Roodenrys v Moore

[2008] NSWLEC 1273

Land and Environment Court

of New South Wales

CITATION:

Roodenrys v Moore [2008] NSWLEC 1273

PARTIES:

APPLICANT
Paul and Catherine Roodenrys

RESPONDENT
Mervyn Moore

FILE NUMBER(S):

20263 of 2008

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Removal of trees, damage to property, risk of injury to persons.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

25/06/2008

EX TEMPORE JUDGMENT DATE:

26 June 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. and Mrs C.Roodenrys, litigants in person

RESPONDENT
Mr M. Moore, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

25 June 2008

20263 of 2008

Paul and Catherine Roodenrys v Mervyn Moore

JUDGMENT

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

1 ACTING COMMISSIONER: Mr Moore lives on a heavily vegetated block at 18 Valetta Street, Moss Vale. Among the trees on the property are four large trees situated along the western boundary. Nearest the street is a Pine, the other three trees to the north are Cypresses. He says that these trees have been a favourable feature and one of the reasons his parents purchased the property in 1966. The trees currently provide privacy and shade. Mr Moore’s house is at the eastern side of his property, well clear of the four trees but would be beneficially shaded by the trees on summer afternoons. He would prefer to keep the trees as they are, but thinks that if the neighbours are concerned they should prune their side of the boundary and also on his side to keep the trees balanced, at their cost. He claims that he has little income or savings and could not afford to pay for the trees to be removed. He has enquired of Wingecarribee Shire Council, receiving verbal advice that none of the four trees are protected by the Council Tree Preservation Order, and has various papers from the Council that seem to support that advice.

2 Mr Moore says that he had the trees inspected by the Council soon after the neighbours bought their property in 1996. The trees were similar to their present size at that time. His recollection is that the trees were described by the Council officer as ‘old but no reason for them to come out’. He did make inquiries recently but was not able to obtain an inspection by a private arborist, and the Council would not provide an inspection for the purpose of giving advice.

3 The neighbours, Mr and Mrs Roodenrys live on the adjoining property to the west, 16 Valetta Street, Moss Vale. Their home is close to the common boundary and the trunks of the trees. They have a photograph that they think was taken in the 1930s showing the four trees well established. The trees are now about five times the height of their single storey house, and branches overhang their house and yard by up to 10 m.

4 A branch broke off the Pine tree about seven years ago, in the last snowstorm. That branch fell onto the street and brought down the power lines. It did not damage the Roodenrys’ property and did not injure any person. Also, during a storm in 2006 a branch fell from the most northerly Cypress destroying the Roodenrys’ clothesline in their backyard. The Roodenrys also claim that roots of the trees have damaged their old terracotta sewer pipes, pine cones fall on their corrugated iron roof, and the trees shed large amounts of pine needles that block gutters and drains. The Roodenrys have provided an arboricultural report that recommends all four trees be removed as they are dangerous or hazardous. Mrs Roodenrys did not attend the hearing.

5 The Roodenrys seek removal of the four trees at the owner’s cost.

6 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree.

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 likely to cause injury to any person?

7 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

The tree report provided by Mr Roodenrys

8 Mr Roodenrys has provided an arboricultural report dated 14 February 2008 that recommends removal of all four trees. It is a short report with predominantly general comments about the trees. The report is dated prior to the Directions of the Court in this matter and does not include an acknowledgement of the obligations for an expert witness as contained in Direction 14 of the Standard Tree Directions either as part of the report or as a supporting statement. The report refers to ‘Visual Tree Inspection’ but does not explain the procedures used nor provide any comparison to the method of ‘Visual Tree Assessment’ (VTA) as developed by Mattheck and Breloer. Further, at the hearing I had to pull away ivy growing on the trunk of the Pine tree in order to better observe the structure and lower branch junctions of the tree. Many of the features of the Pine tree that I observed both low on the trunk and in the canopy are not described in the arboricultural report. A similar situation exists for the three Cypress trees. For these reasons I am not persuaded that the report provides adequate and impartial information on which I should base my determination regarding the trees.

The issues

9 The issues in this case are:

• Which, if any, of the trees meet any of the tests in s10 (2) of the Act, and if so, what if anything should be ordered ?

Tree No 1

10 Inspection at the on-site hearing showed it to be a mature but not overmature large Pine tree (probably Pinus radiata) in good condition with no visible decay or fungi fruiting bodies. The tree has five trunks arising from above ground level. The more easterly four trunks have open junctions without included bark, and have appropriately large girths for the lower sections of a tree of this size and age. The most eastern trunk soon branches into two with an open junction and no included bark. The western trunk branches near its origin at about 1.5 m above ground, with included bark for about 1 m. The lower of these branches is thickened, and I conclude that this is reaction wood providing additional strength to the branch. These western branches separate above the included bark but are in contact again at about 5 m above ground. The upper trunk at that location is considerably thickened with what I conclude to be reaction wood in response to rubbing of the branches. All the larger branches appear to have reasonable taper, normal for the age of the tree, without over-long internodes or distances to the start of foliage. Mr Roodenrys has pointed out one broken branch having a diameter of about 0.3 m about half way up the tree. This broke about seven years ago in the last snowstorm to hit the property. It appears to have broken a few smaller branches as it fell and he claims that it brought down the power lines in the street but did not damage his property or injure any person. There are a few small, dead branches in the canopy.

11 Mr Roodenrys claims that the old terracotta sewer pipe has been blocked by tree roots, possibly of this tree, though other trees are closer. The sewer pipes are very old and he is replacing them with PVC pipes as part of ongoing home renovation. As other equally large trees are closer to the sewer I do not find it likely that this tree has caused the blockage, and as the pipe is being replaced damage is not likely in the near future.

12 Mr Roodenrys states that pine cones fall on the corrugated iron roof but he is not aware of these causing any damage. He also states that pine needles build up on the ground, in guttering and drains requiring work to clear, but these have not caused damage.

13 I find on the basis of my observations and information provided by the parties that the Pine tree has not caused damage to Mr Roodenrys’ property and is not now causing damage. I also find on the basis of the observed good condition of the tree and only one reported instance of branch failure as noted above, that the tree is not likely to cause damage in the near future nor injury to any person. Therefore this tree does not meet any of the tests in s 10(2) (a) or (b) of the Act and does not come into the jurisdiction of the Court.

Tree No 2

14 This Cypress (Cupressus sp.) is the second tree in the line, located immediately north of the Pine tree. This is also a large, mature tree that appears to be in good condition with no visible decay or fungi fruiting bodies. It has a major central trunk. There is one large branch arising at about 5 m above ground that overhangs Mr Roodenrys’ home and is his main concern. I did not observe included bark at its junction with the main trunk and saw no other reason to conclude that the branch junction is weak. The canopy of the tree is well balanced, and there is no opening of the top of the canopy that might indicate senescence or gradual failure of branch junctions. The tree has not caused any above ground damage to Mr Roodenrys’ home in the past, it is not causing damage now, and I see no reason to conclude that it is likely to cause damage in the near future.

15 On the basis of the observed good condition of the tree, I also find that it is not likely to cause injury to any person. Therefore this tree does not meet the test in s 10(2) (b) of the Act.

16 I accept that roots of this tree have blocked the old sewer pipes as it is the closest large tree and there are no nearby trees on Mr Roodenrys’ property. On that basis the tree meets the first and possibly the second tests in s 10(2) (a) of the Act. However, under s (12) (h) of the Act, I consider that the age and condition of the pipes would have contributed to any blockage. Also, as Mr Roodenrys is replacing the sewer with PVC pipes it is not likely that the tree will cause blockage in the near future. Therefore I do not find it appropriate to order any intervention with this tree.

Tree No 3

17 This Cypress (Cupressus sp.) is also a large, mature tree that appears to be in good condition with no visible decay or fungi fruiting bodies. It divides into three trunks at about 3m above ground and this junction is hidden by ivy. The outer two trunks are similarly large and there are no bulges or ribs that might suggest weakness in them near this tri-junction. The central trunk is reduced in width at its origin between the outer two trunks, and may have included bark but I have no reason to assume that its strength is not adequate. The three trunks divide into seven upright leaders with no included bark seen in those junctions. The seven leaders branch and reduce in size at regular rates and intervals. The canopy of the tree is well balanced, and there is no opening of the top of the canopy that might indicate senescence or gradual failure of branch junctions. The tree has not caused any damage to Mr Roodenrys’ home in the past, it is not causing damage now, and I see no reason to conclude that it is likely to cause damage in the near future. On the basis of the observed good condition of the tree, I also find that it is not likely to cause injury to any person. Therefore this tree does not meet the tests in s 10(2) (a) and (b) of the Act and does not come into the jurisdiction of the Court.

Tree No 4

18 This Cypress (Cupressus sp.) is also a large, mature tree. From Mr Moore’s property it appears to be in good condition. However, about one quarter to one third of the tree, that portion on the north-western side visible from and overhanging Mr Roodenrys’ backyard, is dead or dying. Mr Moore advised that he had applied Roundup weedicide to Privet bushes on his land near the tree about 12 months ago, but I do not draw the conclusion that this damaged the tree. I observed four branches of about 0.1 to 0.15 m in diameter that have broken. Three of these dead branches are torn but still caught in the tree. Mr Roodenrys states that one branch fell and destroyed his clothes line between 12 and 18 months ago. As the tree has caused damage, and further branches are likely to fall and cause damage in the near future, this tree meets the tests in s 10(2) (a) of the Act. I also find that if the broken branches were to fall or other branches break and fall, they may cause injury to a person and this is sufficiently likely to meet the test in s 10(2) (b) of the Act.

19 As stated earlier, much of this tree appears to be in good condition. Pruning of the broken and dead and dying branches would remove the likelihood of damage and injury. On this basis I would intend to order pruning of the broken, dead and dying branches, with the work to be completed within 12 months at Mr Moore’s cost.

Agreement of the parties

20 At the hearing, after inspection of the trees and discussion of the issues, the parties reached their own agreement to remove all four trees sharing the cost equally, and requesting the Court not to issue any orders for intervention with the trees.

Conclusion

21 I find that the application is upheld in part and I had intended to order pruning of one of the trees. However as the parties have reached an agreement and the applicant no longer requests an order for intervention with the trees, I intend to dismiss the application.

Orders

22 The Orders of the Court shall be that the application is dismissed.

___________________

Peter Thyer
Acting Commissioner of the Court