Ducker v Martin

[2008] NSWLEC 1265

Land and Environment Court

of New South Wales

CITATION:

Ducker v Martin [2008] NSWLEC 1265

PARTIES:

APPLICANT
Alfred Ducker

RESPONDENT
Margaret Martin

FILE NUMBER(S):

20272 of 2008

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Removal of trees, property damage, possible injury to people,

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

18/06/2008

EX TEMPORE JUDGMENT DATE:

18 June 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr A. Ducker, litigant in person

RESPONDENT
Ms E. Reynold, solicitor
of Barwick Stevens Incorporating Kreutzer & Simpson Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

18 June 2008

20272 of 2008

Alfred Ducker v Margaret Martin

JUDGMENT

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

1 ACTING COMMISSIONER: Mr Ducker bought and moved into his property at 61 Pilot Street Urunga in 2001. The single storey brick veneer house is about 40 years old. The house is located about 1.0 metre from both the southern and eastern boundaries, with a concrete path between the house and a low brick retaining wall at those boundaries.

2 The adjoining property owned by Mrs Martin and other members of her family, 24 South Street Urunga, is on the southern, uphill side of Mr Ducker’s property. There are three trees, a Jacaranda, Crepe Myrtle and Cocos Palm that Mr Ducker is concerned about in the backyard of Mrs Martin’s property. These trees are each at least 2.0 m from the common boundary and were similar to their present size when Mr Ducker bought his property.

3 A Mango tree with similar trunk diameter to the Jacaranda was growing in the north-eastern corner of Mrs Martin’s backyard less than 1.0 m from the common boundary. It overhung the guttering of Mr Ducker’s house. The tree was cut to just above ground level in about 2005 after it died back, but its trunk and roots remain.

4 There have been disputes between the neighbours about trees for a number of years. Mrs Martin believes the Mango and Jacaranda were poisoned.

5 Mr Ducker made his application to rectify or prevent property damage, but at the hearing also raised concern about possible injury to any person by the Jacaranda tree. He seeks orders for removal of the three trees.

6 Mrs Martin wishes to retain the trees, and provided written evidence of the importance of the trees, particularly the Jacaranda to her family, the local area and the environment, and provided in her affidavit a list of about 30 bird species that she has seen in the Jacaranda or Palm. Mrs Martin attended the hearing and was represented by the solicitor Ms Reynolds who is her niece.

7 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree.

These tests are:
Has the tree caused damage to the applicant's property ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?

8 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

The trees

9 I have examined the three trees and have reached the following conclusions in respect to them.

10 The Jacaranda is about 10 m to 12 m tall with a trunk diameter of about 0.7 m. The trunk is more than 2 m from the common boundary. The tree is in poor condition with few leaves. Most of the northern side of the canopy has been removed by lopping of large, lower branches a number of years ago and very recent lopping of higher branches. The remaining branches are well clear of the common boundary. Mr Ducker advised that prior to recent pruning some branches overhung the common boundary by about 0.5 m. There are a few surface roots between the trunk and the fence, with decay visible in several locations on the top of roots close to the fence.

11 The Crepe Myrtle is a small tree about 6 m tall with multiple trunks situated about 2.5 m from the common boundary. It appears to be in good condition. No surface roots are visible. Branches have not been pruned and are clear of the common boundary.

12 The Cocos Palm is about 12 m tall, and the trunk is situated about 4 m from the common boundary. Three fronds presently overhang the common boundary by about 0.5 m.

The issues

13 The issues in this case are:

• Have roots of the trees caused, are they now causing, or are they likely in the near future to cause damage to the applicant’s property?
• Have leaves of the trees caused, are they now causing, or are they likely in the near future to cause damage to the applicant’s property?
• Are any of the trees likely to cause injury to any person?

Have roots of the trees caused, are they now causing, or are they likely in the near future to cause damage to Mr Ducker’s property?

14 At the hearing Mr Ducker pointed out small cracks in the single brick retaining wall at his rear boundary, slabs of the concrete path that have lifted a little between his house and the retaining wall, general lift of paving at the south-western corner of his house, and cracks in the western wall of his house. He advised that the soil behind his retaining wall is very wet, and that he had added an extra course of bricks to the top of the wall to stop water flowing over it.

15 Mr Ducker also advised at the hearing that he had not carried out any excavation to determine if tree roots had entered his property. He pointed to an area behind the retaining wall where he said that he had found a tree root by probing, but that area was hidden under stored pipes which he did not remove at the hearing to allow confirmation of a tree root. He made no claim of finding tree roots in other areas where his property is damaged. Also, no evidence was provided of tree roots at the eastern end of the retaining wall where the Mango tree was close to the common boundary. Mr Ducker stated at the hearing that he did not think the Palm was causing any damage.

16 I have read the undated builders report by Mr Tarrant but find that it gives no details of his inspection and little detail of observed damage to the house wall, retaining wall or pathway. It does not indicate that any excavation was carried out or that any tree roots were found. Although stating that each of the areas of damage could be caused by several factors, it does not state those factors. It appears to jump to the conclusion that the damage ‘is more than likely caused by root intrusion’, ‘due to the proximity of the large trees in the adjoining property’. Also, the report does not identify which of the existing trees or the removed Mango tree is the most likely cause. For these reasons I have given this report little weight in my consideration of the application.

17 I observed that the pathway slab that had lifted most, being about 20 mm higher at the house wall, had also subsided about 6 mm at the retaining wall side closer to the trees. Without some reasonable explanation I cannot find it likely that a tree root lifted only the more distant side of the path.

18 The western brick wall of the house has two identical windows and no other openings. The windows are at equal height above ground, equally on either side of the vertical centreline of the wall. I observed two cracks 1 – 2 mm wide in this wall. The cracks go from the inner, lower corner of each of the two windows, downwards towards the centre line of the wall. The width of the cracks decrease towards ground level. This would seem to indicate that the centre of the wall has risen, or the southern end of the wall (closest to the Jacaranda tree) and the northern end have both subsided relative to the centre of the wall. Thus without some explanation to the contrary, the observed evidence does not support Mr Ducker’s claim that the Jacaranda tree has lifted the southern end of the western house wall.

19 For the reasons discussed above, I am not persuaded that roots of any of the three trees or the Mango have caused damage, are now causing damage, or are likely in the near future to cause damage to Mr Ducker’s property. Therefore regarding tree roots, the three tests in s 10 (2) (a) of the Act are not met.

20 Additionally, under s 12 (h) of the Act, the Court is to consider anything, other than the trees, that has contributed, or is contributing, to any such damage, including any act or omission by the applicant. Relevant matters include the age and construction of the Mr Ducker’s house, retaining walls and paths, the soil and ground conditions, actions by Mr Ducker to investigate and prevent the damage, and any actions by Mr Ducker that may have affected the health of the trees.

21 I consider that the age of the house being about 40 years and its construction on what appears to be a cut and filled site may make some contribution to the observed minor cracking. I also consider that the single brick wall is inadequate as a retaining structure, and that Mr Ducker was aware of dampness behind the wall but raised the top of the wall thus trapping more water behind it. Also, Mr Ducker, having concerns that tree roots may be entering his property has not trenched between his retaining wall and the fence on the common boundary to find and cut any tree roots. As stated above he claims to have found one tree root by probing but has not cut that root on his property. Additionally, no evidence has been provided that any damage if caused by tree roots was not caused by roots of the Mango tree which has now been cut to ground level but was quite large and closer to the common boundary than the other trees. On this basis, even if I had found that some damage was caused by tree roots, I would have been unlikely to order the removal of the Jacaranda and Crepe Myrtle trees.

22 Ms Reynolds’ written submission includes a claim that the Jacaranda tree was poisoned in October/November 2006, but it has never been established who poisoned it. At the hearing Mr Ducker denied poisoning the tree. Ms Reynolds could not show me any drill holes or other obvious sites of poison application. I observed that the condition of the tree could be the result of poisoning but without any evidence I cannot draw any conclusions on this matter.

23 Ms Reynolds also referred to Panjratan v Chang [2008] NSWLEC 1136. In that case the Court did not order removal of the trees though it was likely that the trees had caused blockage of the sewer. There were other contributing factors to the blockage including the age and nature of the pipes, and also there had been no recent blockage since the applicant’s and the Board’s sewers were cleared. The Court also recognised that the trees contributed to the scenic and amenity value of the land and provided a screen between the two properties. I have found in this case that roots are not the cause of damage to Mr Ducker’s property. If however I had been wrong in this regard, I would consider the situation similar to that in Panjratan v Chang as the age and nature of Mr Ducker’s structures may have contributed to their damage, and the trees provide a screen between the properties and contribute to the scenic and amenity value of the land and to the local ecosystem and biodiversity. On a similar basis, even if the roots had caused damage, I would not have ordered removal of the trees, particularly as in this case it would be possible to prune any roots on either side of the common boundary.

Have leaves of the trees caused, are they now causing, or are they likely in the near future to cause damage to the applicant’s property ?

24 Mr Ducker states that leaves of the Jacaranda block his roof gutters and downpipes, and get inside his roof and wall cavities, and that leaves and flowers of the Crepe Myrtle contribute to filling the roof gutters and downpipes, and the leaves become slippery on his cement paths. Mr Ducker advised at the hearing that the Jacaranda overhung the common boundary by about 0.5 m prior to the recent pruning. I observed that the Jacaranda is now generally 2 m clear of the boundary, and the Crepe Myrtle does not overhang the boundary. These two trees appear that they would only shed quantities of leaf and debris that could be cleaned up by reasonable home maintenance by Mr Ducker. This view is supported by Ms Reynolds' written submission in which she states that grass has always grown under the (Jacaranda) tree, unaffected by the small leaves that fall from the tree, and that the respondents have never had to rake up leaves in their yard.

25 I note that the builders report by Mr Tarrant states that leaf debris will cause early failure of the life expectancy of gutter and down pipe system and could cause water damage to the eaves and possibly the inside of the dwelling. The report does not describe any actual damage that has been caused. Further, I assume from the report that if Mr Ducker cleaned his gutters adequately it is not likely that leaves would cause any water damage to the home in the near future.

26 Due to the lack of evidence of damage, and my observation that only a relatively small amount of tree debris could be expected from the trees, I find that regarding any damage by leaves and flowers of the Jacaranda and Crepe Myrtle, the three tests in s 10 (2) (a) of the Act are not met.

27 Ms Reynolds referred in her written submission to Barker v Kyriakides [2007] NSWLEC 292 that being a case where the Court found 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. I have found in this case that none of the trees come into the jurisdiction of the Court on the basis of the tests in s 10 (2) (a) of the Act so no order for tree removal or intervention can be made. If however I have made an error regarding damage by leaves and flowers, I consider that Mr Ducker’s situation regarding leaves and flowers is not out of the ordinary, and similar to the finding in Barker v Kyriakides it is appropriate to expect him to clean the gutters and surrounds of his house on a regular basis, and that no orders should be made for intervention with the trees.

28 Mr Ducker stated that three or four fronds of the Cocos Palm had landed in his yard in the last seven years, and they all fell in windy weather. He advised that the fronds did not cause any damage. Based on his own evidence, I find that the Cocos Palm has not caused damage, is not now causing damage, and is not likely in the near future to cause damage to Mr Ducker’s property. Therefore the three tests in s 10 (2) (a) of the Act are not met by this tree.

Are any of the trees likely to cause injury to any person ?

29 No evidence has been provided and I have not observed any reason to assume that the Crepe Myrtle or the Cocos Palm are likely to cause injury to any person.

30 At the hearing Mr Ducker expressed concern that the Jacaranda is a large tree and that it may cause injury to people by dropping branches or the whole tree falling over.

31 With regard to the branches of the Jacaranda, I note Mrs Martin’s statements in her affidavit that she has never seen any limb of size fall from the tree and has not had any specific complaint of this happening. She also states that the tree has been making a recovery and that there are sprouts or green returning to areas that had no leaves last year. I am satisfied that Mrs Martin has had the tree inspected, and is likely to have weak branches removed before they fall. As described previously the tree has recently been pruned well clear of Mr Ducker’s property, and if a branch were to fall it could only conceivably fall onto Mrs Martin’s property where occupants are aware of the condition of the tree. On this basis I do not find it likely that the tree will cause injury by dropping a branch.

32 The Jacaranda tree is now lopsided, in poor condition and with some root decay. However, the tree is described by Mrs Martin as making a recovery, I only observed decay in surface roots near the common boundary some 2 m and more from the trunk, and the remaining canopy is on the uphill side of the tree towards the south which I was told was the direction of storm winds. On that basis I find it very unlikely that the tree could fall northwards into Mr Ducker’s property, and with no evidence to the contrary I assume that the tree will recover and remain stable in the ground. Therefore I find that the Jacaranda tree is not likely to cause injury to any person, and so it does not meet the test in s 10 (2) (b) of the Act.

Conclusion

33 As none of the trees meet any of the tests in s 10 (2) (a) and (b) of the Act, the trees do not come into the jurisdiction of the Court, and I intend to dismiss the application.

Orders

34 The orders of the Court are that the application is dismissed.

___________________

Peter Thyer
Acting Commissioner of the Court