O'Brien v NSW Land and Housing Corporation

[2018] NSWLEC 1358

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	O’Brien v NSW Land and Housing Corporation [2018] NSWLEC 1358
Hearing dates:	31 May 2018
Date of orders:	12 June 2018
Decision date:	12 June 2018
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	(1) The Application is dismissed.
Catchwords:	TREES [NEIGHBOURS]: damage to property; potential injury; compensation for cost of reports; extent of damage
Legislation Cited:	Land and Environment Court Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Act 2005
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152 Smith & Hannanford v Zhang & Zhou [2011] NSWLEC 29 Stevens v Russell & Anor [2016] NSWLEC 1233 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Catherine Alice O’Brien (Applicant) NSW Land and Housing Corporation (Respondent)
Representation:	Solicitors: Litigant in Person (Applicant) R Wilcher, Hicksons Lawyers (Respondent)
File Number(s):	2018/74284
Publication restriction:	Nil

Judgment

1. ACTING COMMISSIONER: The owner of a property in Newtown has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of three mature Ironbarks (Eucalyptus paniculata) and one Swamp Mahogany (Eucalyptus robusta).

2. The applicant, Ms O’Brien, claims that the respondents’ trees are causing damage to her property and while not seeking compensation for damage, she is seeking payment for the cost of reports, by an Arborist and a Structural Engineer, supplied to support her position.

3. I will deal with this matter first as it is most easily disposed of. Commissioners of the Court are not given delegation by the Chief Judge, pursuant to s 36 of the Land and Environment Court Act 1979, to deal with applications for costs or for the provision of reports and the like falling within the definition of costs. If Ms O’Brien wishes to make a separate application to the Court based on the outcome of these proceedings for any costs order, it must be by Notice of Motion which is heard and determined by a Judge of the Court.

4. Ms O’Brien also claims that the trees “are a risk of injury to persons and property”, should branches fall on her house or rear yard. She has provided a photograph of a branch that fell in March 2017.

5. The respondent, the NSW Land and Housing Corporation, are represented on site by Mr Robert Wilcher of Hickson’s Solicitors and by a Corporation officer. They support the removal of the trees. In Proposed Consent Orders filed in Court on 17 April 2018, they submitted that they would pay for the tree removals, but that the parties pay their own costs in relation to the application. These orders were not made.

6. The trees are growing along and within about 300mm of the respondents’ north north-western boundary, thus satisfying the jurisdictional test in s 4(3) of the Trees Act that the trees in question must be situated wholly or principally on [adjoining] land. The applicant’s property is to the west south-west of the respondents’ property.

7. The Ironbark trees have heights between 13 and 18 metres and the Swamp Mahogany is about 8 metres tall. They have been labelled as trees 1-4 in the Arborists report with tree 1, being the smallest of the three Ironbarks, located closest to the rear of Ms O’Brien’s dwelling. The Swamp Mahogany is tree 2. It is positioned about 3 metres to the north-north-west and is suppressed under the second Ironbark (tree 3), with tree 4 closest to the rear of the back yard. The trees’ canopy spread is variable and they have been pruned quite heavily away from the applicant’s property. They appear to be in good health and vitality, notwithstanding this heavy pruning.

8. Near the rear of the house, the ground level where the trees were planted is about one metre higher than Ms O’Brien’s property. Beyond the house, the yard raises up via a series of steps until it is only about 300 mm below the ground level of the trees at the rear, or north north-west. A series of small retaining walls along the boundary, below the fence accommodate these level changes.

9. In response to Ms O’Brien’s previous requests for removal, the NSW Land and Housing Corporation has submitted two applications to Marrickville (now Inner West) Council (Council) seeking permission to remove the four trees. On both occasions, Council had refused permission for removal but pruning has been approved and undertaken.

10. In January and February 2018 Ms O’Brien engaged the services of an arborist, Mr David Gowenlock, and an engineer, Mr John Byatt, to inspect her property and provide reports. The reports are included in the Application and claim form [Exhibit A]. Neither report meets the Court’s requirement for expert evidence per the Expert Witness Code of Conduct in Schedule 7, Uniform Civil Procedure Rules 2005, Uniform Civil Procedure Act, 2005, but were submitted by Ms O’Brien as supporting evidence. Both consultants list their qualifications. Mr Gowenlock attended the hearing as an observer.

Arboricultural evidence

11. Ms O’Brien refers to Mr Gowenlock’s report many times in her application.

12. He noted on page 1 that the Brief included “no root mapping or other invasive tests” and that the Scope was to meet the following objectives:

1. Conduct a comprehensive visual inspection of the site and its environment;

2. Determine the condition and structure of the trees on the site; and

3. Provide management outcomes for tree removal.

13. The report provided an assessment of Vigour, Structural Condition, Safe Useful Life Expectancy (SULE) and Landscape Significance Rating. Appendixes C and D detailed the methodology involved in the respective calculation of SULE and Landscape Significance.

14. Mr Gowenlock concluded that all trees displayed Fair Vigour, except tree 1 which was rated as Fair-Good; all were rated as having Poor Structural Condition except tree 1 which was considered Fair–Poor and all had Short SULE, which is defined as 5-15 years.

15. Landscape Significance for all trees was rated as Moderate. With respect to trees 1-3, Mr Gowenlock stated that “Retaining walls are being damaged and pushed over by the roots.” On page 3, he noted that “both of the Eucalyptus species present in this report are locally endemic native species, and protected under the Inner West Council Development Control Plan (DCP) 2011.”

Engineering evidence

16. On 18 February 2018, Mr John Byatt, a Chartered Professional Engineer representing JA Byatt Pty Ltd, attended Ms O’Brien’s property to assess the cause of cracking of walls of her two storey terrace house and to make recommendations for rectification. His report makes no mention of any excavation being undertaken, nor any results that suggest other than a surface based visual inspection.

17. Amongst possible causes of the cracking to the residence, Mr Byatt refers to trees, to the age of the dwelling, nature of the footings, and the inadequate foundation material that does not meet Australian Standard AS2870-2011, reactive soils, and the impact of additions or alterations. He aged the building at “late 19th or early 20th century.”

18. He notes at Finding 2 pp3 that “according to AS2870 a masonry building requires a substantially reinforced concrete footing in order to bridge over foundation distortions and an undulating foundation profile resulting from reactive clay movements in order to prevent cracks developing in the walls. Based on the approximate date of construction, the footing founding the subject residence would comprise either a masonry or sandstone widened foundation wall which has no inherent stiffness to reduce foundation movement.” Mr Byatt then notes that “an older building without the benefit of a stiff concrete footing is highly susceptible to cracking which often occurs at the ends and at mid length of a wall and adjacent to window and door penetrations.”

19. Based on “local knowledge of the area”, he postulates the presence of Class M, moderately reactive clays, and that trees “located close to a building founded on reactive soil leads to an increased local loss of water which amplifies the potential for soil movements” (Finding 3, pp3).

20. At Finding 4, pp3, Mr Byatt cites AS2870 – 1996 Residential slabs and footings – Construction Appendix B2.3(c) noting that “the planting of trees near to the foundation of a wall should be avoided on reactive sites. For class M soils, a planting distances away from footings of at least ¾ the mature height of the tree is recommended. He states that no trees, therefore, should be within 6 metres and that the trees will continue to cause damage if they remain.

21. At Finding 9, pp4, Mr Byatt is very specific about the impact on wall cracking of an underpinning beam installed in the kitchen during “past alterations on the residence.” He notes that:

…at the support location, a door opening exists in both walls resulting in only a small section of brickwork located between the door openings providing support of the beam. It appears that the corresponding footing base is too small to support the beam loading and settlement in the foundation has occurred. When viewed externally it appears that doorway in the single storey wall has settled approximately 25mm at one side of the opening at the junction with the rear 2 storey wall. It would therefore appear that the beam supporting the first floor brickwork has also settled by a similar amount which has led to an angular displacement in the supported brickwork causing the cracking identified at the top of the stairway and also cracking in the single storey kitchen external wall.

22. Mr Byatt also notes at Finding 10, pp4, “Given that the underpinning beam has only been in place for several years there is a possibility that further settlement will occur as consolidation of the foundation continues to occur”, and that cracks will continue to manifest.

23. At Finding 11(9), pp5 he also notes that “minor cracking was identified within the rear garden walls which is considered to be of no consequence and outward movement in the single brick boundary retaining wall was also observed.”

24. In the light of his observations, Mr Byatt strongly recommends removing the trees and, depending on the type of damage, repairing or rebuilding the damaged property once the trees are removed.

25. Mr Byatt’s final Finding, 13 on pp5, states that “Buildings constructed on reactive sites with inadequate footings will always be prone to cracking, indicating that a maintenance plan needs to be implemented.” It is not unreasonable to have a 10 year plan involving crack repair” and “to have a 5 year intermediate plan involving a more cosmetic treatment of cracks.”

Jurisdiction

26. As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated, given that both parties seek the same outcome.

27. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2) The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a) has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property; or

(b) is likely to cause injury to any person.

28. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act” The onus in these matters is on the applicant to provide sufficient probative evidence to support their claim. It is necessary for the applicant to prove the nexus between the tree and the alleged damage. However, in Robson v Leischke [2008] NSWLEC 152, Preston, CJ at [179] notes that the tree need not be the sole cause of damage to property on an applicant’s land in order to engage the Court’s jurisdiction.

29. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination.

30. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

31. If any element of s 10(2) is satisfied, the Court’s powers to make orders under s 9 of the Trees Act are engaged. This requires the consideration of relevant matters in s 12 of the Act.

Observations

32. The hearing commenced on site with the trees initially inspected from the respondents’ property. With the arboricultural expertise I bring to the Court, my view differed from Mr Gowenlock’s, and I note that the trees are in better condition than his report indicates.

33. All four trees had Fair-Good vigour, notwithstanding that the Swamp Mahogany is suppressed. They were also in Fair-Good structural condition, though with minor to moderate issues resulting from excessive and poor pruning practices.

34. While tree 3 and 4 had co-dominant stems, these junctions were sound and strong and not characterised by included bark. Their SULE is Medium, not Short, subject to improved pruning practices being implemented in the future. Based on Ms O’Brien’s comment that the trees were about one third of their current size when she moved here about 18 years ago, I estimate that they are currently 30-35 years old. They are potentially long-lived species, even in a built up urban area, and tolerant of harsh conditions.

35. Using the criteria for Landscape Significance Rating, provided in Appendix C on page 19 of Mr Gowenlock’s report, this group of trees would be considered High at the minimum, bordering on Very High. In terms of Ecological value, both species are representative of the original vegetation of the area and have known wildlife habitat value. As to Amenity value, they are good representatives of the species in terms of form and branching habit with minor deviations from normal, and a crown density of at least 70% of normal. Most significantly, they are visible from the street and surrounding properties and especially as a group, make a positive contribution to the visual character of the area.

36. We then inspected the back yard of Ms O’Brien’s property. According to her verbal statement, the trees have caused the following damage to her property:

• Damage to a short single brick retaining wall about 800mm high which is leaning about 20 degrees from vertical into her property. It has not detached at the base.

• Lifting of the pavers in the side passage that runs from a recessed exit door towards the back yard. Ms O’Brien indicated that the side passage was not used because of this paving damage and the leaning retaining wall.

• Minor cracking of the brick retaining wall in the middle of the back yard at a junction and on vertical surfaces.

• Lifting of the pavers at the rear of the back yard.

• A contribution to cracking of brick walls. My attention was drawn to a crack in an exterior north north-western facing wall at the rear of the second-storey section of the house, about 5 metres from the closest Gum tree. The ground floor containing the kitchen continues below, further towards the north north-west.

37. She also noted the large branch that had fallen into the rear of the yard in 2017, and an example of smaller sticks, perhaps 300 mm long and 12 mm diameter that fall regularly, especially during winds, with respect to her apprehension of “risk of injury to persons and property.”

38. Ms O’Brien also spoke of the sleep disturbance that she and her husband experience from fruit and other small debris dropping onto their corrugated iron roof from overhanging branches throughout the night.

Consideration

Damage

39. I cannot be satisfied on the evidence of Mr Byatt that the Gum trees have caused the cracking of house walls. Mr Byatt does not indicate in his report that his inspection was based on anything other than a visual inspection, and does not refer to any excavation. In his report, he initially focuses on the Broad leafed Paperbark and Jacaranda at the front of the property due to the majority of cracking being at the front of the house. This is well away from the Eucalyptus trees.

40. Mr Byatt estimated that the house dates from the late 1800s or early 1900s. Therefore the house is likely to be over 100 years old and have footings that may have moved over the years. Though he didn’t carry out any relevant sampling of the soil, it is possible that swelling and shrinking of the subsoil in the area may be a cause of the cracking. I also note that if the guidance in AS2870 – 1996 – Construction Appendix B2.3(c) in terms of proximity of trees to buildings were to be mandated, there would be few trees in any urban area.

41. Mr Byatt notes that trees should not be close to buildings in general, and that the trees should be removed, but provides no evidence specific to the four subject trees to justify these comments. At Finding 7 pp4, Mr Byatt, referring to shrinkage in the foundation, states that “the fact that the latter cracking has substantially widened within the last 12 months reinforces the notion that the adjacent tree has been largely responsible for the foundation damage.”

42. Why does it ‘reinforce the notion’? This ‘finding’ does not constitute evidence of a causal link between the cracking and the trees. Nor does it consider other factors, such as the impact of the record dry spell experienced in the last 12 months as a possible contribution to increased wall cracking across that period.

43. With respect to the shrinkage of reactive clays, in Stevens v Russell & anor [2016] NSWLEC 1233 at [37], Fakes C states “trees can extract water from soils, however, in the absence of any evidence to prove otherwise, the likelihood of the tree being ‘the’ cause, or even ‘a’ cause of the internal cracking remains a hypothetical possibility.”

44. Conversely, Mr Byatt does provide specific evidence with respect to the relationship between recent renovations and cracking of the exterior north north-western facing wall at the rear of the second-storey section of the house, to which Ms O’Brien brought my attention from the backyard (Finding 9, pp4).

45. In Stevens v Russell & anor [2016] NSWLEC 1233 [40], Fakes C 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.”

46. In Stevens at [41], in relation to a wall, Fakes C states, “While it is possible that roots may have contributed to the lean, it is not a proven fact and the opinions are unsubstantiated. No consideration was given to the age and construction, including the type and depth of footings, of the wall or to the fact that it is a free-standing unit not keyed into any other wall perpendicular to it.”

47. The scenario is similar to Ms O’Brien’s wall, which Mr Byatt referenced as a “single brick boundary retaining wall.” Crucially, some excavation was required to expose the root or roots and show if and how it or they are causing the wall damage. At no stage in this case were roots exposed to show that they were a cause of damage.

48. Much of the rear courtyard at the rear of the applicant’s property is paved. Mrs O’Brien highlighted some dislocated pavers and the inconvenience they pose along with minor cracking of the rear garden walls. No excavation was undertaken to expose roots so, once again, no clear causal link has been provided between the trees and the damage, notwithstanding that it is possible that roots may be involved. In any case the damage is minor and can be rectified relatively easily. As Mr Byatt noted in his report, this could be considered part of a normal maintenance program.

39. I am therefore also not satisfied from the observations made on site that roots from the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant’s property, and thus s 10(2)(a) is not satisfied.

Potential injury

50. Ms O’Brien also states that the trees’ proximity to her dwelling poses a risk to property and persons should branches fall. While branches do over-hang the applicant’s house, with the arboricultural expertise I bring to the Court I saw nothing that would lead me to conclude that the trees represent any obvious risk of branch failure. On page 13 of his report, Mr Gowenlock cites “high frequency user targets, with the possibility of injury or death due to limb or trunk failure”, but includes no systematic risk assessment method to provide context.

51. One major branch has fallen from the tree during the 18 years that Ms O’Brien has lived here. It caused no injury nor was there mention of damage. The issue of claimed damage to roof infrastructure from falling leaves is dealt with in Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, that the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This principle applies here. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide.

52. I am not satisfied from the observations made on site that the trees are likely to cause injury to any person, and thus s 10(2)(b) is not satisfied.

53. If I am wrong on this jurisdictional point with respect to damage to outdoor landscape features, consideration of relevant matters in s 12 of the Trees Act is required.

Discretionary matters – s 12

54. In my view the relevant matters are:

55. The trees are located close to the boundary. Although the trees are mature they will continue to grow, albeit more slowly as they age. Therefore some continuation of root expansion could be expected (s 12(a)).

56. With respect to s 12(b2), pruning of the trees has been relatively heavy. This has led to the development of a reduced branch structure with some epicormic response growth. Future specifications should require less pruning, including the branches overhanging Ms O’Brien’s property, and should meet AS4373-2007 Australian Pruning Standard.

57. The trees contribute to privacy and landscaping of a heavily trafficked area. They provide protection from the sun, and add significantly to the amenity of the immediate locality. They are relatively large prominent trees which are clearly visible from many neighbouring houses and apartments. As such, they have significant intrinsic value to public amenity (s 12(b3)(e)(f)).

58. It could be reasonably expected that these species, because of their flowering and fruiting characteristics, would provide food and or shelter for local fauna and thus would contribute to local biodiversity. Most significantly, they are visible from the street and surrounding properties and especially as a group, make a positive contribution to the visual character of the area (s 12(d)).

59. Normal wear and tear is expected to arise with any structure over time(s 12(i)) Mr Byatt noted that with houses built on inadequate footings, and with reactive clays, regardless of trees, 10 and 5 yearly crack management maintenance plans were appropriate. This also applies with the damage to landscape features in the rear yard, which is minor, and relatively easy and inexpensive to repair.

60. Consideration must also be given to the adequacy of design and construction of the small leaning retaining wall. The trees were well established when the wall was constructed, and thus a single skin masonry wall appears inadequate.

Conclusions

61. After considering the evidence, such as it is, the only elements of the application to be determined are whether the trees should be removed.

62. I am not satisfied that the removal of the trees is justified at this stage; concurring with the council’s assessment, the damage in the rear yard is relatively minor and easy to rectify. Therefore no orders will be made for the removal of the tree.

Orders

63. In conclusion, the Orders of the Court are:

1. The application to remove the trees is dismissed.

__________________________

John Douglas

Acting Commissioner of the Court

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Amendments

23 August 2018 - Corrections made to Date of Orders and Date of Decision - instead of "13 June 2018", it now reads "12 June 2018"

Decision last updated: 23 August 2018