So v Turnbull

[2021] NSWLEC 1424

Land and Environment Court

New South Wales

Medium Neutral Citation:

So v Turnbull [2021] NSWLEC 1424

Hearing dates:

22 July 2021

Date of orders:

22 July 2021

Decision date:

22 July 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders:

(1) The application is refused.

(2) The exhibits are returned, except for Exhibits A and 3.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – neighbouring tree – damage to property – whether the tree caused damage – evidence – tree has been removed – compensation – acts or omissions of the parties – application refused

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 4, 7, 10, 12

Category:

Principal judgment

Parties:

Alice So (Applicant)
Tania Turnbull (Respondent)

Representation:

I So (Agent) (Applicant)
S Karatasas (Agent) (Respondent)

File Number(s):

2021/107846

Publication restriction:

No

Judgment

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

Background to the application

1. Alice So (‘the applicant’) has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking compensation from her neighbour, Tania Turnbull (‘the respondent’), for property damage she says was caused by Ms Turnbull’s tree. No orders are sought for the tree, which has been removed.

Framework for this decision

2. The Court may only make orders under Pt 2 of the Trees Act if satisfied that the applicant has made a reasonable effort to reach agreement with the tree’s owner (s 10(1)(a) of the Trees Act).

3. Then, at s 10(2) of the Trees Act, the Court may only make orders if satisfied that the subject tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or is likely to cause injury to any person. Then, before making any orders, the Court must consider the matters at s 12 of the Trees Act.

4. Although the subject tree has been removed, it is still taken to be situated on the respondent’s land for the purposes of the application (s 4(4) of the Trees Act).

The hearing

5. Due to current COVID-19 restrictions, the hearing took place online via audio-visual means. Ms So’s son, Ivan So, represented her, while property manager Sam Karatasas represented Ms Turnbull. Relying on the available evidence and submissions made during the hearing, I was able to make this decision without requiring a subsequent site view.

The applicant made reasonable effort

6. Ms So contacted the respondent’s property manager in 2020. She later met with Mr Karatasas onsite, sent emails and correspondence, and requested mediation. I am satisfied that her efforts to reach agreement were reasonable.

Did the tree cause damage to the applicant’s property?

7. For many years, an umbrella tree (Schefflera actinophylla) (‘the tree’) grew in the northeast corner of Ms Turnbull’s property, next to the common boundary shared with Ms So. On Ms So’s side of that boundary a path extended from the footpath to her front door. The tiled path became cracked and uneven. Along Ms So’s front boundary is a brick wall, approximately six feet tall until it was reduced in height in 2017 by removing its upper brick courses. The wall tilts outward slightly towards the footpath.

8. Ms So alleges that the damage to her path and wall described above was caused by the umbrella tree. In February 2021 she engaged a contractor to remove her pathway, revealing extensive tree root growth beneath. Her application includes numerous photographs of these roots. Mr So submitted that the roots clearly enter Ms So’s property from the front corner of Ms Turnbull’s property where the tree grew. Mr Karatasas submitted that no evidence has been adduced to demonstrate this. He argued that the roots might come from the street tree, or from a tree that once grew in Ms So’s property.

9. Having studied the photographs in Ms So’s application, I observed that the roots found beneath her path and along her boundary wall (and there are many) are largest at the front northwest corner of her property, immediately adjacent to the tree’s location. They spread out from there, as would be expected if they came from that tree. Their branching structure indicates that their growth heads away from the tree – again, as would be expected if they are from the umbrella tree. While it is possible that these roots are from another tree, I am satisfied, on the balance of probabilities, that they belong to the umbrella tree.

10. Considering the size of these tree roots, I am also satisfied that they have contributed to the state of Ms So’s path, and possibly to the tilt of her front boundary wall. However, I consider that other factors are also likely to contribute to this damage, including the age of these structures, their design and construction, and possibly roots from other trees such as the street tree.

11. To the extent required at s 10(2)(a) of the Trees Act, I am satisfied that the tree has caused damage to Ms So’s property.

Should the respondent pay for all or part of the cost of repair?

12. With the jurisdictional test at s 10(2) of the Trees Act satisfied, the Court may make orders, but must first consider matters at s 12. Having considered all of the s 12 matters, most relevant here is s 12(h):

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

13. Mr So submitted that Ms So first noticed signs of damage in early 2020. I take it that he was referring to the path, as he later stated that the front boundary wall was already out of vertical alignment in 2017. A brief history of relevant events is set out below:

• 2017: the applicant noticed her front boundary wall was tilting outwards.

• 2017: the applicant reduced the height of her front boundary wall by removing several brick courses.

• July 2020: Ms So sent an enquiry to Ms Turnbull’s property manager via realestate.com. Mr Karatasas submitted this communication went unnoticed.

• October 2020: Ms So attended the office of Ms Turnbull’s property manager to discuss the issue. The property manager asked for further information.

• December 2020: Ms So sent photographs of the damage to Mr Karatasas via email.

• January 2021: Mr Karatasas met Ms So onsite to observe the damage. Mr Karatasas said he would remove the tree if its roots were found to be causing damage. Ms So said she would engage a contractor to remove the path.

• February 2021: Ms So advised Mr Karatasas that tree roots were found under the path.

• March 2021: the respondent gained council consent to remove the tree and then removed the tree and its roots.

14. I find it relevant that Ms Turnbull (and her property manager) had no knowledge of the damage prior to October 2020, or possibly a little earlier in July 2020. Ms Turnbull was presented with no evidence suggesting her tree was a cause of damage to Ms So’s property until February 2021, and then promptly removed the tree the following month. It is not suggested that further significant damage occurred within that month. Prior to February 2021, there was no reason for Ms Turnbull to suspect her tree was causing any damage. The tree grew immediately adjacent to a brick wall on the common boundary between the two properties. That wall appears to be undamaged. Any property inspection from within Ms Turnbull’s property would not have suggested her tree was causing damage. Once she was alerted and satisfied that her tree might be causing damage to Ms So’s property, she acted promptly to remove the tree. Ms Turnbull has not acted negligently. She has not omitted to take reasonable action to prevent property damage. She has not continued a known nuisance. She has taken reasonable action to prevent further damage once aware of it. Ms So was aware of damage, at least to her wall, in 2017. She did not inform Ms Turnbull of any damage until 2020, and took no steps to demonstrate causation until early 2021. In the wording of s 12(h)(i), this might be considered an ‘omission by the applicant’. For these reasons, it would not be appropriate for Ms Turnbull to pay for damage to Ms So’s property.

Orders

15. For the reasons set out above, the Court orders:

1. The application is refused.

2. The exhibits are returned, except for Exhibits A and 3.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 23 July 2021