Hughes v Norris

[2007] NSWLEC 368

Land and Environment Court

of New South Wales

CITATION:

Hughes v Norris [2007] NSWLEC 368

PARTIES:

APPLICANT
Michael Hughes and Jeanette Hughes

RESPONDENT
Les Norris and Janet Norris

FILE NUMBER(S):

20299 of 2007

CORAM:

Hussey C - Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Damage to pergola and paved area

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

18/06/2007

 
DATE OF JUDGMENT: 

21 June 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Hughes, litigant in persons
Mrs J. Hughes

RESPONDENT
Mr L. Norris, litigant in person
Ms J. Norris

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C
Thyer AC

Date21 June 2007

20299 of 2007 Michael and Jeanette Hughes v L. Norris

JUDGMENT

Background.

1 This is an application pursuant to s 7 of the Trees Disputes BetweenNeighbours Act 2006 concerning a tree located on a property at 9 – 13 Falder Place, Keiraville, which is owned by Mr L Norris.

2 The tree is a Silky Oak (Grevillea robusta).

3 The application has been made by Mr & Mrs M Hughes from 5 Ashcroft Place, Keiraville. Their application seeks orders from the Court that:

i) the tree be removed at the owners expense,

ii) that the owner reimburse them for expenses incurred in rectifying damage to the pavers and part of the pergola structure at the rear outdoor area of their property, caused by the Silky Oak root system.

Trees Disputes Between Neighbours Act 2006 (Act).

4 The relevant provisions of s 10(2) of the Act require the Court be satisfied that one or more of the following conditions are met, with respect to any tree the subject of an application, before the Court has jurisdiction to consider that tree.

5 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?

6 Only if one of 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?

7 We have considered the evidence presented and undertaken a site inspection to view the Silky Oak tree and note the following details:

• The tree is a mature specimen with an estimated of age in excess of 60 years, based on historical details presented and observations of the tree. It preceded the construction of the Hughes house.
• It is located in very close proximity to the common boundary with the Applicant's property, so that part of the canopy overhangs the pergola area and a section of Mr & Mrs Hughes' house.
• The root system of the tree extends into the applicants’ property.
• The applicants’ paved area and associated pergola has been constructed in close proximity to the common boundary fence and tree with a setback in the order of 300mm.
• A form of un-reinforced edge-beam has been constructed parallel to this common boundary apparently to contain and support the pavers and pergola structure.
• An area of the pavers (approximately 2.5m x 1m) adjacent to the tree has been uplifted displacing the pavers and part of the pergola structure.
• Evidence was presented that Council approved the pergola structure/location in 1988.
• Evidence was also presented that structural rectification work was required and undertaken to the applicants’ house, including the rear section adjacent to the pergola area. This was based on the advice of Abelas & Associates (Structural and Civil Engineers) who recommended works including significant underpinning, removal and replacementremoval and replacement of faultyfaulty brick piers, repairs to stormwater downpipes and provision of stormwater drainage. The following reference was also made;
• “A large tree on the eastern side of the property should be removed or alternatively a tree root barrier may be installed at least 1m deep in the ground, between the house and the tree."
• The majority of this work was undertaken and certified by MBK (consulting engineers), but the tree root barrier was not installed.
• The applicant has experienced the dropping of deadwood and other branches, including some relatively large branches onto the pergola area, which has incurred damage involving total costs in the order of $2596 for building repairs.
• In support ofits their request for the tree removal, the applicant tendered a report from Mr W Varley (Consulting Arborist). He undertook assessment of the tree and its environs saying that Silky Oaks seemed to reach senescence at around 30 - 40 years of age. However, he did not recommend removal of the tree.
• Insofar as the applicants request the removal of the tree to prevent further damage and possible injury to persons on their property, the respondent contends thatit he has undertaken pruning of the tree in the past and is prepared to do so again, on a regular basis.
• The respondent wishes to retain the tree on the property, to maintain the character of the area. In doing so, the respondent is prepared to undertake regular pruning of the tree to maintain it in a reasonable condition, so as to minimise risks and damage from branches dropping.

8 We have examined the tree and reached the following conclusions:

• The tree is mature and appears to be in reasonably good condition, with a small amount of deadwood that may indicate it is in the early stage of age related decline. However the tree may have a life expectancy in the order of 20 years, subject to the maintenance of reasonable environmental conditions and suitable regular branch pruning. Accordingly we do not consider the tree warrants removal at this stage.
• Nevertheless it has caused damage to the applicants property from branches dropping and root intrusion into the paved/pergola area.
• Further damage and possible injury from falling branches is likely to occur in the near future unless remedial action is undertaken.
• Taking into account the owner’s wishes to retain the tree and willingness to undertake remedial action in the form of immediate pruning of deadwood and branch reduction over the pergola area, together with a regular pruning program over the next at periods of no more than 5 years, we consider this should reduce possible risks to persons and property to a reasonable level, within the near future.
• We also note the parties’ agreement that the predominant winds are from a westerly direction, which is away from the subject pergola area, and we consider this is a factor in reducing any associated risks.
• With regard to the damage to the pavers/pergola it appears that the tree roots have contributed towards the displacement and damage to the pavers and pergola structure. However, we do not consider that the applicant has exercised due regard in electing to construct these works in such close proximity to the tree roots, without adequate design and structural provision for likely any tree growth root movement. The edge beam is partially above ground and not piered, reinforced or sufficiently spaced from the tree buttress and roots to allow for any lateral movement growth of the tree and its roots.
• The respondent, Mr Norris accepts that the tree roots have contributed to this damage and agrees to pay the applicant's full claim of $1783 for the nominated repairs. Also, he agrees to pay an additional $300 in respect of the applicant's insurance claim excess component for the cost of repairs resulting from the branch drop damage. Under the circumstances, we consider this agreement for full payment of the applicant's claim reasonable to reinstate the pavers and pergola. If the applicants wish to utilise an alternative form of construction, this would be at their discretion.

1. The respondent Mr Norris is to arrange removal of deadwood having a diameter of greater than 30 mm, and branch reduction by an AQF Level 3 qualified and insured arborist, from the Silky Oak overhanging Mr & Mrs Hughes property, to provide a maximum overhang in the order of 2m – 3m beyond the property boundary. Such work is to be completed by 30 July 2007, subject to entry availability onto Mr and Mrs Hughes' property.

2. All pruning is to be undertaken in accordance with the provisions of the Australian Standard for Pruning of amenity trees AS 4373 – 2007.

3. The respondent Mr Norris is to arrange ongoing regular pruning of the tree to maintain the requirements of Condition 1, at for a periods of no more than 5 years i.e. until 30 June 2012 the tree is removed.

4. The respondent Mr Norris is to pay the applicant's claim for damages of $2083, by 30 July 2007.
___________________ ___________________
R Hussey P. Thyer
Commissioner of the Court Acting Commissioner of the Court
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