Huang v Maughan-Cislowski

[2024] NSWLEC 1204

Land and Environment Court

New South Wales

Medium Neutral Citation:

Huang v Maughan-Cislowski [2024] NSWLEC 1204

Hearing dates:

15 April 2024

Date of orders:

15 April 2024

Decision date:

15 April 2024

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1)   The application to remove the tree is refused.

(2)   The application to repair the applicant’s path and dwelling is refused.

(3)   The application to replace the fence is upheld.

(4)   Within 30 days of the date of these orders, the applicant and the respondent are each to obtain at least one and no more than two quotes from suitable fencing contractors to remove and dispose of the existing fence along the entirety of their common boundary and replace it with a 1.8-metre timber paling fence, adjusting palings and rails as needed to maintain at least 150 mm clearance to all parts of the camphor laurel tree (‘the fencing works’).

(5)   Within 40 days of the date of these orders, the applicant and the respondent are to swap quotes from Order (4) and select the cheapest quote, or another if they so agree.

(6)   Within 90 days of the date of these orders, the applicant and the respondent are to engage the fencing contractor selected at Order (5) to carry out the fencing works, with a contract for each to pay 50% of the amount quoted for the fencing works.

(7)   Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to prune the camphor laurel so that no branches and foliage are within 2 metres of the applicant’s dwelling (‘the tree works’). The tree works are to be done in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016.

(8)   The respondent is to give the applicant 2 days’ notice of the tree works.

(9)   The applicant and the respondent are each to allow all access necessary for the fencing works and the tree works during reasonable hours of the day.

(10)   The exhibits are returned, other than Exhibit A.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – damage to property – damage to dividing fence – whether tree removal is required – orders for fence replacement and tree pruning

Legislation Cited:

Dividing Fences Act 1991, s 13A

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6, 7, 9, 10, 12

Cases Cited:

Huang v Maughan-Cislowski [2011] NSWLEC 1192

Texts Cited:

Australian Standard, AS4373-2007 Pruning of amenity trees, 2007

Burwood Development Control Plan 2023

Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016

Category:

Principal judgment

Parties:

Rebecca Huang (Applicant)
Neta Maughan-Cislowski (Respondent)

Representation:

Counsel:
R Huang (Self-represented) (Applicant)
T Cislowska (Agent) (Respondent)

File Number(s):

2023/445155

Publication restriction:

No

Judgment

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

Background

1. COMMISSIONER: Rebecca Huang (the applicant) and Neta Maughan-Cislowski (the respondent) are neighbours in Burwood. A large camphor laurel (Cinnamomum camphora) (the tree) grows in Ms Maughan-Cislowski’s front garden near their common boundary. Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), Ms Huang has applied to the Court seeking orders for: the tree to be removed at the respondent’s cost; the fence along the common boundary to be replaced with costs apportioned two-thirds to the respondent; and repairing, at the respondent’s cost, damage to a concrete path and some brickwork and tiles at parts of the applicant’s dwelling.

2. Ms Maughan-Cislowski wants to retain the camphor laurel. She agrees to the fence being replaced, but with costs to be shared equally by the parties. She refutes that the tree has damaged other elements of Ms Huang’s property.

3. In 2011, Ms Huang sought orders in this Court relating to another tree (a white cedar) on Ms Maughan-Cislowski’s land: Huang v Maughan-Cislowski [2011] NSWLEC 1192 (the 2011 proceedings). In those proceedings, the Court ordered removal of the white cedar at Ms Maughan-Cislowski’s expense and, if Ms Huang carried out repairs to her concrete path, some compensation paid by Ms Maughan-Cislowski to Ms Huang towards the cost of that work. I mention this here because there appears to be some overlap regarding the areas and extent of damage between evidence in the 2011 proceedings and evidence here.

4. The hearing took place onsite, allowing the Court to inspect the tree, elements of damaged property, and the surrounding environment. Ms Huang wished to rely on an ‘Engineering Tree Assessment’ report relating to damage to her property and the cause of the damage (the tree, according to the report). That report was written by her son, Yuffrey Huang, who also provide some translation support and advocacy for his mother during the hearing. Both Ms Huang and her son expressed surprise when I explained that the Court could not rely on the applicant’s son to present evidence impartially. The report was accepted into evidence as a source of general information and is given no weight in this decision. Ms Maughan-Cislowski relied on a report by Geoff Nugent, arborist who also provided oral evidence during the hearing. I rely, too, on my own arboricultural expertise and experience in making this decision.

The tree

5. The camphor laurel is approximately 16 metres tall with a crown spread of some 16 metres. The tree has multiple stems up to approximately 50 cm in diameter, equivalent to a single stem diameter of more than one metre. It is mature, in good condition, with no apparent defects of any structural significance. Mr Nugent allocated ‘high’ retention value to the tree and stated that it is a prescribed or protected tree under s 6.1 of Burwood’s Development Control Plan.

6. The tree’s root buttress spreads across the boundary, but the tree is principally situated on Ms Maughan-Cislowski’s land. The camphor laurel is only a few metres from the stump that remains of the white cedar, removed in 2011 as per orders in the 2011 proceedings.

Framework for this decision

7. The Trees Act provides a path for a landowner to apply for orders to remedy, restrain or prevent damage to property on their land, or to prevent injury to any person, as a consequence of a tree that is situated on adjoining land (s 7 of the Trees Act).

8. Under Pt 2 of the Trees Act, the Court must be satisfied of several matters before making orders:

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(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.

9. At s 9 of the Trees Act, the Court has the power to make a broad range of orders as it sees fit to remedy, restrain or prevent damage to property or to prevent injury to a person. Before determining the application, the Court must consider the relevant matters at s 12 of the Trees Act.

The applicant made a reasonable effort to reach agreement

10. Ms Huang submitted that she has spoken with Ms Maughan-Cislowski many times about the tree and the problems it causes, and sought mediation twice through the Community Justice Centres. Ms Maughan-Cislowski submitted that she did not receive the two notices for mediation, and proposed that she be given an opportunity for mediation with Ms Huang. Nevertheless, Ms Maughan-Cislowski conceded during submissions that she had discussed the tree and the condition of the fence with Ms Huang, such that it seems she know at least of Ms Huang’s wish to have the tree removed. I am satisfied that Ms Huang has made a reasonable effort to reach agreement with Ms Maughan-Cislowski, and has given the required notice of her application.

The tree damaged the boundary fence

11. The parties share a common boundary of some 53 metres from Minna Street to Belgrave Street. The timber paling fence is, to varying degrees, dilapidated along the entire length of this boundary. Palings in the fence panels nearest the tree have been displaced by growth of the tree’s stem and buttress roots. Ms Huang described how palings near the tree had to be repeatedly fixed back onto the fence. I am satisfied that the tree has damaged the boundary fence. It follows that orders can be made in these proceedings (s 10(2)(a) of the Trees Act). Before determining any orders, I consider relevant s 12 matters below, but before that I will deal with the other elements of Ms Huang’s application.

Other elements of property damage

Root damage to the concrete path

12. A concrete path leads from Ms Huang’s front garden to, and then along, the side of her dwelling, passing within a few metres of the camphor laurel. A section of the path has been displaced, resulting in a vertical difference of several centimetres between the southern end of this section and the next section to the south. The displaced concrete is cracked several metres to the north, with less vertical displacement showing there. It is at least feasible that this section of the concrete path was displaced by tree root growth, and in the absence of other apparent causes I accept that this is the most likely explanation.

13. In the 2011 proceedings, Fakes C found at [9]–[10]:

“9 The slab in contention is the most northerly of the slabs that comprise the concrete path along the western side of the applicant's dwelling. Mr Draper's report describes its condition as being "rotated and raised along the fence edge, 36mm at its southern end and 20mm at its northern end". This was confirmed on site.

10 The slabs to the south appeared flat and undamaged. Another concrete path to the northeast appeared level and in relatively good condition.”

14. The slab described by Fakes C is alongside Ms Huang’s dwelling – it is the next section of the path continuing southward from the section I have described above. That is, the displacement of “20mm at its northern end” is the same displacement (by location) as the displacement at the southern end of the path section in these proceedings, and if that displacement is now greater than before, it has not been shown to be significantly so.

15. Ms Huang claims that the concrete path has been damaged further by the camphor laurel, but has undertaken no investigations to demonstrate this. Mr Huang, her son, relied on descriptions he found regarding the ‘zone of influence’ of tree roots, but undertook no investigations himself.

16. It is possible that the damage to the path observed in 2024 is largely the same as the damage observed in 2011, in which case it may have been caused by the white cedar. I cannot be satisfied that the camphor laurel has damaged the path, and therefore cannot make orders on this element of the application.

17. The concrete’s displacement results in a trip hazard, to be sure, but the trip hazard existed in 2011 and was a subject in the 2011 proceedings. That does not prevent consideration of further damage caused in the interim by the camphor laurel, but the situation would dissuade me from making any orders on this element of the application had I found the camphor laurel caused the damage. Orders (6)–(11) in the 2011 proceedings dealt with the concrete path:

“(6) Once the tree is removed, the applicant has 30 days to obtain 3 quotes for the replacement of the slab, including the removal of any roots below it. The applicant is to provide the respondent with a copy of the quotes in that time.

(7) In that time, the respondent may choose to obtain her own quotes. In doing this, the applicant is to provide all reasonable access to any tradespeople engaged by the respondent for the purpose of quoting.

(8) The respondent has 7 days from the receipt of the quotes from the applicant and any sought by her to choose a contractor to carry out the work, and to inform the applicant. If this is not done within the 7 days, the applicant chooses the contractor.

(9) The applicant is to engage and pay for the nominated contractor.

(10) The respondent is to reimburse the applicant 25% of the cost of the works within 30 days of the receipt of a tax invoice for the completed works.

(11) The replacement of the slab is to be completed within 90 days of the removal of the tree otherwise order 10 lapses.”

18. Ms Huang did not carry out any repairs to the concrete path. She did not replace the (2011) damaged slab. Had she done so, it is possible that any further damage might have been prevented.

19. I also consider that the tree’s value (discussed further below) justifies finding ways to repair the path without removing the tree. For instance, a path of compacted granitic sand could replace the concrete; or pavers could be used, allowing any displaced pavers to be lifted and re-laid in future. These are options that Ms Huang might wish to consider.

Root damage to the dwelling

20. Ms Huang also seeks orders for repairing the northwestern corner of her dwelling, where some brickwork is cracked. Although Ms Huang’s application seeks no orders for repairs to the tiled steps leading up to her verandah, Mr Huang’s report describes and shows those tiles.

21. Ms Huang has not undertaken any investigations to demonstrate causation of the damage to her dwelling. And again, the damage, at least to the corner of the dwelling, was described in the 2011 proceedings (at [16]):

“16 I observed a vertical crack from ground level to the floor of the verandah in the brickwork on the north-western corner of the applicant's rear verandah. According to a letter written by the applicant's son to the council dated 1 December 2010, he states that as an engineer, in his opinion the cracking is likely to have been caused by the roots of the tree.”

22. On the evidence before me, I cannot be satisfied that the camphor laurel has caused damage to Ms Huang’s dwelling, so the Court cannot make any orders on that element of the application.

The tree’s branches are likely to damage the dwelling’s roof

23. During the onsite hearing, Ms Huang pointed out branches of the camphor laurel that are touching or close to her dwelling’s roof. Her application seeks no orders for these branches to be pruned, but that is not surprising given that she seeks an order for the tree’s removal, and likely anticipated that such an order would be made. I observed the branches and I accept that they are likely to damage Ms Huang’s roof in the near future. An order will be made to prune the tree to provide some clearance to the roof.

The tree is unlikely to cause injury

24. Ms Huang submitted that the tree is likely to cause injury by causing trip hazards in the concrete path and the uneven ground between the path and the tree, where surface roots grow. As I described above, there are solutions available to Ms Huang for repairing the path that do not require the tree’s removal. Should she wish, level ground can be maintained closer to the tree by adding soil between surface roots.

25. Ms Huang showed the Court some small-diameter branches that she said have fallen from the tree recently. She is concerned that such branches could fall and injure her or others on her property. I observed no significant deadwood in the tree’s crown that would warrant the resources required for its removal.

Consideration of s 12 matters

26. The camphor laurel is close to the common boundary, with buttress roots extending across the boundary. Council consent would ordinarily be required to prune or remove the tree, although such consent is not required to carry out the pruning ordered below (s 6(3) of the Trees Act). The tree’s large canopy casts extensive shade. The tree provides cooling and other ecosystem services to the benefit of both parties.

27. The fence could easily be, and I find that it should be, replaced in a fashion that provides some clearance to the tree allowing for its future growth.

28. Ms Huang and Ms Maughan-Cislowski agree that the fence requires replacement along the entire length of their common boundary, and seek orders for this pursuant to s 13A of the Dividing Fences Act 1991. I accept that this is appropriate and that the Court has the power to make orders for this in these proceedings. Quotes already obtained by each of them may no longer be current, so orders will provide for fresh quotes to be obtained.

29. Ms Huang wants Ms Maughan-Cislowski to pay two-thirds of the cost of replacing the fence, arguing that the camphor laurel has contributed to the fence’s poor condition and that some additional vegetation on Ms Maughan-Cislowski ‘s close to the fence will require removal. However I will order that the cost of fencing works be shared equally by the parties. Firstly, the entire fence requires replacement regardless of the damage caused by the tree to one small section of the fence. Secondly, the additional vegetation on Ms Maughan-Cislowski’s property is not significant and its removal should not noticeably impact the quote. And thirdly, any additional cost for adjustments to the fence’s construction near the tree to allow some clearance to the tree should not be significant and, as I noted above, the tree’s retention benefits both parties.

Orders

30. The Court orders:

1. The application to remove the tree is refused.

2. The application to repair the applicant’s path and dwelling is refused.

3. The application to replace the fence is upheld.

4. Within 30 days of the date of these orders, the applicant and the respondent are each to obtain at least one and no more than two quotes from suitable fencing contractors to remove and dispose of the existing fence along the entirety of their common boundary and replace it with a 1.8-metre timber paling fence, adjusting palings and rails as needed to maintain at least 150 mm clearance to all parts of the camphor laurel tree (‘the fencing works’).

5. Within 40 days of the date of these orders, the applicant and the respondent are to swap quotes from Order (4) and select the cheapest quote, or another if they so agree.

6. Within 90 days of the date of these orders, the applicant and the respondent are to engage the fencing contractor selected at Order (5) to carry out the fencing works, with a contract for each to pay 50% of the amount quoted for the fencing works.

7. Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3), with all appropriate insurances, to prune the camphor laurel so that no branches and foliage are within 2 metres of the applicant’s dwelling (‘the tree works’). The tree works are to be done in accordance with AS4373-2007 Pruning of amenity trees and the Safe Work Australia, Guide to managing risks of tree trimming and removal work, 2016.

8. The respondent is to give the applicant 2 days’ notice of the tree works.

9. The applicant and the respondent are each to allow all access necessary for the fencing works and the tree works during reasonable hours of the day.

10. The exhibits are returned, other than Exhibit A.

D Galwey

Acting Commissioner of the Court

Decision last updated: 17 April 2024