Reeves v Marks

[2015] NSWLEC 1059

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Reeves & anor v Marks & anor [2015] NSWLEC 1059
Hearing dates:	19 March 2015
Date of orders:	19 March 2015
Decision date:	19 March 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld in part: see orders at paragraph 23.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; risk of injury; compensation; orders for tree pruning.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152
Category:	Principal judgment
Parties:	Janette Reeves and Peter Reeves, litigants in person (Applicants) Daniel Marks and Nicole Marks, litigants in person (Respondents)
File Number(s):	20023 of 2015

Judgment

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

Background

1. Janette and Peter Reeves ("the applicants") have lived at their Narellan Vale property for 25 years. Their outdoor open space at the back of their dwelling is taken up by a deck and an above-ground swimming pool, which they had installed about nine years ago. On the property to their east, within a metre of their common boundary, grow a large gum tree and a palm. The Reeves say the trees have damaged their property, and are likely to cause further damage and injury. They have applied to the Court pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (“the Trees Act”) seeking orders for removal of both trees and for compensation of approximately $15,000.

2. Nicole and Daniel Marks own and live at the neighbouring property on which the trees grow, although they have recently sold the property with settlement due to occur in a few weeks. They do not wish to remove the trees.

Damage

3. The damage that the Reeves say has been caused by the trees includes:

• falling limbs from the gum tree damaging the deck;

• other debris falling from the gum tree onto the deck and preventing drainage;

• debris from the gum tree blocking gutters and causing water damage to their dwelling (compensation not claimed);

• damage to decking and timber lattice atop the fence during pruning works;

• roots from the gum tree growing beneath their pool, making the bottom surface uneven and preventing proper cleaning; and

• palm roots blocking the sewer pipe causing sewage to overflow. This occurred prior to the Marks’ purchase of their property four years ago.

4. The Reeves also say their son was injured when a branch fell from the gum tree and cut his arm.

5. The Reeves say the damage described above is likely to continue and falling branches are likely to cause injury. They say they do not use the outdoor area due to its condition and for fear of injury. They say they cannot properly maintain their pool due to the amount of debris and the uneven surface. They say their roof gutters block no matter how often they clear them. Winds from the southeast and northeast blow leaves and other debris onto their roof. They are also concerned that in strong winds the tree may fall, as it is in a raised garden bed and roots may not have grown sufficiently to support the tree.

Efforts to resolve the situation

6. The Reeves informed the Marks of their concerns in late 2012. Although the Marks may have initially expressed some willingness to remove the gum tree, they subsequently decided they would like to keep it. They obtained a permit from Camden Council to prune the tree. Due to the cost of the works they took some time to have the works done. When the works were being carried out the contractor did not complete the works, saying Mr Reeves was aggressive and told them to stop the works. The Reeves say the contractors damaged their property by dropping limbs onto the decking and by standing on the timber lattice.

7. The Marks say they were never informed of root damage caused by their palm.

Marks’ submissions

8. The Marks say the trees do not create excessive debris on their property – they rake their garden once a fortnight and clean out their gutters monthly. They dispute that their contractors caused any damage to the Reeves’ property.

Findings

9. Along with information and submissions provided by the parties, I bring my own expertise as an arborist to the task of determining this matter.

Trees

10. The Lemon-scented Gum (Corymbia citriodora) appears to be a healthy typical example of the species with no major structural defects. It has some dead branches, not large, and not more than would be expected for this species. Also typical for this species is the growth of long slender branches, with a few now becoming slightly overextended. The root buttress appears sound and there is nothing to suggest that whole tree failure is likely. Some small branches can be expected to fall periodically from the tree.

11. The Chinese Windmill Palm (Trachycarpus fortunei) is healthy and a typical example of its species.

Decking

12. The applicants’ timber decking appears aged and weathered. Although the applicants say all damage to the decking was caused during the pruning works, I observed that there is cracking throughout and that boards are split at the western end of the deck, away from any possible impact caused by falling branches. Boards are lifting away from joists below where screws are no longer fixing the weathered timber. Some very localised areas of damage to boards may have been caused by branch impact, but these are few and small and those boards, or parts thereof, could be replaced at little cost. However the applicants say the entire deck is unusable and needs replacing. They have a quote from a carpenter of $10,990 for these works.

13. If I accept the applicants’ submissions that the entire decking may need replacing, I am not convinced that this is due to falling branches. Debris from the tree, when left on the decking, may have contributed to its weathering, but this issue is addressed further below.

Timber lattice

14. According to the Reeves’ own submissions, damage to the lattice resulted from tree contractors standing on it. This is not damage caused by the tree and I cannot make orders for its repair.

Pool

15. The pool, its pump and its filter have clearly not been used for some time. Pool water is discoloured. The bottom of the pool could not be observed. Accepting the Reeves’ submissions that the uneven surface of the pool bottom is caused by tree roots and prevents proper maintenance I make the following findings.

16. The tree was present nine years ago when the pool was installed and eight years ago when the deck was constructed. Root growth may have been present then, and more root growth was certainly foreseeable. The pool’s construction does not appear to have allowed for this.

17. If the bottom surface of the pool is now uneven, that is not necessarily “damage” according to the Trees Act. Difficulty cleaning the pool is also not necessarily “damage” according to the Trees Act. What constitutes damage to property is discussed further by Preston CJ in Robson v Leischke [2008] NSWLEC 152 at [162] to [173]. Even if I accept the uneven surface as damage I am not satisfied that the Marks were informed of any damage caused by roots (though they were informed of fallen branches), nor that the majority of damage occurred during the Marks’ years of ownership, nor that there was any reasonable action they could have taken. Addressing the matter of future damage, according to the applicants the pool liner now needs replacing. When that is done, a more suitable base or substrate may be installed that would prevent any future root growth causing damage. I am not convinced that tree removal is required to address that problem.

Sewer pipes and palm roots

18. No evidence was provided to demonstrate palm roots are in the sewer, apart from the Reeves saying that the Board of Works and a plumber found roots in the pipe when there was a blockage some years ago, before the Marks owned their property, and said that the roots were from the palm. Despite saying that they have noticed sewage overflow periodically in their garden, they have taken no other action other than including the palm in this tree dispute application. There is nothing to suggest that further damage has occurred in the time the Marks have owned their property. If cracks or gaps in the pipes many years go allowed root ingress, it is at least possible that those same gaps would allow leakage from the pipes. I cannot be satisfied that palm roots are causing damage or are likely in the near future to cause damage, and therefore this element of the application will be dismissed.

Jurisdiction to make orders

19. If I accept that debris from the tree has contributed to the condition of the decking, and that further branch failures may occur and cause damage or injury, then the jurisdictional test at s 10(2) of the Trees Act is satisfied and the Court can make orders.

Discretionary matters

20. The Court established a principle in Barker v Kyriakides [2007] NSWLEC 292 stating (in my terms) that for people living with trees in urban environments some reasonable level of outdoor maintenance is to be expected, including cleaning of gutters and the surrounds of their houses on a regular basis. In this situation there is nothing unusual regarding the size of the gum tree or the type of tree it is, and I see no reason to stray from that principle. This applies to leaves, buds, gumnuts and twigs that have fallen and will fall onto the Reeves’ cubby house, decking, swimming pool, roof and guttering.

21. Based on all of the above, no orders to carry out repair works or for compensation will be made.

22. I accept that falling limbs may cause injury, however the gum tree’s overall structure is good and risk of limb failure can be managed with normal pruning practices. The tree provides amenity, habitat and environmental benefits and is worthy of retention if possible. Orders will be made for pruning at regular intervals. Such orders will pass on to subsequent owners of the Marks’ property when the Reeves provide them with a copy of the orders, as explained at s 16(2) of the Trees Act.

Orders

23. As a consequence of the foregoing, the Court orders that:

1. The application is upheld in part.

2. By 9 April the respondents are to engage and pay for a suitably qualified arborist (minimum AQF Level 3), with all appropriate insurances and equipment, to carry out the following pruning works on the Lemon-scented Gum:

1. Removal of all deadwood 30mm diameter and greater from all parts of the tree;

2. Removal of remaining branch stubs from previous works, cutting them back to branch collars;

3. Crown reduction and removal of branches that may be diseased or dying from all parts of the tree that overhang the applicants’ property, removing no more than 20% of total live crown mass from the tree;

4. Reduction or removal of any other branches that the arborist identifies as hazardous while carrying out the works.

3. The works in (2) are to be done in accordance with the guidelines of AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

4. The contractor carrying out the works in (2) is to remove all debris created by the works from the applicants’ property. Branches and debris are to be taken to the truck or chipper through the respondents’ property.

5. Given reasonable notice, the applicants are to allow any access required for the pruning ordered in (2) during reasonable hours of the day.

6. Every two years, within two weeks of the anniversary of the date of these orders, the respondents are to engage and pay for a suitably qualified arborist (minimum AQF Level 3), with all appropriate insurances, to carry out the following pruning works on the Lemon-scented Gum:

1. Removal of all deadwood 30mm diameter and greater from all parts of the tree;

2. Crown reduction and removal of branches that may be diseased or dying from all parts of the tree that overhang the applicants’ property, removing no more than 20% of total live crown mass from the tree;

3. Reduction or removal of any other branches that the arborist identifies as hazardous while carrying out the works.

7. The works in (6) are to be done in accordance with the guidelines of AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

8. Given reasonable notice, the applicants are to allow any access required for the pruning ordered in (6) during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

20023of 2015 Galwey (O) (28.7 KB, docx)

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Amendments

23 March 2015 - Wording amendment

Decision last updated: 23 March 2015