Hamilton v O'Brien

[2009] NSWLEC 1340

Land and Environment Court

of New South Wales

CITATION:

Hamilton v O'Brien [2009] NSWLEC 1340

PARTIES:

APPLICANT
Diane Hamilton

RESPONDENT
Stephen & Kerry O'Brien

FILE NUMBER(S):

20270 of 2009

CORAM:

Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- Dividing fence; pruning of tree roots

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

185 September 2009

EX TEMPORE JUDGMENT DATE:

18 September 2009

LEGAL REPRESENTATIVES:

APPLICANT
Diane Hamilton (litigant in person)

RESPONDENT
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

18 September 2009

20270 of 2009

Diane Hamilton v Stephen and Kerry O’Brien

JUDGMENT

1 Nine trees (the trees) stand in a row along the back fence of 10 Gunbar Road, Taree (the property) which is owned by Stephen and Kerry O’Brien. The western edge of the trunk of each tree is within about half a metre of the common boundary with the adjoining land to the west. The upper parts of large roots from most of the trees are visible above ground, under the fence and on the adjoining land. Neither Stephen nor Kerry O’Brien, nor any representative for them attended the hearing, and the Court has not received any documentation from them regarding this matter. I inspected the trees on their property at the hearing, with the agreement of their tenant.

2 Ms Hamilton is the owner of 26 Talawong Drive, Taree, the adjoining property to the west. She makes an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify or prevent property damage. She seeks orders for removal of the trees and for the roots to be ground out. She claims that roots of the trees have pushed over the fence, and broken and twisted palings, and that a sewer main on her property may be damaged. She also claims that the existing fence needs to be replaced, and a new fence cannot be erected due to the tree roots. She says that the fence was in a substantially similar condition when she purchased her property in November 2008, and that she is willing to pay half the cost of a new standard fence. Miss Hamilton keeps small pet dogs. The tenant in the O’Brien’s property has two large dogs. Ms Hamilton has spoken to Mr O’Brien by phone with regard to the fence and trees. She claims that he was willing to pay half the cost of removing his trees and half the cost of a new fence.

3 I observed that the dividing fence between the properties is roughly in line with the back fences of other properties to the north and south. On that basis, the trunks of the trees are entirely on the O’Brien’s property, meeting s 4(3) and s 7 of the Act. Consequently, as I find that each tree is a “tree” within the meaning of that term in s 3(1) of the Act, there is an application that the Court may determine.

4 When assessing an application under the Act, 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 on the land?
Is the tree now causing damage to the applicant’s property on the land?
Is the tree likely in the near future to cause damage to the applicant’s property on the land?
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?

The trees

6 To avoid confusion, I refer to the trees by number, the most northerly being tree 1, with consecutive numbering to tree 9 at the southern end of the row. Ms Hamilton refers to tree 7 as a Silky Oak, and the others as China Doll trees. Both Silky Oak (Grevillea robusta) and China Doll tree (Radermachera sinica) are usually evergreen trees. I observed that all the trees were without leaves at the time of the hearing. I am satisfied that the appearance of the trunks of the trees is reasonably similar to my expectation for China Doll trees. The tree trunks were about 50 – 150 mm diameter for trees 1 to 8, and about 300 mm diameter for tree 9.

7 By letter dated 26 May 2009, the Greater Taree City Council advised:

• The property and or trees are not subject to any Council tree preservation order or policy;
• The trees are not known to have any specific historical, cultural, social or scientific value;
• While the trees would make some contribution to the local ecosystem, they are not a unique or endangered specie;
• The contribution to the natural landscape, and its scenic or intrinsic value would be a subjective assessment and has not been determined by Council;
• The trees are unlikely to have a significant impact on soil stability, the water table or any other natural feature of the land or locality.
Damage

8 Ms Hamilton advised at the hearing that there has been no blockage by the trees to her sewer or to the sewer main that runs across her backyard. On that basis I find no reason to expect any damage to the sewer in the near future, and thus none of the trees meet any of the tests in s10(2)(a) of the Act in this regard. Further, any damage by the trees to the sewer main would not meet the tests because the sewer main does not belong to Ms Hamilton.

9 I observed the fence, and find that it has palings lifted and coming off, and the fence is twisted out of alignment and is no longer fit for purpose as a result of pressure from the roots of the trees. I observed that fences of other nearby properties that I am told were developed as part of the same subdivision about 10 years ago, are in better condition. I observed roots of trees 1, 2, 4, 5, 6, 7, 8 and 9 that were in contact with and causing damage to the fence. That damage meets the first and second tests in s10(2)(a) of the Act for each those trees. On the basis of past and present damage to the fence, I find that trees 1, 2, 4, 5, 6, 7, 8 and 9 are likely to cause damage in the near future, meeting the third test in s10(2)(a) of the Act for each those trees. I am therefore able to make orders regarding those trees.

10 Tree 3 is smaller than the other trees, and I did not observe any above ground roots of tree 3. On that basis, I am not satisfied that tree 3 meets any of the tests in s10(2)(a) of the Act, and I am not able to make orders regarding tree 3.

11 In many circumstances, I may not consider damage to a paling fence by tree roots to be sufficiently serious to justify intervention with the trees. However, in this case, I note Ms Hamilton’s concerns for security of her dogs, and her preference for a metal dividing fence quoted to cost $1,134, which is cheaper than her quote for a paling fence. I also note that the tree roots would prohibit installation of the bottom edge of metal fence panels sufficiently close to ground level. Further, I note that the O’Briens have not offered any solution that adequately resolves the problems caused by their trees.

Findings

12 I find that due to the size of the tree roots visible under the fence, and their location at and above ground level, a new metal fence cannot be properly constructed without cutting and removal of tree roots. On that basis I find that the roots of trees 1, 2, 4, 5, 6, 7, 8 and 9 should be removed from under the line of the fence, at the O’Brien’s cost. The O’Briens may retain any trees that would be structurally sound after the root removal.

13 Further, I find that the existing fence has been made not fit for purpose by the trees and should be replaced. As the fence was in a substantially similar condition when Ms Hamilton purchased her property less than a year ago, I find that the neighbours should equally share the cost of a new standard fence.

14 I intend to order that removal of the old fence, removal of tree roots, and installation of a new fence be completed within 3 months of the date of the orders. I also intend to make orders for carriage of the works, and responsibility for each of the parties to pay their own part of the costs to the relevant contractor.

15 As the O’Briens are not present at the hearing, they will be sent a copy of the proposed orders and given 14 days to respond.

Orders

16 The application is upheld in part and the Court makes the following Orders:

1. These orders apply to 10 Gunbar Road, Taree, and 26 Talawong Drive, Taree;
2. The existing paling dividing fence between the properties shall be removed, and a new standard metal dividing fence shall be installed between the properties by 18 December 2009 with the cost shared by the parties. Each party shall pay half the cost of the fencing works to the contractor, except that the O’Brien’s share shall not exceed half the quoted cost of $1,134;
3. Ms Hamilton shall have carriage of the fencing works, and access for this work shall be through 26 Talawong Drive, Taree;
4. Ms Hamilton shall give the O’Briens at least 7 days notice of removal of the existing fence;
5. The O’Briens shall complete removal of the roots of trees 1, 2, 4, 5, 6, 7, 8 and 9 to a depth of at least 0 . 15 m below ground and at least 0 . 15 m on both sides of the fence line, and shall backfill to ground level with typical site soil, at their cost, within 14 days of the existing fence being removed. Access for this work shall be through 10 Gunbar Road, Taree;
6. All work shall be carried out at reasonable times, and each party shall ensure that no dog from their property has access to the other property during the period of the works.

___________________

Peter Thyer
Acting Commissioner of the Court

The formal orders may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at