Evans v McGreal

[2017] NSWLEC 1104

Land and Environment Court

New South Wales

Medium Neutral Citation:	Evans v McGreal [2017] NSWLEC 1104
Hearing dates:	28 February 2017
Date of orders:	28 February 2017
Decision date:	28 February 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Orders made see [31]
Catchwords:	TREES [NEIGHBOURS] Damage to property, potential injury
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	William Evans (Applicant) Steve and Carmen McGreal (Respondents)
Representation:	Applicant: Mr W Evans (Litigant in person) Respondents: Mr S and Mrs C McGreal (Litigants in person)
File Number(s):	2016/363916

judgment

1. COMMISSIONER:   About 40 years ago the applicant purchased his Karuah property on which there was a dwelling. Growing on the adjoining property to the west, along the common boundary were, and still are, a row of six Pinus elliottii (Slash Pine). At the time of purchase, the trees were well-established.

2. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for the following orders:

• Removal of the six pine trees

• Rectification of damage to paving, stormwater, slab and other property allegedly caused by the trees

• Compensation for costs of cleaning debris off the roof and pruning roots away from his property ($6,200)

3. The orders are sought on the basis that the trees have caused, and will continue to cause, damage to his property and could cause injury to anyone on his property. The applicant is concerned about tripping hazards and falling branches.

4. The applicant is also seeking reimbursement for the money he spent on surveying the location of the trees in relation to the boundary. Dealing with this element of the claim, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.

5. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(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. The tests in s 10(2) must be applied to each of the trees.

7. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.

8. As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.

Observations, alleged damage, findings

9. The survey indicates that the trees are wholly on the respondents’ undeveloped property and within 1m of the common boundary.

10. As neither party engaged an arborist to provide independent expert opinion, the following observations are based on the arboricultural expertise I bring to the Court.

11. All trees are in average health and in a condition consistent with their age, species and growing environment.

12. The trees are numbered in the claim form from 1-6 in a northeast to southwest or up-slope direction, away from the street frontage. For convenience, the front of the applicant’s dwelling will be described as north.

13. Tree 1 is adjacent to the north-western corner of the applicant’s dwelling. The applicant contends that the roots of the tree have uplifted and cracked the PVC stormwater pipe connected to that corner of the roof. I observed the damaged pipe. The applicant also maintains that the roots have grown under and lifted the paving he installed at the front of his dwelling and along the pathway on the western side of the dwelling. I observed Pine roots in the sandy bedding layer on which the pavers were set. The lifting of a portion of the paving is consistent with being caused by the observed roots. The applicant has attempted to manage the problem by cutting roots.

14. The applicant also submits that the roots have caused cracking of the concrete slab on the eastern side of the dwelling and that roots could also be causing damage to other parts of the slab. I observed a series of cracks in the eastern slab. I also observed that despite its considerable area, no expansion joints have been incorporated into it. This slab appears to have been poured at some later stage as there were expansion joints in the slab on which the ground floor of the dwelling sits and also in a concrete path to the east of the cracked slab. The applicant was unable to show me any roots growing under that eastern slab. The slab pre-dates the applicant’s ownership of the property.

15. I am satisfied to the extent required by s 10(2)(a) that Tree 1 has caused damage to the applicant’s property. Rectification of the damaged stormwater system and the paving will require the removal of large woody roots. Given the proximity of this tree to the boundary, the severing of roots close to the trunk may predispose the tree to whole tree failure. The Court cannot reasonably make orders that may create such a risk.

16. Orders will be made for the removal of T1 to ground level and the rectification of the stormwater system, damaged paving and pathway. Grinding of the stump should not be carried out as this may disturb roots of adjoining trees, however the manual cutting and removal of individual roots for the purpose of rectifying the problems is appropriate. I am satisfied that the respondents should pay the full cost of the rectification of the north-western portion of the stormwater system and 80% of the cost of relaying the salvaged pavers and pathway. The applicant is to bear some of the cost as the paving was installed by him, and not professionally installed, and the trees were present when he purchased the property. The rectification of the paving is limited to the area up to the first supporting column under the applicant’s dwelling. This was discussed with the parties during the on-site hearing.

17. Tree 2 is to the south of T1, some 500mm from the common boundary. The applicant alleges that roots from the tree have damaged a concrete dish drain that takes stormwater from the south-western corner of the dwelling down the western side of his property. I am satisfied that roots from this and probably other pines have contributed to the dysfunction of this drain; that is s 10(2)(a) is met. While somewhat uneven, the adjoining pathway is adequately functional and does not need replacing at this stage.

18. It was convenient that the hearing took place in the rain. I observed that most of the water in the dish drain came from the south-western corner of the roof where the downpipe had been removed. As alternative to replacing the dish drain, it was suggested that the applicant replace the downpipe and the respondents contribute 80% of the cost of installing a PVC pipe from the down pipe and connecting it to the stormwater system to be replaced at the north-western corner. The discounting is based on the age and construction of the drain. The parties are content with this option.

19. I am not satisfied that the damage is sufficient to warrant the removal of Tree 2.

20. The applicant is concerned that T3 is leaning towards his property and that it may fall onto his dwelling. I agree that that the tree is on a slight lean but in my view, the form of the tree is a consequence of its position in the row and its growth towards the light. The canopy is relatively light and reasonably well distributed. I saw no signs that would suggest that failure is likely in the near or foreseeable future. However, should the respondents undertake any construction on their block, severing of roots could predispose this tree to failure; this should be considered if and when the respondents lodge a development application. Although roots from this tree are likely to have grown onto the applicant’s property, I saw nothing that would lead me to conclude that any orders should be made for any intervention with the tree at this stage.

21. Tree 4 is on a more pronounced lean to the north/northwest. Apart from the lean, most of the canopy, including a large and reaching lower branch, is on the side of the lean. There is also a slight mounding of the soil on the tension side of the tree. I am sufficiently concerned about this tree to order its removal on the basis that failure is foreseeable. While it is highly unlikely to cause any damage to the applicant’s property, it is of a size that could result in injury to anyone on the property to the west of the respondents’ property. In this case, s 10(2)(b) is satisfied, and orders will be made for its removal. The roots are not to be ground/ pulled out as this may disrupt the root systems of other nearby trees.

22. The applicant is concerned that roots from the trees [probably 3, 4 and or 5] could cause damage to concrete piers at the southern side of the dwelling. While roots were seen in the adjoining exposed embankment, I am not satisfied there is sufficient evidence that this is likely to occur within the usual time frame. There is no evidence that they are currently causing damage to these piers. Therefore no orders will be made for any intervention with the trees on this basis or for any rectification/ replacement of the piers.

23. Tree 5 is perhaps the largest of the 6 trees. It is growing adjacent to the applicant’s backyard. He contends that this and other nearby pines have caused damage to his lawn and garden. The applicant stated that the trees were preventing the growth of his lawn and garden. I observed a full coverage of turf and the normal growth of other plants. While I note that tree roots are growing throughout the lawn, and there are a lot of pine needles on the lawn, this is not damage.

24. Of greater concern is a large dead branch above the applicant’s garden. The eventual failure of dead wood is predictable and the branch is of a size that could potentially cause damage or injury. I am satisfied that s 10(2) is met for this tree and orders will be made for the removal of dead wood.

25. Tree 6 is the southernmost of the trees. It is growing close to a slab on which the applicant has placed a caravan. Beside the caravan, the applicant has constructed a timber framed annex on a slab. While he contends that the roots of the tree could cause damage to the caravan and annex, I saw no evidence that this is likely. However, as with T5, there are a number of large dead branches in this tree, which overhang adjoining properties that are clearly occupied. Orders will be made for the removal of these dead branches. However, I am not satisfied that the removal of this tree is warranted.

26. While I am not satisfied that any damage has occurred to the guttering as a consequence of the leaves, or is likely in the near future to occur, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter.

27. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paragraphs [168] to [173] discusses ‘damage’ in general. In this discussion, his Honour specifically noted at [171] that:

171 However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not “damage to property on the land” within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour’s land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.

28. Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

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.

29. There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter.

30. In regards to the compensation, the amount claimed is to cover the applicant’s time and labour in cleaning the roof and cutting roots. There is no documented evidence of time spent, and, as indicated in Barker, it is reasonably expected that a property owner will take steps to maintain their property, particularly when the trees were present when an applicant purchased their property. Ordinarily, the Court would order reimbursement of costs associated with rectification of damaged property and for which there are tax invoices or other documentation/ evidence that clearly links the damage to the money spent. As this is not the case here, the order for compensation is refused.

Orders

31. Having considered the evidence and heard from the parties, the Orders of the Court are:

1. Within 60 days of the date of these orders, the respondents are to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3, and with appropriate insurance cover, to carry out the following work:

1. Remove the Pine trees indicated as Tree1 and Tree 4 on the diagram in the application claim form. The trees are to be cut to ground level.

2. Remove all dead wood from Tree 5 down to 40mm at its base from all parts of the tree that are overhanging the applicant’s property;

3. Remove all dead wood from Tree 6 down to 40mm at its base from all parts of the tree.

2. All work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry; the pruning work is to be carried out in accordance with AS4373: 2007 Pruning of Amenity Trees.

3. Within 60 days of the date of these orders, the parties are to obtain up to two quotes each for the following work (this does not prevent either of the parties agreeing to carry out the work at a negotiated rate). Within this time frame, the parties are to agree on the choice of contactor; if there is no agreement the cheapest quote is to be selected.

1. Replacement of the stormwater pipes at the north-western corner of the applicant’s dwelling and the connection of a PVC pipe from the down pipe at the south-western corner of the applicant’s property into this system. The applicant is responsible for replacing the downpipe at the south-western corner of the roof.

2. Repaving of the western side pathway removed for the purpose of repairing the stormwater system, and repaving the adjoining ground floor area of paving from the western side of the under-croft to the first supporting column.

4. The works in (3) are to be carried out after the removal of the trees and within 120 days of the date of these orders otherwise order (5) lapses.

5. Within 21 days of the receipt of a tax invoice for the completed works in order (3), the respondents are to reimburse the applicant 80% of the cost of repaving in order (3)(b), 80% of the cost of supply and installation of the PVC pipe from the south-western corner to the north-western corner; and 100% of the cost of rectifying the stormwater system from the north-western corner.

____________________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 02 March 2017