & Consultants (Respondents)
File Number(s):	20278 of 2015

Judgment

Background

1. Since 1979, Mr Daniels (‘the applicant’) has lived at his Cromer property in Sydney’s northern beaches region. Soon after he began occupying his property he added some retaining walls in his back yard so that he could establish some level garden beds for growing vegetables and other plants.

2. From its street frontage, Mr Daniels’ property slopes down to the north where it shares a common boundary with the Wyners’ property. The Wyners (‘the respondents’) have owned and lived at their property for approximately two years. In their rear garden, not far from this common boundary, stands a mature Liquidamber tree (‘the tree’). The tree’s broad crown spreads over the back yards of both properties; its roots spread throughout the soil within both properties. It is now winter and the leaves of this deciduous tree lie on the ground.

3. A few years ago Mr Daniels noticed tree roots near the back wall of his garage and a crack in the garage’s concrete slab floor. He also noticed suckers growing from roots within his garden. And he noticed his retaining walls had been displaced. In 2007 and 2010 he also had a plumber clear his sewer pipe, which runs across the rear of his property close to the common boundary and the tree. According to Mr Daniels, tree roots had blocked the pipe. For these reasons he has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the Wyners to remove the tree and for them to pay him $8,891. This amount is based on: the plumber’s costs for clearing pipes ($619 in total); the cost of cleaning up leaves and debris in his garden last year ($1,200); the costs of a report by a consulting arborist ($715) and a report by a consulting engineer ($1,000); and a quote for replacing sewer pipes ($5,357). The ordering of compensation is within the power of Commissioners of the Court, but costs such as application fees and the costs of expert reports are not. If Mr Daniels wishes to press for costs of reports he will have to file a Notice of Motion for that matter to be heard by a Judge or the Registrar of the Court. All other matters for which he seeks action are within my reach.

4. The Wyners appreciate the tree’s amenity, the shade it provides and its contribution to privacy. They do not wish to remove it. The Wyners also commissioned an engineer and an arborist to prepare expert reports.

Framework of the Trees Act

5. Before the Court can make orders, there are several jurisdictional tests within the Trees Act that must first be satisfied, and then a range of matters that must be considered. The relevant jurisdictional tests here are at s 10(2):

10 (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or(b) is likely to cause injury to any person.

6. Matters to be considered at s 12 include: the tree’s location; other legislation applying to the tree; the tree’s benefits to the respondents as well as to the broader environment and community; other factors contributing to damage or to the likelihood of damage or injury; steps taken by either party to deal with the matter; and any other relevant matters.

7. The Court is not obliged to make the orders sought by the applicant, but has the discretion at s 9 to make “such orders as it sees fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree”.

8. The onsite hearing allowed inspection of the tree and the opportunity for Mr Daniels to point out the issues of concern to him in his back yard. In considering the tree’s contribution to any damage and its likelihood to cause damage or injury, and in determining appropriate orders, I bring my own arboricultural training, experience and expertise. Photographs used in this judgment were taken by me during the onsite hearing.

Has the tree caused, or is it causing, damage?

9. Issues within Mr Daniels’ application and raised by him during the hearing are: damage to his sewer pipes; cracking of his garage floor; displacement of his retaining walls; damage to the ground in his yard; large amounts of leaves and debris falling into his yard; and the extent to which branches grow over his property.

Sewer pipes

10. The occasions on which Mr Daniels’ sewer pipes were unblocked preceded the Wyners’ purchase of their property. They cannot be responsible for any damage that occurred prior to their ownership, so I will not order compensation of plumbing costs incurred by Mr Daniels.

11. Mr Daniels has not demonstrated that pipes have been damaged in any way during the last two years, and there is no evidence that they are damaged now. As I am not satisfied that the tree has damaged or is damaging the sewer pipes, this element of the application does not enliven the Court’s jurisdiction. If the pipes need replacing because they are old terracotta pipes with cracks, this was already the situation prior to the Wyners’ ownership of the tree.

Garage floor

12. A crack runs from the northern edge of the garage’s concrete slab floor toward the centre of the floor. Mr Daniels has uncovered a root near the northern edge of the slab. He says the root is from the Liquidamber and that it has caused the cracking. Mr Driscoll, solicitor for the Wyners, pointed out that the root meets the northern edge of the slab some distance from the crack. He suggested that, had the root caused the crack, the two features would be more proximate.

13. Mr Daniels engaged S. J. Nicola of S. J. Nicola & Associates, Consulting Structural and Civil Engineers, to prepare a report regarding possible structural damage caused by the tree. The report, which does not satisfy the Court’s directions regarding expert evidence, is a two-page letter dated 1 June 2014, followed by three pages of photographs. Under “My Observations” on page 1 the author notes: “There is a distinct curvature of the concrete slab on ground to a Garage store rm [sic] with 75 mm diameter surface roots visible adjacent.” There is no explanation of any nexus between these two features, nor any conclusion that the root has caused the crack.

14. Considering the appearance of the root, its location and the absence of other trees in the vicinity, I accept it is most likely a root from the Wyners’ Liquidamber. However I am not satisfied that the nexus between the root and the crack has been demonstrated. The garage slab is of an age where some cracking might be expected, regardless of root growth. If the root were able to cause cracking, I accept Mr Driscoll’s argument that this would be more likely to occur closer to the root. Even if I accept Mr Daniels’ contention that the root has caused the crack, the damage is so minor that, with the discretion allowed by the Act, I would not make any orders for its remedy. Furthermore, Mr Daniels has not applied for any remedy regarding damage to the garage. Such acceptance on my behalf of a nexus between the root and the crack in the slab would enliven the Act’s jurisdiction, but as this is enlivened elsewhere, as explained further below, it makes no material difference to the outcome of this judgment. As a consequence, no orders will be made on the basis of this element of the application.

Retaining walls

15. Several concrete block retaining walls were constructed in Mr Daniels’ back yard shortly after he moved in, so they are perhaps more than 30 years old. The walls have been displaced and mortar between blocks is cracked. Mr Daniels says this is due to growth of Liquidamber roots beneath the wall’s concrete footing. The report by S. J. Nicola states: “Damage to concrete block retaining walls has most likely been caused by uplift of their footings ie [sic] large roots.” Jo Leigh, of Tree Consulting by Jo, was engaged by Mr Daniels to provide a report. Ms Leigh states at s 3.5 of the Arboricultural Assessment Report, of 7 October 2014, that: “Given the close proximity of the tree to the retaining wall and the absence of any other trees located in the vicinity, it is most likely the root system of the Liquidamber [sic] styraciflua (Liquidamber) is causing movement of the wall.” Mr Daniels has sought no orders regarding remedy of the retaining wall, only the order for tree removal to prevent further damage.

16. The Wyners engaged James McArdle, of McArdle Arboricultural Consultancy to provide a report. On page 14 of his Level 5 Arborist Assessment Report Mr McArdle recommends installation of a root barrier. The Wyners also engaged Garth Hodgson, of Jack Hodgson Consultants Pty Ltd, to provide an engineer’s expert opinion. Mr Hodgson explains that he was unable to fully determine the extent to which the block walls were core-filled, or the extent of concrete footings beneath the walls or drainage behind the walls, however where observation was possible he noted that the lower retaining wall was not core-filled. Mr Hodgson states (section 7) that despite their heights of up to 1.0 metre, with retained soil to a height up to 0.8 metres, “the retaining walls are not engineered walls and are not suitable for the likely loads to be placed upon them from soil pressures and hydrostatic pressures.” He suggests that further intrusive investigation would be required to determine if tree roots have contributed, but states at his conclusions:

The damage to these retaining walls is due to a combination of not being fit for purpose and site conditions. It is possible that tree roots may have contributed to the damage but this cannot be determined without further investigation. If it is found that tree roots have contributed, in my opinion, the tree roots have only contributed to the damage to a minor degree.

17. After observing the retaining walls, their apparent lack of attachment to the footing other than mortar, the apparent absence of any reinforcing or core fill, I accept Mr Hodgson’s conclusions – if roots have contributed to damage they are only a minor factor and may not have caused damage had the retaining walls been suitably engineered.

18. Mr Daniels also stated that there was once a fruit tree growing in his garden bed adjacent to the north-eastern corner of the retaining walls. The tree was apparently removed some years ago. It is also possible that this tree contributed to damage.

19. Roots from the Liquidamber can be observed in the vicinity of Mr Daniels’ retaining walls. If I accept on the balance of probabilities that they have contributed to the walls’ displacement, enlivening the Court’s jurisdiction, having considered other relevant matters I would not make any orders on this basis. Other matters that have contributed to the damage (s 12(h) of the Trees Act) include the engineering and construction of the walls, their age, and possibly the fruit tree, now removed. Removing the tree will not remedy the existing damage. If the walls require rebuilding, as Mr Daniels contended during his submissions, it can be done so with existing conditions in mind, including the presence of the Liquidamber nearby.

Damage to the ground

20. Mr Daniels contends that roots of the Liquidamber are damaging the ground in his back yard. Mr Daniels stated during his submissions that he does not want any roots from the tree extending into his property. As Preston CJ explained in Robson v Leischke [2008] NSWLEC 152 at 55-66, the mere encroachment of a tree’s roots or branches into a neighbour’s land is not a sufficient cause of action for nuisance; actual damage must be suffered, or likely to be suffered, by the neighbour. At 166 of Robson His Honour explained that:

…damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes Between Neighbours) Act 2006…

Leaves and other debris

21. Mr Daniels says he cannot pick up all the leaves and twigs that fall into his yard from his neighbours’ tree. He says he is not well and has recently undergone chemotherapy. In 2014 he paid $1,200 to have his yard cleaned up.

22. There is no evidence that leaves have caused any damage to any property. However, if they were causing damage, for instance to vegetables or other plants being grown by Mr Daniels (which they are not), there is nothing in this matter that would lead me to vary from the principle first stated at (20) in Barker v Kyriakides [2007] NSWLEC 292: that the “dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree”. For those who enjoy the benefits of trees in the urban environment, some reasonable level of maintenance can be expected. I will not be making orders for interfering with the tree on the basis of leaf-drop, nor for compensation for clean-up costs.

Branches extending over the boundary

23. Mr Daniels stated during submissions that he does not want any branches of the Liquidamber extending over his property. As with tree roots, the mere encroachment of branches over a neighbouring property is not a cause for intervention. The branches, and therefore the tree, must have caused, be causing, or be likely to cause damage to the applicant’s property, or be likely to cause injury.

24. Observing the tree, I noted that it has two stems joined close to the ground, with a union that appears structurally sound (lower arrow in the photograph below). However the southern stem forks again at a height of around 3 metres (upper arrows in the photograph below).

25. The fork in the southern stem is very narrow and contains included bark for a vertical distance of perhaps 400 mm, above which the limbs are growing against each other for a further vertical distance of some 500 mm. At the base of the fork, where the included bark appears to end and the two limbs are joined, moisture is weeping into surrounding bark, apparently from within the crack that separates the two limbs. Although the two stems appear joined in the area between the two arrows in the photograph below, the moisture exuding at the lower arrow indicates that included bark separates the two stems from here to the upper arrow, where external observations would suggest the fork begins.

26. The structure of the fork, described above, limits the amount of holding wood between the two limbs. Between them, these limbs support almost half the tree’s total crown mass. The western limb supports the south-western quarter (approximately) of the crown, is less upright than the eastern one, and the crown it supports grows outward and over Mr Daniels’ back yard. Although neither of the arborists engaged by the parties identified this fork as hazardous, I am of the view that the fork is likely to fail in the near future, to the extent that it warrants orders for remedial action. Failure of the fork would result in this large limb, with approximately a quarter of the tree’s crown attached, falling across the boundary, in which case it would cause significant damage to two boundary fences and anything else present at the time.

27. During the onsite hearing I pointed out the fork to the parties, noted my concerns, and invited them to address this issue during their submissions. The Wyners expressed a preference for retaining the tree if this could be done practically and reasonably. I am of the view that the tree can be retained by installing a cable higher in the crown to support this limb, and carrying out a reasonable amount of pruning to reduce the weight of this limb and the loads experienced at its base. At the same time, any large deadwood over Mr Daniels’ property should be removed.

Orders

28. Based on the foregoing, orders will be made for pruning the Liquidamber and installing a cable, with the aim of preventing failure of a large section of the crown. The tree provides benefits to the Wyners and to the broader community. For the reasons outlined above, no orders will be made for removal of the tree or for compensation.

29. A suitably experienced arborist carrying out the works ordered below is to determine the most appropriate type and size of cable and the most suitable points for its installation. Steel cable or synthetic cord may be used. As a guide, cabling should be installed at approximately two thirds the height of the section of tree above the fork to be supported.

30. The orders of the Court are:

1. The application is upheld.

2. Within 30 days of the date of these orders the respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with tree cabling experience and suitable insurances to carry out the following works:

1. Install a cable between the two southern limbs to limit their range of movement, with the aim of preventing failure of the narrow fork at their base.

2. Prune the southern side of the tree’s crown to reduce the weight and length of branches, especially on the south-western limb, removing no more than 20% total live crown mass.

3. Remove deadwood >50 mm diameter over the applicant’s property.

3. All pruning must conform to the guidelines of AS4373 Pruning of amenity trees and the WorkCover Code of Practice for the Amenity Tree Industry.

4. The respondents are to give the applicant at least 7 days' notice of the works in (2).

5. The applicant is to allow all access for the works in (2) during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 08 July 2015