Hooley v Maher

[2022] NSWLEC 1514

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hooley v Maher [2022] NSWLEC 1514

Hearing dates:

14 September 2022

Date of orders:

14 September 2022

Decision date:

14 September 2022

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application is granted to the extent of the following orders.

(2) The Respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works within 30 days of the date of these orders:

(a) prune branches (no pruning of stems) of trees T1–T3 to provide clearance of 2 metres above ground level along the Applicants’ side of the boundary fence;

(b) prune branches (no pruning of stems) of T2 and T3 to provide clearance of 1 metre between the Applicants’ garage roof and any branches.

(3) All tree work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373–2007 ‘Pruning of amenity trees’.

(4) The Respondent is to provide the Applicants with at least 2 days’ notice of the works.

(5) The Applicants are to provide any access required to complete the works during reasonable hours of the day.

(6) The application for compensation is refused.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – neighbouring trees – damage to property – compensation for damage to pool – lack of evidence – orders for pruning

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 9, 10, 12

Cases Cited:

Barker v Kyriakides [2007] NSWLEC 292

Texts Cited:

Land and Environment Court Practice Note – Class 2 Tree Applications

Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and

Standards Australia, AS 4373–2007 ‘Pruning of amenity trees’

Category:

Principal judgment

Parties:

Karen Hooley (First Applicant)
Scott Brown (Second Applicant)
Lorraine Maher (First Respondent)

Representation:

Counsel:
M Anne (Solicitor) (Applicants)
D Learmonth (Solicitor) (Respondent)

Solicitors:
Adams and Partners Lawyers (Applicants)
Williamson and Learmonth (Respondent)

File Number(s):

2022/83456

Publication restriction:

No

Judgment

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

Background to the application

1. COMMISSIONER: Karen Hooley and Scott Brown (the Applicants) have a fibreglass swimming pool in the yard of their Jamisontown property. The pool has been empty for over two years and is in poor condition. They say it was damaged by roots spreading from trees on the neighbouring property belonging to Lorraine Maher (the Respondent). They are also concerned about other issues caused by the trees: debris falling onto a deck, garage roof, furniture and into the pool; falling branches; and damage to the boundary fence. They applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for: three trees to be removed or, failing that, pruned and maintained; compensation of $83,000 to replace the pool; and costs of the application. Commissioners of the Court do not have the power to award costs.

2. The Court cannot make orders under Pt 2 of the Trees Act unless it is satisfied that the trees concerned have caused, are causing, or are likely in the near future to cause, damage to the Applicants’ property, or are likely to injure any person. The Court must also be satisfied that the Applicants have made a reasonable effort to reach agreement with the Respondent.

3. The hearing took place onsite, allowing the Court to observe the trees, the pool and other elements of the application. The Applicants provided no reports or other evidence, other than one quote to replace the pool. I rely on my own arboricultural expertise in making this decision. Graham Maher, brother of the Respondent, swore an affidavit. Mr Anne, solicitor, represented the Applicants; Mr Learmonth, solicitor, represented the Respondent.

The Applicants’ submissions

The pool

4. The Applicants submitted that their pool, which is around 25 years old, was in good useable condition when they came to the property 6 or 7 years ago. A few years ago, their son noticed a lump in the bottom of the pool. They drained the pool 2½ years ago and have not used it since. They submitted that the lump at the bottom of the pool was caused by tree roots. They tried to speak with the Respondent, who, according to the Applicants, took no action. They received advice that tree roots damaged the pool. They obtained a quote for $83,000 to replace the pool with a new concrete pool.

The fence

5. The Applicants submitted that the three neighbouring trees are pushing against the fence so that it leans into their property. They submitted that branches have fallen and damaged the fence.

Debris

6. The applicants submitted that debris falls from the trees. It has damaged their deck and outdoor furniture. It falls onto their garage roof and into their pool. Their pool pump caught fire after debris built up around it.

Injury

7. The applicants submitted that they no longer use the outdoor area near the trees due to their fear of falling branches, or that the trees might fall over.

Evidence

8. The applicants submitted that they minimised their costs by not engaging any experts, in accordance with the Court’s Practice Note – Class 2 Tree Applications. Mr Anne opined that the damage and its cause was self-evident during the onsite hearing. Due to other health-related issues, the Applicants did not want to prolong the proceedings by gathering more evidence.

The Respondent’s submissions

Evidence

9. The Respondent submitted that the application completely lacks any evidence of any element of damage or injury claimed by the Applicants.

The pool

10. The Respondent submitted that the Applicants’ pool appears to have been unused for some time. There is no evidence regarding the lump at the bottom of the pool found by the Applicants’ son, nor tree roots that allegedly caused the damage. Mr Learmonth submitted that the pool is old and has been sitting empty for over two years, subjected to extreme heat, rain, and external pressure from soil with no corresponding internal pressure from water. These factors are likely to have led to the pool’s condition observed at the hearing. Mr Learmonth said that, even if the Court found that the Respondent’s trees had damaged the pool, the Applicants were asking for the Respondent to pay for a new concrete pool to replace an old fibreglass pool at the end of its life.

The fence

11. The Respondent submitted that the Applicants have shown no evidence of damage to the fence, nor have they sought any relief for fence damage in their application.

The outdoor area

12. The Respondent submitted that the Applicants have not shown that debris from the trees has damaged their deck, furniture or other parts of their property. The deck near the trees is in poor condition due its age and weathering.

Injury

13. The Respondent submitted that the trees are unlikely to cause injury to anyone.

Findings

The trees

14. Three mature cypress trees approximately 10 metres tall grow on the Respondent’s land adjacent to the common boundary shared with the Applicants. They appear, from a ground-based inspection, healthy and structurally sound. In this judgment the trees are numbered T1 to T3 from west to east.

Pool

15. Roots pointed out to me in the exposed soil around the pool were not numerous and were small. One root was slightly larger than 10 mm in diameter; others were significantly smaller. Applying my own expertise to my observations at the hearing, I cannot accept that these tree roots have damaged the pool. There is a lack of any evidence to persuade me otherwise. I find the pool’s condition is most likely due to other factors, including its age. No compensation will be ordered for the pool.

Fence

16. The only point of contact between a tree and the fence is T3 and some lattice. The lattice appears to serve no purpose here and could be removed. If there is any damage to the fence, it is de minimis. I also note that the Applicants seek no relief in their application relating to fence damage.

Other damage

17. Branches of trees T2 and T3 close to the garage roof might cause some minor damage if they strike the roof during strong winds. This could be easily prevented by some pruning.

Debris

18. If indeed any damage has resulted from the trees’ debris sitting on the Applicants’ deck or other property, this could be avoided by reasonable property maintenance, as per the tree dispute principle established in Barker v Kyriakides [2007] NSWLEC 292.

Injury

19. I find that the Applicants’ fear of falling branches or trees is unfounded. No large parts of the tree appear likely to fail within the foreseeable future. Two dead branches lying on the ground were not large and had fallen into the area between the garage and the fence, which appears to be infrequently used. I do find that low branches overhanging the Applicants’ property might injure someone as there is insufficient clearance for a person to pass along the fence. Removing several low branches would prevent this.

Orders

20. As a result of the foregoing, the Court orders:

1. The application is granted to the extent of the following orders.

2. The Respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works within 30 days of the date of these orders:

1. prune branches (no pruning of stems) of trees T1–T3 to provide clearance of 2 metres above ground level along the Applicants’ side of the boundary fence;

2. prune branches (no pruning of stems) of T2 and T3 to provide clearance of 1 metre between the Applicants’ garage roof and any branches.

3. All tree work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’ and AS 4373–2007 ‘Pruning of amenity trees’.

4. The Respondent is to provide the Applicants with at least 2 days’ notice of the works.

5. The Applicants are to provide any access required to complete the works during reasonable hours of the day.

6. The application for compensation is refused.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 20 September 2022