Dunn v Noel

[2009] NSWLEC 1063

Land and Environment Court

of New South Wales

CITATION:	Dunn v Noel and Anor [2009] NSWLEC 1063
PARTIES:	APPLICANT Valma Hazel Dunn RESPONDENTS Terrence Charles Noel and Jill Noel
FILE NUMBER(S):	21186 of 2008
CORAM:	Moore C - Thyer AC
KEY ISSUES:	TREES (NEIGHBOURS) :- Pruning of trees, damage to property
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	17/02/2008
EX TEMPORE JUDGMENT DATE:	17 February 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr T Laarakkers, solicitor JNT Legal RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

17 February 2009

21186 of 2008 Valma Dunn v Terrence and Jill Noel

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 .

1 COMMISSIONERS: A large Blackbutt and a somewhat smaller Turpentine stand on the Noels' property close to the boundary with Ms Dunn’s property in 3 Heath Place, Heathcote.

2 A low brick boundary fence on Ms Dunn’s property runs along the edge of her property in the vicinity of the two trees. A side passage down the side of her house with a 50 mm thick concrete slab is located some 2.5 m or so from the Blackbutt (the closer of the two trees to it). Her main driveway slab edge is also some 2.5 m to 3 m from each of the trees. Ms Dunn’s fence is cracked and appears to have lifted.

3 We have been shown a large root from the Turpentine which appears to terminate in the vicinity of the lifting of the fence. However, at this point the fence is somewhat curiously constructed – in that, on the side of the tree root and away from the front of the two properties, the fence is five courses of bricks high with the bottom of the courses of bricks being a soldier course comprising the footing to the brick fence. It terminates with a soldier brick butted up to this tree root.

4 On the side of the tree root toward the front of the properties, the fence is one course of bricks less – that is, it is four courses of bricks with the lowest course being a soldier course. The end soldier brick of this element of the footing is laid partially on top of the end soldier brick of the other portion of the fence.

5 It is clear to us, as an inescapable conclusion, that the fence has been so constructed to take account of the root of the Turpentine being present at the time of the fence’s construction. Although we accept it is reasonable to assume that the top of the fence may have been lain in a fashion so that it was in a straight line, it is clear that the fence was constructed in a fashion that it had its builder knowing of (and taking account of) the existence of a substantial root of the Turpentine – which root appears to have been severed during the course of that construction.

6 Although the fence has obviously been further lifted (potentially by tree roots), we have no excavation to demonstrate that this is the case.

7 It is clear from the quotation provided by G and P Hunt Building Contractors for remedial works to the fence that the appropriate construction standard recommended by Mr Hunt is for a reinforced concrete footing with dimensions of 400 mm x 400 mm to be constructed with a new brick fence to be laid on top of it. A necessary corollary of such construction would be the removal of all tree roots that would otherwise impede such a structure.

8 It is our opinion that the present fence has been constructed in an entirely inappropriate and unsatisfactory fashion not meeting the appropriate standards of workmanship that would be required for the erection of such a fence.

9 The only impact that the present cracking of the fence causes is aesthetic for the fence itself and we see no reason why the inadequate standard of construction and the fact that the damage arising from it to the fence itself is aesthetic is any reason why we should order Mr and Noel to undertake any works to the fence or make any contribution to any works being undertaken by Ms Dunn.

10 There is a taller pier acting as the outer post to a gateway at the end of this fence. We have heard uncontradicted evidence that that pier had had an archway of top it to the pillar at the end of the house upon which is hung the gate providing security to Ms Dunn’s backyard.

11 It is clear that a pier has also been displaced and that it leans somewhat toward the rear of the property. It has been constructed, apparently, on the concrete slab (or some other footing unable to be inspected) that is integrated into the pathway down the side of the house. The pathway down the side of the house is 50 mm thick (rather than that which is specified by Mr Hunt as appropriate to be a reinforced slab 100 mm thick). We have no evidence that there is any reinforcing in the slab down the side of the house. The slab down the side of the house is cracked in a number of locations that are unrelated to the trees on Mr and Mrs Noel's property including cracking and subsidence at the far corner in the vicinity of the drive-out to the rear lawn from the garage on Ms Dunn’s property.

12 We have drawn two conclusions with respect to this slab. The first is that we cannot be satisfied that the cracking in the slab has been caused by the roots of either of the trees about which the application has been made. Secondly, we are satisfied that the standard of construction of this slab (as with the fence) does not meet acceptable building standards even having regard to the fact that the house and the associated structures were built in the early in the 1980s.

13 We are not prepared to make any order as a consequence with respect to this slab. The cause of the displacement of the pier to the gate is something that has also arisen because of the unsatisfactory nature of the construction of the low fence which it is obvious has pushed back on this pillar and caused it to displace rearward. Because we have (as we have earlier outlined) concluded that the construction of this fencing was not the appropriate professional standard, we are not prepared, as a matter of discretion, to make any order with respect to this pillar.

14 As a consequence, although at least portion of the damage has satisfied the test under s 10(2)(a) of the Trees (Disputes Between Neighbours) Act 2006 [in that there has been damage occasioned to Ms Dunn’s property by trees on the Noel’s property], as a matter of discretion, for the reasons we have outlined, we would not make any compensatory order or order any contribution to reconstruction.

15 We note that, towards the end of the proceedings, the Noels made an offer to accept an order from the Court that they make such a contribution but declined an offer to negotiate that contribution voluntarily. As we have found that there is no basis upon which we could found in order to require them to contribute we merely note that that has occurred.

16 We will also note that the making and rejection of the present application based on the facts and circumstances the present case does not preclude the making of some future application if circumstances change – particularly that, as is now the case, Mr and Mrs Noel are on notice about the nature of these structures and the damage that has been occasioned to them at the present time. As a consequence they may wish to discuss (but we are not able to order them to discuss) with Ms Dunn how those matters might be resolved for the future.

17 With respect to Ms Dunn’s main driveway slab, we note that there are is merely a minor lip created and some cosmetic cracking to this slab. The tree root that was exposed in the vicinity of the slab was a dead root. We have no evidence that could satisfy us that the lifting of the slab in the position closest to the corner of her garage on the Noel side of the property was caused by a tree root. We are not satisfied, on the balance of probabilities, that the damage was caused by roots from the Noel’s tree.

18 However, if we are wrong on that point, the damage that has been occasioned appears to be cosmetic; there is some minor cracking at right angles to the line of the house; and there is a minor lip at the right hand end of the slab as one faces the house. There is no evidence that either the cracking or lifting is causing any functional utility loss to the house or is a risk of injury to any person. Therefore, if we are wrong on the jurisdictional point, as a matter of discretion, we can see no basis upon which we should make any order concerning the driveway slab.

19 We turn finally to the question of the risk of damage to Ms Dunn’s roof from deadwood in the Blackbutt. We note that the Blackbutt has had a substantial secondary leader removed from it in the comparatively recent past and that that secondary leader, on the evidence given to us, was one which overhung Ms Dunn’s property to a significant extent compared to be almost vertical configuration of the present portion of the tree which remains.

20 However, we have observed deadwood in the canopy of the remaining portion of the Blackbutt. We note that Mr and Mrs Noel do not object to an order for deadwooding being made. We are satisfied that a number of elements of deadwood which we are able to observe in the canopy of the tree do pose a risk of damage, in the near future, to Ms Dunn’s property.

21 We therefore order that:

1. All deadwood greater than 20 mm in diameter at the point of attachment be removed from the Blackbutt tree within 90 days of the date of this hearing;
2. The removal is to be carried out by an AQF Level 3 arborist with appropriate insurances;
3. The work is to be undertaken by Mr and Mrs Noel at their cost;
4. The work is to be repeated at no greater than annual intervals from the date of the first deadwood removal;
5. All future deadwood removal is to be undertaken by Mr and Mrs Noel at their cost; and
6. As portion of the tree overhangs Ms Dunn’s property, the person carrying out the deadwood removal on behalf of Mr and Mrs Noel is to have access to the airspace of Ms Dunn’s property – such access being on reasonable notice, at a reasonable hour of the day, and with Ms Dunn having the opportunity to supervise that access being taken.
Tim Moore Peter Thyer
Commissioner of the Court Acting Commissioner of the Court