Proprietors Strata Plan 55820 v Proprietors Strata Plan 20738

[2017] NSWLEC 1699

Land and Environment Court

New South Wales

Medium Neutral Citation:	Proprietors Strata Plan 55820 v Proprietors Strata Plan 20738 [2017] NSWLEC 1699
Hearing dates:	19 October 2017
Date of orders:	27 October 2017
Decision date:	27 October 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [36]
Catchwords:	TREES [NEIGHBOURS] : Damage to property; potential injury; rectification; apportionment
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Black v Johnson (No 2) NSWLEC 513 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Texts Cited:	Nil
Category:	Principal judgment
Parties:	The Proprietors Strata Plan 55820 (Applicant) The Proprietors Strata Plan 20738 (Respondent)
Representation:	Applicant: Mr I Foulsham (Solicitor) Respondent: Ms L Walsh (Barrister) Solicitors Applicant: Bull, Son & Schmidt Respondent: JS Mueller & Co Lawyers
File Number(s):	222105 of 2017
Publication restriction:	No

JUDGMENT

1. COMMISSIONER:   The parties in these proceedings are the Proprietors of two adjoining Strata Plan residential flat buildings in Naremburn.

2. Growing along the respondent’s northern side boundary, and close to the common dividing fence, are several mature trees. The applicant contends that the roots of two of the trees, Camphor Laurels, have caused damage to the applicant’s driveway, pavement, courtyard brick wall, dividing fence, sewer and storm water drainage system. The applicant submits that the lifted driveway constitutes a trip hazard. The applicant is also concerned that the overhanging branches of three Corymbia maculata (Spotted Gums) [described in the application and claim form as “Ghost Gums”] may fall and cause either damage or injury.

3. The applicant has applies under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking removal of the two Camphor Laurels, pruning of the overhanging branches of the Spotted Gums, and rectification of the driveway, plumbing and boundary fence. All orders are sought at the respondent’s expense.

4. During the on-site hearing, the claim for rectification was amended to just the removal and replacement of part of the driveway.

Jurisdiction

5. 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.

6. 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…”. In Robson v Leischke [2008] NSWLEC 152 at paragraphs [176] to [189] Preston CJ discusses the requirement for a clear nexus between the tree, the subject of the application, and the damage to property. At [179] in Robson, His Honour notes that a tree that is the subject of the application does not need to be the sole cause of the damage in order to engage the court’s jurisdiction.

7. As the applicant is concerned in part about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. 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, the history of any failures, any other relevant evidence, and the circumstances of the site apparent at the time of the hearing.

Evidence

The trees

8. The trees, numbered from east to west are: T1, T2 – Camphor Laurel; T4-6 Spotted Gum.

9. Both parties engaged arborists to inspect the trees and prepare reports. Whilst admitted into evidence, the report from Dr Trevor Hawkeswood (Exhibit C) does not include an acknowledgement of the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005, or Curriculum Vitae which sheds light on his arboricultural training and expertise. The applicant’s solicitor subsequently filed a statement from Dr Hawkeswood in regards to his expert report and the Code of Conduct. Whilst it is not made in the usual way I note his acknowledgment of his responsibilities as an expert however it does not provide any enlightenment as to his arboricultural qualifications. The report of the respondent’s arborist, Ms Catriona Mackenzie (Exhibit 3) complies with the Code of Practice. Ms Mackenzie was not required for cross examination and did not attend the hearing; the respondent relies on her report. Dr Hawkeswood attended the hearing at the applicant’s request.

10. Trees 1 and 2 are both mature specimens of Cinnamomum camphora (Camphor Laurel). The trees are substantially located on the respondent’s property but, at their base, extend onto the applicant’s property. The base of T2 projects furthest into the applicant’s property. The dividing fence has been constructed to accommodate the growth of the trunk/roots of the trees.

11. In his undated report and based on an inspection undertaken on 11 August 2017, Dr Hawkeswood states:

In summary, these trees are a costly nuisance by their roots and a serious danger to life and property as a result of dead and dying branches and weak branching pattern of limbs. It appears that fungus (at least wet rot) and several beetle boring species are affecting the branches. The recent leaf death displayed by Tree 2 may be a result of water stress, borer damage or both.

12. During the hearing, Dr Hawkeswood indicated what he said was borer and termite damage. He opined that the major problem was with the roots and that if the trees were removed there wouldn’t be a problem with the canopy.

13. Ms Mackenzie inspected the trees in early October 2017 and reviewed other material included with the application claim form as well as a black and white copy of the Hawkeswood report. In her report dated 10 October 2017, Ms Mackenzie considers T1 to be of low vigour and fair condition and notes apparent storm damage in the upper part of the canopy and some dead wood. T2 is noted as having good vigour with a low to moderate volume of small to medium diameter dead wood, which Ms Mackenzie opines is not atypical for a tree of its age, and growing conditions. She notes past evidence of pruning, good branch architecture and no obvious signs of borer damage or ‘wet rot’ as described in the Hawkeswood report. In regards to an unclear photograph of a dead branch in the Hawkeswood report she states that the branch appears to have been dead for some time and she would not be surprised to observe a decaying tree part colonised by boring and other inspects which would assist in decomposition. Ms Mackenzie found no compelling evidence to support Dr Hawkeswood’s claim that the trees are dangerous. In her opinion, the trees could be managed by routine arboricultural assessment and works as required.

14. Ms Mackenzie is also of the view that the roots of the Camphor laurels have displaced the driveway strips on the applicant’s property. In her opinion, if the damaged section of driveway is removed, it could be replaced with a structure that adopts a tree-sensitive design that allows for tree retention but this would have to be confirmed and designed by a structural engineer.

15. In regards to the Spotted Gums, Dr Hawkeswood states that the three trees overhang the applicant’s building and require immediate extensive pruning as all have dead branches which could cause damage to property and be a threat to human safety. During the hearing, Dr Hawkeswood stated that Eucalypts were well known for branch failure, but apart from pointing out a few dead branches, was unable to show any evidence of past limb failure that would support his recommendation for ‘immediate extensive pruning’.

16. Ms Mackenzie states at [36] of her report that she did not observe any defects in any of the Spotted Gums that indicated imminent failure or that warranted the extent of pruning suggested by Dr Hawkeswood; however she refers to the consent to the respondent from Willoughby Council (Appendix D in Exhibit 3) for pruning up to 33% over a five year period in accordance with council’s controls.

17. For all trees, Ms Mackenzie recommends removal of dead wood of 30mm diameter or greater at its base from all parts of the trees which overhang the driveway.

Plumbing

18. The applicant contends that roots from the Camphor Laurels have caused, and will continue to cause, damage to stormwater and sewer pipes located on common property. According to the application claim form and confirmed during the hearing, the applicant, for a number of years, has engaged the services of Bear Plumbing to attend to drainage and sewer issues including the routine high-pressure jetting of sewer and drainage pipes. In order to facilitate this on-going maintenance, a number of additional inspection points have been installed.

19. A 150mm PVC stormwater main runs from a pit at the eastern end of the driveway to the street. Connected to this main is a pipe which collects stormwater from units 1 and 2. There is also a pit in each of the courtyards which collects run-off and through which the connecting stormwater pipes run.

20. According to the applicant’s plumber, Mr Brett Matthews, who attended the on-site hearing, the storm water main is not blocked by roots but is upwardly displaced/ deflected to the extent that it is not fully functional as it restricts the volume of water flowing to the street and creates backflow into the pit. As I understand it, a section of pipe and or part of the pit in the unit closest to the main has collapsed; this leads to flooding of the courtyards of units 1 and 2 in periods of heavy rain. Mr Matthews stated that this collapse had been caused by tree roots but was unable to provide any evidence such as CCTV images or roots to prove this.

21. In regards to the sewer, I was informed that the frequency of clearing has increased from annually to every six months. According to Mr Matthews, he has observed and removed roots from the sewer to Unit 1. During the hearing he stated that part of the sewer is PVC and older sections are clay pipes; he stated that he has observed root penetration at each of the joins of the clay pipes. While no CCTV images were in evidence, a sample of woody and fibrous roots, reportedly recently removed from the sewer of Unit 2, were provided. These roots had the distinctive smell of camphor.

22. I was informed by one of the residents in the applicant’s building that the intent was to reline the sewer pipes however they were reluctant to do this if the trees remained.

23. The respondent engaged Mr Ross Brown, hydraulic engineer and licensed plumber, drainer and gas fitter to inspect the site and prepare a report as to whether the applicant’s sewer and stormwater systems are affected by roots from the Camphor Laurels. Mr Brown was not required to attend the hearing and the respondent relies on his report (Exhibit 2). His report included a link to CCTV footage of his inspection of the PVC sewer and stormwater mains located beneath the applicant’s driveway.

24. Mr Brown states that the CCTV inspection of both PVC mains did not demonstrate any open joints, cracking of the pipework walls, or any other internal openings. He saw no evidence in either pipe of any impingement of the wall of the pipe by an external means such as a tree root. Mr Brown states that the bore of the 150 mm of both pipes appeared free, smooth and in alignment for the length of the driveway. While he saw some silt in the sewer pipe and leaf and other debris in the stormwater pipe, there was no sign of any roots. Mr Brown concludes that the condition of the pipes is satisfactory for continuing use subject to ordinary ongoing inspection and maintenance common to sewer and drainage problems. He recommends pressure cleaning of the pipes to remove the debris. Mr Brown was unable to access the courtyards to inspect the secondary stormwater pits.

The driveway

25. The applicant engaged Paterson Wholohan Grill Pty Limited (PWG) to inspect the property and prepare a report. The PWG report in Exhibit B notes the ‘extensive damage’ to the driveway caused by the roots of the Camphor Laurels. PWG recommends removal of the trees and rectification of the driveway. The author of the PWG report also opines as to the supposed characteristics of the trees, however these opinions would appear to be beyond his expertise.

26. Both the respondent’s arborist, Ms Catriona Mackenzie, and engineer, Mr Deniz Bekir, acknowledge that the roots of the trees have caused damage to a 10m section of the applicant’s driveway. Mr Bekir considers that other contributory factors include: installation of the 70mm concrete driveway over pre-existing roots; general reactivity of the foundation/soil material; and wear and tear from traffic. He recommends removal and reinstatement to an engineer’s specification of the two individual strips 0.6m wide x 10m length. Mr Bekir provides an itemised estimate of $8,500 for the rectification work; however it is not clear as to what he proposes to do about the tree roots.

27. As stated above, Ms Mackenzie considers that it should be possible to retain the trees and elevate or ramp the driveway over the roots, subject to confirmation by a structural engineer and subsequent design. She notes that sometimes root barriers can be installed but given the proximity of the trees to the driveway this would adversely impact on tree stability and health and is not recommended.

28. Ms Walsh, Counsel for the respondent, relies on Mr Bekir’s report and submits that the cost of any rectification work should be at the applicant’s expense because the damage “was pre-determined to always occur and worsen over a period of time” ([7.17] Exhibit 4). She maintains that in these circumstances, the respondent should not be expected to make improvements to the applicant’s property in circumstances where the damage could have been avoided. Ms Walsh cites Black v Johnson (No 2) NSWLEC 513 in that the presence of tree roots would have been obvious at the time of construction, but nonetheless a driveway incapable of accommodating the roots was constructed.

Other elements of the claim

29. The PWG report notes minor damage to pavement and a courtyard brick wall which they attribute to the roots of the trees. The report also includes photographs of cracking in the walls of the older sections of the applicant’s building but these are not included in the claim. The application claim form also refers to sections of fencing removed to accommodate the growth of the stems.

Findings

30. I am satisfied to the extent required by s 10(2) that the roots of the Camphor Laurels have caused damage to a section of the applicant’s driveway and may have caused damage to the sewer/ storm water pipes of Units 1 and 2. The roots of the trees in the vicinity of the lifted driveway are clearly visible and the roots that had been allegedly removed from one of the units were certainly Camphor Laurel roots. With the benefit of viewing the CCTV footage taken by Mr Brown, I saw no evidence of any interaction, either blockage or deflection that may be attributed to the roots of the Camphor Laurels and not could I see the entry points into those mains from Units 1 and 2. I saw no evidence of fence damage but rather a deliberate attempt to incorporate the trees into the fence. I am not satisfied to the extent required by s 10(2) that the roots of the Camphor Laurels, have caused, are causing, or could in the near future cause, damage to the sewer and stormwater mains beneath the driveway. Similarly, I am not satisfied of any damage to the fence, or of any nexus between the trees and the courtyard wall.

31. In regards to the Spotted Gums, the trees are healthy with sound branch attachments. As is usual, there is some dead wood in each of the trees; it is of a size that when it falls, it could cause damage to property on the applicant’s land or potentially cause injury and thus s 10(2) is satisfied for these trees. I saw no evidence that would suggest anything other than the removal of dead wood is warranted however, I note the consent from Willoughby Council for more substantial pruning should the respondent wish to carry that out. The orders of the Court will be limited to the removal of the dead branches.

32. As s 10(2) is met for all trees, the Court’s powers to consider what, if any, orders should be made are engaged. This requires consideration of relevant discretionary matters under s 12 of the Trees Act (sub-sections in brackets). The following points deal principally with the Camphor Laurels.

• All trees are located close to the common boundary. The Spotted Gums are likely to have been planted after the construction of the respondent’s residential flat building. The Camphor Laurels are much older and would pre-date that development and may be an accident of an earlier sub-division; however, they are substantially on the respondent’s land (s 12F(a));

• Consent for removal or pruning of the trees would ordinarily be required from Willoughby Council (s 12b)) – see s 12(h) below;

• Pruning has been considered by the parties’ experts. Removal of dead wood will have no impact on tree heath or structure. As noted above in [26] root pruning to install a root barrier in order to prevent further encroachment is not recommended given its likely impacts on tree health and stability (s 12(b2));

• The trees contribute to privacy, landscaping, shading, screening and amenity for/of both properties; there is no stated historical, cultural or social value; all trees are likely to contribute to local biodiversity; the Camphor Laurels, being set back further from the tree frontage contribute less than the Spotted Gums to public amenity (s 12(b3)(c)(d)(e)(f));

• Section 12 (h) considers factors other than the trees that may have contributed to the damage and the actions of the parties. At [25] above, Mr Bekir notes other possible contributing factors. In 2016 the respondents applied to Willoughby Council for consent to remove four trees from their property, the two Camphor laurels, a Casuarina and a Spotted Gum (overhanging the roof of the applicant’s building). The Notice of Determination dated 6 October 2016 refuses consent to remove the trees. Consent was given for the pruning of up to 33% of the Spotted Gum over a five year period. The reasons given by the council for refusing consent to remove the Camphor Laurels includes: at the time of inspection the trees were in moderate to good health and as mature trees, further growth is likely to be minimal; unsatisfactory evidence of root origin within the sewer, location of blockage; age of sewer pipes; minor damage to adjacent driveway – elevation possible; and moderately reactive clay soils.

33. Having considered the evidence and the discretionary matters, I find that while the damage to the driveway is currently relatively minor, the trees, whilst mature, will continue to grow both above and below ground. While it may be possible to engineer a ramped or piered section of driveway over the roots (and which does not exacerbate drainage issues), given the proximity of the base of the trees to the driveway, the relatively limited width of the driveway and proximity of adjacent structures, and the size to which the Camphor Laurels can eventually grow, it would seem to me that this would be a relatively temporary solution. Orders will be made for the removal of the trees at the respondent’s expense. I accept that the trees provide amenity to the respondent’s property in particular however, the removal of the trees will not preclude the planting of replacement species which may be more suitable to the relatively confined and available space on the respondent’s property.

33. In regards to the Tree Dispute Principle in Black v Johnson, while the trees were certainly present and well-established before the section of driveway in contention was installed, it is not possible to know whether they were self-sown or planted, or indeed their location in respect of any earlier boundaries. Given the layout of the applicant’s land and the location of older structures (such as the building closest to the street), it would seem that there were no alternative locations for the construction of the driveway. However, for the reasons given by Mr Bekir, I consider some apportionment of rectification costs to be appropriate.

34. The parties were given an opportunity to consider what, if any apportionment of costs should be made, they agreed to leave that decision to me. On the basis of Mr Bekir’s report, I consider that the applicant should contribute 35% of the cost of rectification of the affected section of the driveway.

Conclusions and orders

36. On the basis of the evidence before me, and with the benefit of the site inspection and hearing from the parties, the Orders of the Court are:

1. Within 30 days of the date of these orders, the respondent is to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3 to remove the two Camphor Laurels at the rear of the respondent’s property to ground level and to grind the stumps. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity tree Industry or equivalent safety standard.

2. Prior to the works in order (1), and in order to facilitate those works, the respondent is to engage and pay for a fencing contractor to remove any sections of dividing fence adjoining both trees. Following the completion of the works in (1), the respondent is to engage and pay for a fencing contractor to replace the panels and make good the fence.

3. Within 30 days of the date of these orders, the respondent is to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3 to remove all dead wood 30mm or more at its base from all parts of the three Spotted Gums which overhang the applicant’s property to a distance of two metres inside the respondent’s property. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity tree Industry or equivalent safety standard and AS4373: 2007 Pruning of Amenity Trees.

4. The applicant is to provide all reasonable access on reasonable notice for the purpose of quoting and or the safe and efficient carrying out of the works in (1) and (3). This could include but is not limited to the use of machinery from the applicant’s property.

5. Within 30 days of the date of these orders, each party is to obtain up to two quotes each for the removal and replacement of the two concrete wheel strips with a total area of 6m2 to the standards recommended by Mr Bekir in Appendix 6 of Exhibit 4. The quote is to include the removal of any remaining roots. Any additional works requested by the applicant are to be separately itemised and paid for by the applicant.

6. Within 35 days of the date of these orders, the parties are to have exchanged quotes and agree on the choice of contractor. If no agreement can be reached the cheapest quote is to be selected.

7. The applicant is to engage and pay for the nominated contractor to carry out the works in (5).

8. The work in (5) is to be completed within 90 days of the date of these orders otherwise Order (9) lapses.

9. Within 21 days of the receipt of a tax invoice for the completed works in (5), the respondent is to reimburse the applicant 65% of the agreed quote.

______________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 07 December 2017