Johnson v Budden

[2021] NSWLEC 1749

Land and Environment Court

New South Wales

Medium Neutral Citation:

Johnson v Budden [2021] NSWLEC 1749

Hearing dates:

15 December 2021

Date of orders:

15 December 2021

Decision date:

15 December 2021

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See orders at [41] below.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – tree causing damage to fence and wall – is tree overhanging house causing excessive maintenance - whether damage to house is caused by the tree

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 8, 9, 10, 12

Cases Cited:

Barker v Kryiakides [2007] NSWLEC 292

Hendry & anor v Olsson & anor [2010] NSWLEC 1302

Roberts vand Denham [2010] NSWLEC 1269

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Stevens v Russell [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Texts Cited:

Safework Australia ‘Guide to managing risks of tree trimming and removal work’ July 2016

Category:

Principal judgment

Parties:

Rachael Johnson (Applicant)
Simon Budden (Respondent)

Representation:

R Johnson (Self-represented) (Applicant)
P Jayne (Solicitor) (Respondents)

Solicitors:
SWS Lawyers (Respondent)

File Number(s):

2021/290706

Publication restriction:

No

Judgment

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

Background

1. The applicant, Rachael Johnson, shares a side boundary between her property and that owned by the respondents, Simon and Vicki Budden, in Rutherford, in the Maitland Local Government Area (Council). The respondents’ property is leased to tenants. Ms Johnson occupies her residence, which she has owned for many years. A dispute between the parties appears to have originated with stormwater issues in 2012.

2. At issue is a Cinnamomum camphora (Camphor laurel) (the tree) that is growing close to the boundary in the respondents’ rear yard. Ms Johnson claims that it has caused, is causing, and is likely to cause damage to her property in the near future.

3. Ms Johnson provided evidence of correspondence to Mr Budden, to his real estate agent (the agent), and attempts to organise mediation through the Community Justice Centre, all of which were apparently ignored by the respondents. Mr Budden claims to have not received much of this correspondence.

4. As her claims remained unaddressed, Ms Johnson commenced proceedings in 2021, pursuant to s 7 of Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), in order to remedy damage as a result of the tree.

The applicant’s claim

5. Ms Johnson seeks for the court to consider making orders “to remedy and prevent a destructive and invasive” Camphor laurel tree from (causing) any further damage to her property. As evidence of damage, she notes;

1. Damage to common fence.

2. Cracking of concrete and starting to lift (concrete) slab.

3. Cracked pipes and minimal water pressure, and fears that another pipe has been damaged (having previously replaced the downpipe closest to tree).

4. Cracked the sewer pipe that is located in my backyard.

5. $10,000 Sandstone retaining wall appears to have been pushed out, and lifting of concrete.

6. Fear that the intrusive roots have moved my home foundation as I now have internal cracks in the walls and ceiling.

7. Intrusive branch has cracked a solar panel, claimed to be uneconomical to repair. The tree covers my solar hot water system, unable to turn off boost system as we will have no hot water.

8. Damage to roof from large branches falling during storm.

9. Branch grew between gutter and roof line, has pulled gutter away from the house, and as water could not escape via the downpipe, water has cascaded through the roof line and damaged my internal ceiling.

10. Side of the house is constantly damp and receives minimal sun. Black and white mould on ceilings and walls from the moisture. Downstairs area of the house is uninhabitable (and) previous attempts to mitigate damage have been unsuccessful.

11. Our family dog is unable to live with us due to suspected reaction/ illness from possible ingestion of Camphor seeds.

12. Camphor seedlings establish between house and concrete – very hard to kill.

6. Ms Johnson seeks for the court to order the respondent to pay for either pruning the tree to 1.5 m below her gutters, or complete removal of tree and stump to prevent further growth and damage, and to award compensation for past and current damage to property.

The respondents’ case

7. Mr and Mrs Budden resist these claims, on the basis that insufficient evidence has been provided to prove links between the tree and property damage. They also claim that since discussions between the parties in 2018, they had explicitly granted the applicant permission to enter their property for the purpose of pruning overhanging branches from the tree but had chosen not to do so.

The on-site hearing

8. The tree was about 13 metres tall, with a canopy spread of approximately 10 metres, and trunk diameter at breast height (DBH) of about 375mm. At the onsite hearing, the tree’s canopy was dense and healthy. This trunk base is located directly adjacent to the parties’ shared metal panel boundary fence, and as the trunk base thickened, it had bowed the base of the fence in, such that it encroached into the applicant’s property. At this point, the damage is minor, but the respondents concede that this is caused by the tree.

9. The Court moved to the applicant’s property to assess the extent of damage attributable to the tree, and for submissions.

10. Other than the fence distortion, there was evidence of movement, cracking and distortion of a sandstone retaining wall, and minor lifting of concrete. About a quarter of the dense canopy overhung the roof.

Jurisdictional requirements

11. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

12. Ms Johnson has satisfied the requirement under s 8(1)(a) of the Act: to serve notice to the respondents more than 21 days prior to the proceedings.

13. She has also satisfied s 10(1)(a) of the Act: to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated, as displayed by contact attempts noted above at [3].

14. The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant’s property, or is likely to cause injury to any person.

15. The tree has caused damage to the common fence, albeit minor, and s 10(2) of the Trees Act is therefore engaged.

16. The remaining 11 claims made by the applicant are interrelated and may roughly be grouped into three categories.

Raised and cracked concrete, and sewer pipes, retaining wall damage, reduced water pressure, foundation damage

17. Camphor laurels are generally well anchored with large root systems. This tree is sufficiently large and vigorous to be causing such damage, but it is also far enough from the house and retaining wall that it is not necessarily the case. There are also alternative damage explanations to consider.

18. Given that the onus is on the applicant to prove her case (Roberts vand Denham [2010] NSWLEC 1269 at [11]), Mr Jayne, Solicitor for the respondents, noted the applicant’s claims lacked substantiating evidence.

19. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said “”something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage”.

20. In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that:

“it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required.”

21. Though excavation of concrete and areas of the retaining wall would be disruptive, in absence of this having occurred, there was no exposed root presence to illustrate a nexus between the tree and the damage, beyond a theoretical possibility. The respondents note that the structure of the retaining wall and nature of its foundations are unknown, and that stormwater may flow towards the wall, and thus eroded and damaged it.

22. The applicant noted that her sewer pipe had been cracked about 13 years ago and that she feared further damage as a result of tree roots, but no invoices or other evidence was provided to confirm the tree as the cause of prior sewer pipe damage, and nor was concern about future damage substantiated.

23. Even if damage to sewer pipes in the applicant’s property had been found to engage the jurisdiction of the Trees Act, the Court considers wear and tear that is likely to have occurred over time when contemplating apportioning the costs of repairs between the parties, as some pre-existing jointing defects or other cracks are likely to have existed before the tree’s roots could enter the pipe. This normally arises at junctions of pipes that were not adequately sealed upon installation, and/or where the joint sealant has deteriorated over time. Presuming the pipes were adequately installed and/ or repaired about six years ago, there is no reason to be unduly concerned about roots entering sewer pipes.

24. Ms Johnson’s concerns about reduced water pressure are ambiguous and, though the two appear unrelated, have been conflated with downpipe issues. Reduction of water pressure is unlikely to relate to the tree unless water supply pipes have been crushed or bent, and no evidence has been provided to support such a notion.

25. Ms Johnson fears that recent internal cracks in walls and ceilings indicate that ‘intrusive roots’ have moved her home foundation, but she provided no evidence to support her concerns. Houses move in response to shrinking and swelling of clay soils, and the 2018 repair of the respondents’ previously unregulated storm water, the vastly altered weather patterns after the drought broke in early 2020, and the surface flow of stormwater from rear downpipes close to foundations, may have individually or collectively altered moisture levels, and caused internal cracking. Given this range of possible causes, it is certainly unreasonable to link such damage to tree roots without evidence to prove a nexus.

26. As a result of insufficient evidence, Ms Johnson’s claims regarding damaged concrete and retaining wall, cracked sewer pipes, walls and ceilings, and reduced water pressure are set aside.

Branches encroaching over roof, shading and damaging solar panels, storm damage, downpipe damage, and mould.

27. The second group of claims relate to impacts from ‘intrusive’ branches. Though the applicant appeared frustrated that branches and foliage encroached over her land, this alone does not engage the Trees Act. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (‘Robson’), discussing the issue of nuisance at [56], his Honour states that under the Trees Act, “mere encroachment is insufficient to complete a cause of action.”

28. His Honour also addresses the issue of debris falling from trees at [171] of, Robson where he says:

“However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not “damage to property on the land” within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour’s land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.”

29. Pursuing the respondents’ position, Mr Jayne noted the associated Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 (‘Barker’), which, at [20], states that:

“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.”

“The dropping of leaves, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering the removal of or intervention with an urban tree.”

30. The respondents’ also claim that they “have never denied the applicant an opportunity to conduct her own home maintenance”. They noted granting the applicant’s partner access to their property in 2018 to prune the tree, and this was uncontested by Ms Johnson. It appears, however, that no such pruning has been carried out, regardless that Camphor laurels are exempt from requirements of Council permission, and that it would have eliminated many of the applicant’s overshadowing and damage concerns.

31. Specifically, quotes related to claims for branches cracking a solar panel, and roof damage during a storm repaired by the Rural Fire Service, for Solar Hot water changeover, complete roof replacement, and roof painting, do not provide any indication or proof as to the cause of damage, or basis of such works.

32. When the Court contemplates making orders as a result of damage, a range of discretionary factors in s 12 of the Trees Act are considered. Section 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant.

33. With respect to the applicant’s claim that a branch grew between the gutter and roof line, pulled the gutter away from the house, prevented water escaping through a downpipe, and instead caused it to enter her roof line and damaged her internal ceiling, this may be seen as a failure of the applicant to maintain her own property.

34. A situation like this does not develop spontaneously, but occurs over a sustained period, starting with a small branch growing into a crack or crevasse. Even with occasional house inspections, it is reasonable to expect that such a branch would be noticed and remedied so as to prevent damage.

35. Ms Johnson’s claims that the side of the house is constantly damp and receives minimal sun, that black and white mould has grown on ceilings and walls from the moisture, and that her downstairs area of the house is uninhabitable. With respect to mould, in Hendry & anor v Olsson & anor [2010] NSWLEC 1302, at [11] to [14], the Tree Dispute Principle in Barker was extended to include the cleaning of mould and slime, so no remedy is available under the Trees Act for this element. The release of stormwater across concrete and soil surfaces from open downpipes would likely also be impacting moisture levels in this area.

36. In summary, any claims for compensation for roof damage lack sufficient evidence, the applicant has failed to maintain her own property by pruning and disentangling overhanging branches, and claims related to cleaning of mould from walls and ceilings or leaves from gutters are dealt with under the maintenance expectations outlined in Barker.

Miscellaneous claims about illness to family dog and difficulty killing Camphor laurel seedlings

37. Once again, no specific evidence has been provided to link the dog’s malaise to the tree. With respect to killing seedlings, the respondents note that a Fact sheet on Camphor laurels provided in Ms Johnson’s application includes a section on both mechanical removal and herbicide application. I concur with the respondents’ comment, that “while this may be an annoyance, it is clearly a home maintenance issue”, that is covered by the Tree Dispute Principle in Barker.

Conclusion

38. After consideration of all these claims, while damage to the common fence by the tree has engaged s 10(2) of the Trees Act, I am not satisfied that the applicant has shown the required nexus between the tree and other purported damage, nor provided evidence sufficient to prove her case for compensation for previous damage.

39. From the arboricultural expertise I bring to the Court, and the rapid apparent growth rate of the tree, I am satisfied that damage is likely in the near future. Though a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, deems the ‘near future’, as a rule of thumb, to be a period of 12 months from the date of the determination, I am not bound by such a period, and conclude that property damage to the applicant’s property is likely in the short to medium term.

40. As a result, after consideration of the various benefits the tree may provide through analysis of s 12 of the Trees Act, the orders I shall make are for tree removal.

Orders

41. The Court orders that:

1. The application is granted.

2. The respondent shall, at his expense, employ contractors to poison the Cinnamomum camphora (Camphor Laurel) in his rear side yard, using a frill ring for herbicide application low on the trunk. This will require access to the tree base from both parties’ properties.

3. At least 21 days after poisoning, by which time the Camphor Laurel should display extensive leaf death and defoliation, remove the Camphor Laurel to near ground level, without compromising the fence’s role as a sealed barrier between the properties.

4. The works in Orders 2 and 3 shall be completed by minimum AQF level 3 qualified arborists, with all appropriate insurances, and in compliance with Safework Australia WHS guidelines for tree trimming and removal work 2016.

5. The applicant shall allow all reasonable access for the contractors to complete the works, subject to a minimum of 48 hours written notice, of the date and approximate start time, being provided to the respondent. Even if access is not required, the respondent shall advise the applicant of the date and approximate start time for works, subject to a minimum of 48 hours written notice.

6. All works shall be undertaken during reasonable working hours.

7. All works shall be completed within 120 days of the date of these orders.

……………………………..

J Douglas

Acting Commissioner of the Court

**********

Decision last updated: 08 June 2022