Nolan v Chen
[2015] NSWLEC 1441
•29 October 2015
Land and Environment Court
New South Wales
Medium Neutral Citation: Nolan v Chen [2015] NSWLEC 1441 Hearing dates: 29 October 2015 Date of orders: 29 October 2015 Decision date: 29 October 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 17.
Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); driveway damage caused by tree roots; orders for tree removal; damage mainly predates respondent’s ownership; compensation not ordered. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Philip Nolan (Applicant)
Taylor Chen (Respondent)Representation: Philip Nolan, litigant in person (Applicant)
Taylor Chen, litigant in person (Respondent)
File Number(s): 20685 of 2015
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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In leafy Normanhurst tall Blue Gums dominate the local residential landscape around Mr Nolan’s property, where he has lived for the last 37 years. Between his brick dwelling, built in the 1960s, and his northern boundary a concrete driveway provides vehicular access to the garage at the back of his property. Mr Nolan (‘the applicant’) is sure that the driveway was constructed prior to 1970. On the other side of his northern boundary, on Mr Chen’s property, stands a Sydney Blue Gum (Eucalyptus saligna) more than 20 metres tall, its base against the boundary fence.
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Mr Chen (‘the respondent’) has owned his property for less than a year, since December 2014. Next to the tree, Mr Nolan’s driveway is significantly raised and cracked. The crack runs across the driveway to his dwelling, meeting with the brick wall that encloses a downstairs rumpus room or office. The room’s floor level is lower than the exterior ground level at this point. In April of this year during torrential rains, water entered the rumpus room apparently through the wall at approximately the point where the driveway crack meets it. Water spread around the room causing damage to some items.
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Pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) Mr Nolan has applied to the Land and Environment Court seeking orders for removal of the tree and for compensation for some of the cost of repair works to the driveway. He says he understands that some damage occurred prior to Mr Chen’s ownership of his property, but contends that 25% of the quoted $7,400 would be a reasonable contribution from Mr Chen. Mr Nolan also seeks orders for costs of making his application, which Commissioners of the Court do not have the power to award. He may file a Notice of Motion for this element to be heard by the Registrar or a Judge of the Court if he wishes.
Past applications to Council
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Mr Nolan has had concerns about the tree and damage it has caused for several years, and had discussed it on various occasions with Mr Gubbins, the previous owner of Mr Chen’s property. Apart from his concerns about root damage, Mr Nolan says several branches have fallen from the tree, damaging his roof and once demolishing a section of the boundary fence. He says that, with his encouragement, Mr Gubbins applied to Hornsby Shire Council (‘Council’) in 2007 and 2012 for permission to remove the tree, but only permission for pruning was granted.
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Council’s Tree Management Officer, Mr Warick Booth, attended the hearing and made submissions. He provided copies of Council’s determinations of applications regarding the tree, which clarified that: Mr Gubbins had applied in 2007 to prune the tree, for which permission was granted; Mr Gubbins applied in 2010 to remove the tree but permission was refused; and Mr Gubbins’ 2012 application to prune the tree was granted. Reasons for Council’s refusal of the 2010 application for tree removal included the minor extent of damage, the tree’s proximity to a critically endangered ecological community (Blue Gum High Forest) and the its location within a Biodiversity Map Layer. On Mr Nolan’s telling, he and his previous neighbour both wanted the tree out. For a short while prior to the sale of the property Mr Gubbins could have removed the tree without council permission due to the bushfire zone ‘10/50’ legislation applying to the area. The tree was not removed. The 10/50 rule no longer applies to this area.
The applicant’s position
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Mr Nolan says it is clear that the tree has caused damage to the driveway, which has resulted in water entering his dwelling and causing further damage. He says the tree has not yet reached its full size and damage will only continue with further growth. He says that due to the proximity of the tree to the driveway, roots cannot be cut without affecting the tree. He sees no reasonable alternative method for repairing the driveway without removing the tree. Mr Nolan’s insurer commissioned an engineer’s report that identified tree roots as a likely cause of damage to the driveway. Mr Warwick Graham, structural engineer with Mountford Prider and Associates, also stated that the tree is likely to grow further and cause damage and that the tree is inappropriately close to the dwelling.
The respondent’s position
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Mr Chen says the tree provides benefits to his property including shade and visual screening and that it is part of the local ecosystem. He would prefer not to remove the tree. He says Council’s previous determinations regarding the tree indicate its high value.
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Mr Chen submits that damage to the driveway appears to have occurred, in the main, prior to his ownership of the tree. He suggests it would therefore be unfair for any costs to fall to him. He suggests Mr Nolan should have taken action against Mr Gubbins.
Consideration of Council’s Tree Preservation Order
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Mr Booth explained at the onsite hearing the matters that Council would consider in determining an application for removing a tree such as this: the ecological and landscape value of the tree and its surrounding environment; the health and structural condition of the tree; the extent of any damage caused by the tree; the tree’s proximity to a dwelling; alternative options to removing the tree; and offset planting requirements should a tree be removed. Mr Booth stated that if there is doubt as to the cause of damage, the applicant might be required to carry out further investigations and submit reports from an expert such as an arborist, engineer or plumber. He said alternative construction methods such as pier-and-beam footings might allow retention of a tree.
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Mr Booth agreed that the tree has not yet reached its full size. He stated that if large roots were found beneath the driveway here Council may allow removal of the tree with a requirement for offset planting in the order of five new trees, depending on available space.
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Mr Nolan submits that alternative methods for repairing the driveway would be expensive and unreasonable. He says the 8-metre section of concrete that is damaged needs to be removed, roots grubbed out and new concrete poured.
Findings
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I bring my own arboricultural expertise and experience to this matter. Considering the extent of the crack in the driveway, the pattern of raising and cracking and its proximity to the base of the tree, I am satisfied on the balance of probabilities that growth of the tree’s large woody roots beneath the driveway has largely caused its current condition. I accept that the tree is still growing and the extent of damage is likely to increase. I accept that the damage is now severe enough that repair works are required in the near future. Given the existing levels of the driveway and surrounds, and its proximity to the tree, I cannot see any reasonable alternative construction methods that would allow for the tree’s retention. Therefore, to prevent further damage and to allow repair of the driveway I will order removal of the tree. This is not done without careful consideration of the tree’s value, to both Mr Chen and the broader community, and the benefits it provides. It is a locally indigenous species, part of a diminishing ecological community, providing canopy cover, cooling, habitat and other benefits. Some replanting will be ordered to compensate at least partially for the loss of these benefits, using species listed as indigenous within Hornsby Shire.
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Access through the applicant’s property should significantly minimise the cost of tree removal works. Mr Nolan expressed his willingness for contractors to use his driveway for machinery access during the works.
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Weathering of the crack in the driveway indicates damage has been present for some time. Mr Nolan suggests it has got noticeably worse in the last nine months, perhaps from the tree moving in winds. There is no photographic or other evidence adduced to show this, and based on observations made on the day and Mr Nolan’s long history of concern regarding the damage, I cannot be satisfied that any significant damage has occurred since Mr Chen has owned his property. Therefore I will not be ordering that Mr Chen pays for any of the costs of repairing the driveway.
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Water damage to Mr Nolan’s dwelling has occurred since Mr Chen bought his property, but if it resulted from the condition of the driveway it too is a result of damage that occurred prior to Mr Chen’s ownership and was outside of his control. In his report Mr Graham, the engineer, also suggested that the condition of stormwater pipes and connections may be a contributing factor to the flooding event.
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Mr Nolan will be responsible for all works on his own property including the removal of any roots beneath his driveway.
Orders
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Based on the above the Court orders that:
The application is upheld.
Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the Sydney Blue Gum adjacent to the common boundary, to no more than 60 cm above ground level, and to immediately poison the stump.
The works in (2) are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
Given reasonable notice the applicant is to allow any access to his property required for the works to be done during reasonable hours of the day, including access for a truck and chipper.
Within 90 days of the date of these orders the respondent is to plant any five trees selected from the following list, each at least one metre from any boundary.
Allocasuarina littoralis
Allocasuarina torulosa
Angophora costata
Angophora floribunda
Backhousia myrtifolia
Banksia integrifolia
Banksia serrata
Ceratopetalum apetalum
Ceratopetalum gummiferum
Corymbia eximia
Elaeocarpus reticulatus
Syzygium paniculatum
Tristaniopsis laurina
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D Galwey
Acting Commissioner of the Court
20685 of 2015 Galwey (O) (13.0 KB, pdf)
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Decision last updated: 30 October 2015
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