Kirkwood v Harvey

[2009] NSWLEC 1292

Land and Environment Court

of New South Wales

CITATION:

Kirkwood v Harvey [2009] NSWLEC 1292

PARTIES:

APPLICANT
Emma Kirkwood

RESPONDENT
Helen Harvey

FILE NUMBER(S):

20281 of 2009

CORAM:

Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- Removal of a tree.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

28 August 2009

EX TEMPORE JUDGMENT DATE:

28 August 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms E Kirkwood (litigant in person)

RESPONDENT
Ms H Harvey (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

28 August 2009

20281 of 2009 Emma Kirkwood v Helen Harvey

JUDGMENT

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

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mrs Emma Kirkwood of 108 Stanmore Road Stanmore against the owner of a tree growing at the rear of 106 Stanmore Road. The owner of that property is Mrs Helen Harvey.

2 The applicant is seeking the removal of a mature Celtis australis (Hackberry) as she contends that the roots of this tree have caused, are causing, and will continue to cause, structural damage to her house and paving.

3 The respondent does not want to remove the tree.

4 The properties 106 and 108 Stanmore Road are semi-attached dwellings of two storeys and of brick construction. According to Mrs Harvey, the houses were built in 1896 on the site of a former sandstone house. The front sections of the houses are of triple brick construction. The applicant did not dispute this information.

5 Mrs Harvey has lived in her house since 1985 and stated that cracks in her house have been present since that time. The tree at that stage was relatively small and has grown to a considerable size with a diameter at breast height of about 900 mm. The Celtis is one of several large trees growing in the respondent’s garden.

6 Mrs Harvey produced photographs of 108 Stanmore Road taken about 24 years ago when the then owners of that property were carrying out repairs and renovations. In those photographs, she was able to point to cracks in various parts of 108 that were visible at that time.

7 Mrs Kirkwood purchased her property in 2006. Some cracks were evident, but as the house had been recently painted, many cracks were not obvious.

8 In March 2007, Mrs Kirkwood engaged United Consulting Engineers to provide a structural report. Mr Mark Boudin carried out a visual inspection of the property noting various cracks throughout the house. Some of these he put down to normal building settlement but others to direct and indirect effects of the roots of the Celtis. Despite not undertaking any investigation for roots or providing any evidence that the roots were causing the damage to the house, he recommended the removal of the tree.

9 Similarly, some two days after the engineer’s report, and in good faith, Mrs Kirkwood sought an arborist’s report from Bradshaw Tree Services. In that report, Tristan Bradshaw stated that the tree was healthy and structurally sound but that the cause for concern was the structural damage being caused to the house and pavement by the tree. He goes on to state “Undoubtedly this tree is causing the large slabs of concrete to lift unevenly.” He also refers to “cracks in the rear laundry, in the dining area and upstairs in the adjoining wall between 106 and 108, and cracks in the kitchen, bedroom, dining room and decking walls”.

10 Mr Bradshaw undertook no investigations for roots yet his report makes unsubstantiated findings that the cracking is related to roots of the Celtis. He also recommends the removal of the tree.

11 Therefore, despite the applicant engaging two specialists, neither of these reports is of assistance to the Court. There is a reasonable expectation that technical specialists should provide actual evidence and substantiate their assumptions.

12 The cracks in the applicant’s house were inspected. There were numerous cracks throughout the house, including sections away from the tree. There was a section of lifted sandy render on the wall adjoining the two properties. This appeared to be the original render. Sections of plaster or render had a ‘drummy’ sound when tapped. The cracks appear to be consistent with an old house on slightly reactive soils. The respondent pointed out cracks on her house and on 110 Stanmore Road.

13 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

14 The Court must also consider a number of matters under section 12 of the Act. The relevant clauses in this case are:

(a) The tree is wholly located on the respondent’s property.
(d) According to the respondent’s submission, the tree is frequented by a range of native fauna, and thus makes a contribution to local biodiversity.
(e) The tree adds to the scenic value of the land on which it is growing.
(h) The applicant engaged the service of a structural engineer and an arborist. The respondent has had the tree regularly inspected and worked on by an arborist.

15 Whilst there may be some contribution from the tree to the cracking of the house, direct or otherwise, this is not proven. In the absence of evidence of roots, the cracks in the house are most likely to be a consequence of the age of the house, normal movement and settling over time, the many additions and renovations over the years, reactive soils and periods of wet and dry.

16 On balance, as none of the tests in section 10(2) are adequately satisfied, the application to remove the tree is refused.

___________________

J Fakes
Acting Commissioner of the Court