Galloway v Howard
[2009] NSWLEC 1017
•14 January 2009
Land and Environment Court
of New South Wales
CITATION: Galloway v Howard [2009] NSWLEC 1017 PARTIES: APPLICANT
RESPONDENT
Jean Galloway
Sandy HowardFILE NUMBER(S): 20957 of 2008 CORAM: Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- Leighton Green Ledge, Damage to paving, Root barrier LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Osborne v Hook [2008] NSWLEC 1231 DATES OF HEARING: 14/01/2009 EX TEMPORE JUDGMENT DATE: 14 January 2009 LEGAL REPRESENTATIVES: APPLICANT
Jean Galloway, litigant in personRESPONDENT
Mr C. Xuereb, solicitor
of Charles R Xuereb & Co
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Thyer AC
14 January 2009
20957 of 2008 Jean Galloway v Sandy Howard
The extemporaneous decision was given on 14 January 2009. This written judgment includes the findings given on-site, relevant observations and background information.JUDGMENT
1 ACTING COMMISSIONER: Mrs Galloway lives at 26A Oakville Road Willoughby. She seeks orders for removal of 14 trees which form a hedge on the adjoining property, and replacement with species more suitable to the location. The trees have been identified as Leighton Green or Naylors Blue Cypress. She also seeks removal of the tree roots from her property and installation of a root barrier, and that the cost of all these works be payed for by the owner of the trees. In addition she seeks compensation for repairs already carried out to her paving, and for proposed repairs to the dividing fence and her paths, pavers and garden edges.
2 The trees are situated in the backyard of 26 Oakville Road, the adjoining property to the east which is owned by Sandy Howard and Lynn McEwan. They were represented at the hearing by the solicitor Mr Charles Xuereb.
3 The trees are growing in a line, with the trunks about 0.4 m on the eastern side of the dividing fence. The parties agree that the dividing fence is on or very close to the common boundary.
4 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?
5 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?
6 I observed numerous shallow trenches that had been dug on Mrs Galloway’s side of the fence. Each trench revealed tree roots. The largest root was about 50 mm diameter, located near the northern end of the hedge. The other roots were significantly smaller, none being larger than 20 mm diameter. No absolute evidence was provided prior to the hearing that the roots in Mrs Galloway's backyard were from the Cypress trees in Mr Howard's property. On viewing the roots, I was unable to determine what direction they had grown from or if they were from Mr Howard’s trees. However, at the hearing Mr Howard took some palings from the dividing fence and dug along the largest visible root growing into Mrs Galloway's property. He revealed that the root is growing from one of his trees, and on that basis I find it likely that the other roots visible on Mrs Galloway's side of the fence are also from his trees.
7 I inspected each of the areas of damage that Mrs Galloway identified in her backyard, including cracks in the garage floor, cracks and separation of the brick edges of the vegetable garden, separated paving blocks beside a garden pedestal, two cracks across a concrete garden path, separated garden edge blocks and slight undulation of block paving near the house.
8 I accept Mrs Galloway’s claim that an area of block paving at the rear of the house was re-laid in March 2008 because it had become uneven, and that a lot of tree roots were found under the pavers. As Mr Howard’s trees are the only trees near that paving, and the northern three trees are adjacent the paving, I find on the balance of probability that those three trees caused the damage and are likely to cause further damage in the near future, therefore meeting the first and third tests in s 10(2)(a) of the Act.
9 I observed that the large root of the third tree from the northern end excavated by Mr Howard is growing very close to, and possibly already in contact with the underside of the concrete path. On that basis I find that the third tree is likely to cause damage to the path in the near future, meeting the third test in s 10(2)(a) of the Act. Also, as Mrs Galloway is 80 years old and spends a lot of time in her small garden, I find that damage to the path will cause a trip hazard that is likely to cause her injury. On that basis the tree also meets the test in s 10(2)(b) of the Act.
10 I find that all the other observed damage is not, on the balance of probability, caused by the trees. The damage appears to be normal dilapidation expected of older garden structures on the heavy clay site soil. Also, I was shown the 1 m wide stump of a Podocarpus tree located about 2 m from Mrs Galloway’s garage, on a property to the south-east, and the location in Mrs Galloway’s backyard where a Gum tree with trunk diameter of about 0.45 m was removed about seven years ago. The Gum tree was about 4 m from the garage, vegetable garden and concrete path. I find that those trees are more probable causes of damage to the garage floor and the garden structures than Mr Howard’s trees.
11 As I find that with the exception of the paving that has already been repaired, the damage has not been caused by Mr Howard’s trees, I will not order any compensation for that damage. Additionally, as I find that all the existing damage is very minor and does not require repair, I would also not order compensation on that basis.
12 Mrs Galloway gave notice to Mr Howard of damage to the block paving near her house in March 2008 at about the time repairs were completed. Where there is no reason that the owner of a tree should be aware that the tree is causing damage, it is the usual practice of the Court is to award compensation only for that portion of the damage that occurred after the owner of the tree is notified of the damage (Osborne v Hook [2008] NSWLEC 1231). Mr Howard has provided evidence that the trees were planted about eight years ago, and the species selection was on the advice of a local landscape designer. On that basis I find no reason that he should have expected the trees to cause damage, and certainly not within eight years of planting. As the increase of damage since notice was given is zero, and as Mr Howard did not have the opportunity to rectify the damage, I find that no compensation should be awarded for the paving repairs already carried out.
13 On advising the parties that I intended to make orders for root pruning and installation of root barrier, or removal of some trees, the parties requested that orders not be made. Mr Howard and Ms McEwan wished to avoid orders being applied to their property, and Mrs Galloway supported their wish in recognition of the long-standing goodwill between them and the assistance they have given her in the past. I note Mr Xuereb’s success in developing an agreement between the parties for works to be carried out, and that on adoption of that agreement the parties gave consent for the application to be dismissed.
14 I note the agreement of the parties as follows:
- 1. Mr Howard shall carry out at his cost the following works to be commenced by 14 April 2009 and to be completed within four weeks of commencement:
- a. Removal of the dividing fence, panel by panel;
b. Installation of tree root barrier on Mr Howard's property or the common boundary. The root barrier to be a recognised root barrier product installed by a professional root barrier contractor, to a minimum depth of 0 . 9 m from the start of the garden bed at the rear Mrs Galloway's house (approximately 2 m south of the house) and continuing without break to Mrs Galloway's southern boundary;
c. Tree roots shall be cut at the location of the root barrier trench but roots shall not be removed from Mrs Galloway's backyard;
d. The existing fence shall be reinstalled;
e. Any damage shall be made good at Mr Howard's cost;
- Orders
15 By consent of the parties, the application is dismissed.
___________________
- Peter Thyer
Acting Commissioner of the Court
- The formal orders are not included as part of this judgment but a copy may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at
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