MacPhail v Ware

[2008] NSWLEC 1213

Land and Environment Court

of New South Wales

CITATION:	MacPhail v Ware [2008] NSWLEC 1213
PARTIES:	APPLICANTS R & G MacPhail RESPONDENTS K & R Ware
FILE NUMBER(S):	20296 of 2008
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Trees (Neighbours) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	14 May 2008
EX TEMPORE JUDGMENT DATE:	14 May 2008
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENTS In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

14 May 2008

08/20296 MacPhail v Ware

JUDGMENT

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1 COMMISSIONERS: Mr and Mrs MacPhail live at 37Fowler Road, Illawong – a battle-axe allotment. Mr and Mrs Ware live at 35 Fowler Road along the north-eastern side of this battle-axe allotment.

2 There are a number of trees planted in both properties along the McPhails’ access way and extending into the MacPhails’ property close to the common boundary between them. Mr and Mrs MacPhail have made an application of the Court pursuant to the Trees (Dispute between neighbours Act) 2006 concerning three of those trees.

3 Two of those trees are located on the boundary and we have considered whether in each case they are located “principally” on the Wares’ property as is required by s 4(3) of the Act to give us jurisdiction to deal with them. This issue will be dealt with when considering each of the trees.

4 We are also satisfied pursuant to s 10(1) of the Act that Mr and Mrs MacPhail have endeavoured to resolve the dispute between themselves and the Wares at various times with respect to the various trees on dates since June 2007.

5 At this hearing, the MacPhails have indicated that they have not drawn these matters to the attention of the Wares prior to June 2007 – being a matter which we will take into account when considering what decision, if any, we should make with respect to any of the trees.

6 The applications with respect to each of the trees fall in two parts. The first is an order for removal of the tree being sought and the second is an order for compensation payment being sought with respect to what Mr and Mrs MacPhail say is the damage caused by the roots of each of the trees to the concrete slabs of their driveways.

7 For 35 m of the driveway from Fowler Road toward the MacPhails’ house, the driveway comprises two 900 mm wide concrete slabs with a 600 mm grass strip between them. From a turning point in the driveway, a further 25 m (subject to a proposal for re-concreting at full width) is presently 2.4 m of concrete. The re-concreting of the driveway is proposed to be across the whole of the width of the driveway for the whole of the 60 m length of that driveway.

8 Mr and Mrs MacPhail obtained three quotations for the replacement of this 60 m portion of the driveway (being an area, we calculate, in total of 144 sq m). Those quotations range from, in rough terms, $12,000 to $18,000 – thus representing a price range of $83 per sq m to $125 per sq m.

9 The driveway has a number of cracks and instances of lifting at various expansion joints and at intermediate points between them. There is, at least at the innermost point of the relevant section of the driveway, some evidence of subsidence as well.

10 Mr and Mrs MacPhail have advised us that they proposed to replace the 60 m of the driveway whatever our decision about compensation as they have been advised that they have a legal exposure for any injury to any visitor if they do not do so.

11 We therefore proceeded to consider the matter on the basis that the driveway will be replaced and to consider what contribution, if any, the Wares should be obliged to make on that basis.

12 The application is for removal all three of the trees and for an appropriate proportionate payment of compensation costs towards the replacement of the driveway.

13 When the Court considers applications pursuant to the Trees (Dispute between neighbours Act) 2006, there are a number of tests which we are obliged to consider that are set by s 10(2)(a) and (b) of the Act. 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 a cause likely of injury to any person?

14 If any one of the questions is answered “Yes” with respect of any one of the trees, with respect to that tree we are then obliged to consider questions of discretion:

• Is the damage or risk sufficiently serious to warrant the Court’s intervention?
• If it is, what should the Court order?
• Who should do it?
• Who should pay for it and how long should allowed for this to happen?

15 It is against that background that we turn to consider each of the three trees which are the subject to the application – starting with a Jacaranda (Jacaranda mimosifolia) closest to the entrance to Mr and Mrs MacPhails’ property. Mr Ware has provided information to us of root pruning that he has undertaken and trenching that he has dug in the vicinity of that tree.

16 At the nearby expansion joint in the MacPhails' driveway, there is a lifting of one of the slabs. We have observed that there is both a moss and light line on the edge of the slab closest to the road which is quite definite and shows no sign of recent increase in height. We are therefore satisfied that, although on the balance of probabilities we would consider that the roots of the Jacaranda are likely to have caused that lifting, no lifting has taken place (to any measurable extent) within the period since Mr and Mrs MacPhail drew the matter to the attention of the Wares.

17 The question of knowledge and opportunity to abate the damage that is caused by the tree is not a matter which we are obliged to take into account in considering the tests under s10(2) of the Act, but, as Preston CJ discussed the case of RobsonvLeiscke (2008) NSWLEC 152 at paragraphs 205 to 208, the opportunity for a person to be aware of and take action with respect to damage being occasioned by their tree is a matter which it is appropriate for the Court to take into account as a matter of discretion.

18 We are satisfied that:

• first, the Wares’ jacaranda’s roots are likely to have caused damage to be the MacPhails’ driveway;
• second, the Wares had no realistic opportunity to abate that nuisance prior to it being drawn to their attention;
• third, the actions undertaken by Mr Ware to prune the roots on the side of the MacPhails’ drive has been a proper and prudent response when the matter was drawn to his attention; and
• finally, this root pruning together with the laying of a properly constructed, reinforced driveway is likely to mean that there would not be further damage to a new driveway in the foreseeable future.

19 We are therefore satisfied that there is no basis upon which we could order the removal of or interference with the Jacaranda and, on the basis of absence of notice to the Wares, we are satisfied that there is no basis upon which we should order any contribution to reinstatement of the driveway for damage which might have been caused by the Jacaranda.

20 The gum tree (sp unknown), which is somewhat further toward the McPails’ house and located in the vicinity of the Wares’ garage, has been substantially removed as it has been cut to a height of approximately 2.25 m above ground level. We are satisfied, on our observation of it, that it is dead - there being no evidence of any epicormic shooting from the residual trunk.

21 Similar positions arise, with one exception, with respect to notice of old damage that may have been occasioned to the driveway with respect to this tree. Mr Ware conceded that there is a portion of the north-eastern part of the adjacent section of the MacPhails’ driveway which has been cracked as a consequence of the persons who undertook the removal of the tree on his instruction dropping a portion of the trunk on the driveway slab in the process.

22 We observe, in respect of this tree, that we are satisfied that it probably straddles the boundary between the properties but that, on our consideration of such information as we are able to draw from a survey plan provided by the MacPhails, it is significantly more than 50% located on the Wares’ property. There was no prior notice, as earlier discussed concerning the jacaranda and, as a consequence, no opportunity to abate such damage might have been caused (with the exception of the cracking by the dropping of the trunk section).

23 We are satisfied that the tree is entirely dead and it is therefore not likely to cause any future damage to the existing driveway or any re-laid driveway.

24 There was some discussion, during the course of the hearing, of whether the parties might reach an agreement about its removal if we were not to order its removal. We are satisfied that there was not sufficient detail for us to record any such agreement. We are satisfied that, as there is not likely to be any future damage, we would not order the removal of the reminder of the stump but if the parties are able to reach agreement they will be able to do so as part of that agreement.

25 However, we are satisfied that an area of the driveway has been damaged by Mr Ware - we are satisfied that that is of the order of 2 sq m of the driveway impacted. We have considered what 2 sq m or thereabouts would be as a proportion of the proposed 144 sq m replacement. We have concluded that Mr and Mrs Ware should contribute, for this element, $200 toward the cost of the replacement driveway. We have based that calculation on the lowest of the three quotations received. We will therefore order that Mr and Mrs Ware are to pay Mr and Mrs MacPhail $200 within 28 days of the service upon the Wares of a receipted invoice for the reconstruction of the driveway including the relevant portion and that such invoice service is to be not prior to the first of August this year.

26 With respect to the Liquidambar (Liquidambar styraciflua), the third tree in the MacPhails’ application, we have considered its location on the boundary between the properties. We accept Mr Ware’s evidence that the adjacent posts on the swimming pool fence (which has been bent around tree) were erected on the boundary in the original fencing. We accept his evidence that these posts had not subsequently been moved when that original fencing was converted to swimming pool fencing. On the basis of that and the substantial root flare on the Wares’ side of the fence, we are satisfied that the tree is at least 60% on the Wares’ property and therefore satisfies the relevant test under s 4(3) of the Act.

27 The Liquidambar is 12 to 14 m high, on our estimates. There is a major lift at either end of the adjacent driveway slab and is also some subsidence at the northern end of that slab. There are major tripping hazards at each end of the slab - sufficient that the MacPhails have taken to driving partially on the lawn to the west to avoid the lift at the Fowler Road end of this slab and have placed pot plants there to alert people to the risk.

28 However, the same position arises with respect to the notification to the Wares of this damage as arose with respect of the other matters. Indeed, it would appear that no notice of this element was given to the Wares prior to, at the earliest, November 2007.

29 We have also considered other alternative causes in our examination for possible causes of the extent of the lift and subsidence in this area. We are satisfied that there are a significant number of trees which have contributed to the damage of the driveway in this area.

30 There are a number of golden cypress trees on both properties which we are satisfied have contributed to the damage. There are a number of other cypress - some of which have been already removed by Mr MacPhail from his property which we are also satisfied will have contributed. There is a hakea on the Wares’ property which we are also satisfied will have contributed to the damage. There are a number of remaining small cypresses were replacement plants by Mr and Mrs MacPhail some ten years ago which we also consider are likely to have made some modest contribution to the damage. Finally there is the Liquidambar which we are satisfied has made a significant contribution to the lifting at the south-eastern end of the slab closest to Fowler Road.

31 The only tree application which is made by Mr and Mrs MacPhail concerns the Liquidambar. No application has been made concerning the cypresses on the Wares’ property nor the hakea on the Wares’ property and thus we do not have any power to make any orders with respect to them. We do not express any opinion as to what order, if any, might be made about them as we have no jurisdiction to do so.

32 However, we are however satisfied that, unless the Liquidambar is removed, it will continue to damage the driveway and would damage any new driveway laid in its vicinity. We have, therefore, come to the conclusion that the Liquidambar should be removed.

33 We earlier noted that the Liquidambar appears to be some 60% on the Wares property and some 40% on the MacPhails’ property (as a rough estimate of the location).

34 There was no notice to the Wares of this slab damage which is obviously been continuing for a significant number of years and they have had no opportunity to abate it. We are satisfied consistent with the earlier passages cited Robson that the tree ought to be removed but that there is no basis for ordering compensation. Removal ought be a shared responsibility.

35 We have concluded that, as access for the removal the tree will be necessary from the MacPhails’ property, that we should make the MacPhails responsible for its removal but with access to the Wares property for this.

36 Mr and Mrs Ware indicated that they would be overseas until the end of July. They should obviously have the opportunity to supervise that part of the work which will take place on their property - although access will be from the MacPhails’ property. We are satisfied that the cost of removal should be shared equally between the parties. We therefore propose to order the MacPhails to get two quotes for the removal of the Liquidambar - copies of which are to be served on the Wares. We proposed to order Mr and Mrs Ware to pay 50% of the lower of those two quotations to the MacPhails within 28 days of service on the Wares of a copy of a receipted invoice for the removal of the Liquidambar after it has been removed and we propose to order the Liquidambar be removed not earlier than 1 August 2008 and not later than 30 October 2008.

Commissioner of the Court Acting Commissioner of the Court