Standen v Reveley

[2013] NSWLEC 1265

Land and Environment Court

New South Wales

Medium Neutral Citation:

Standen & anor v Reveley & anor [2013] NSWLEC 1265

Hearing dates:

19 March 2013

Decision date:

19 March 2013

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

(1)Within 60 days of the date of these orders, and then annually within 30 days either side of the anniversary of this date, the respondents are to engage at their cost a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune the gum tree: to remove all deadwood greater than 30mm in diameter; to reduce any overextended limbs but removing no more than 15% of live crown mass; and to remove any limbs identified by the arborist as hazardous while carrying out these works. The works are to be done in accordance with AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(2)Each year the respondents are to provide the applicants with at least 7 days' notice of the works.

(3)The applicants are to provide all access necessary for the works to be done during reasonable hours of the day.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS); damage; injury; sewer; compensation; orders for pruning.

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Category:

Principal judgment

Parties:

APPLICANTS
Bruce Standen
Tin Ho

RESPONDENTS
Andrew Reveley
Margaret Reveley

Representation:

APPLICANTS
Bruce Standen and Tin Ho
(Litigants in person)

RESPONDENTS
Andrew Reveley and Margaret Reveley
(Litigants in person)

File Number(s):

21037 of 2013

Judgment

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

The application

1. Mr Standen and Ms Ho (the applicants), owners of a property in Keiraville, claim that a neighbouring gum tree has damaged their driveway and sewer and that falling branches, or even whole tree failure, may cause them injury. They have applied to the Court under the Trees (Disputes Between Neighbours) Act 2006 seeking orders for the tree's removal, for compensation for costs incurred in repairing the sewer, and for the costs of repairing a section of the driveway. They provided tax invoices and quotes to substantiate these claims.

1. The Reveleys (the respondents) own the neighbouring property on which the tree grows. They value the tree and do not wish to remove it, although they say they are willing to prune it.

Framework of the Act

1. Before I can make any orders I must be satisfied, according to s 10(2) of the Act, that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants' property, or is likely to cause injury to any person. Only then can I make orders as I see fit to remedy the situation, not necessarily the orders sought by the applicants, after considering a range of matters set out at s 12 of the Act.

1. The application includes a structural engineer's report. Neither party has submitted arboricultural evidence. I rely on my own expertise regarding trees and damage caused by trees.

Onsite view

1. Both properties slope down steeply towards the street. Land in the respondents' front garden is higher than land in the applicants' front garden. The higher land is supported by a retaining wall within the applicants' property, a wall constructed of vertical logs. Other retaining walls also support the land, including a brick wall along the respondents' front boundary.

1. The tree is a tall Sydney Blue Gum approximately 35 years old, growing adjacent to the common boundary, a few metres back from the property frontage. It appears to be in good health with a typical amount of deadwood for a healthy tree of this species. One relatively small broken limb is hanging above the applicants' driveway. The tree has no apparent signs of major structural defects.

1. The applicants' retaining wall shows signs of deterioration. Near the property frontage it leans outward slightly. Some logs are missing from the wall.

1. The concrete driveway has several narrow cracks crossing it, generally in radial directions in line with the tree trunk. The concrete is not lifted at the cracks and they do not pose trip hazards. In places well away from the tree and, according to the applicants, related to past machinery use, sections of the driveway have lifted or settled so there is a raised edge of perhaps 20 mm along construction joints. They cause a slight trip hazard. The driveway is approximately 40 years old.

1. One crack runs across the driveway to the sewer inspection point. The top of the inspection point is PVC pipe, replaced by the applicants a few years ago. Below this inspection point is the original terracotta sewer pipe, approximately 40-50 years old. The applicants say a large tree root was removed from the sewer pipe early last year. They have kept the root. It is approximately 100mm diameter and appears to be from a Eucalypt. Other smaller trees are in the vicinity, on the applicants' property. Roots can be seen growing in the riser at the inspection point, above the sewer pipe. They appear to enter the pipe at the join where the applicants say they repaired the pipe a few years ago.

1. The respondents' front retaining wall leans outwards slightly. They have repaired a brick pier atop the wall at the front corner.

The driveway

1. The applicants say that roots from the gum tree damaged the driveway and cracked the sewer. The cracks in the driveway are relatively minor. If I accept that they are caused by roots of the tree, which appears likely, that would be damage to the applicants' property, caused by the tree, and would enliven the Court's jurisdiction. However considering the discretionary matters under s 12, I would not make any orders for repair of this section of the driveway. The driveway is aged and is in worse condition elsewhere, or at least has faults elsewhere that create a greater risk and that would be more demanding of repair. I see no reason why the respondents should pay for replacement of one section when the remainder of the driveway is in such condition. If the applicants wish to replace the entire driveway due to its condition, that is a matter for them. Further reasons for not ordering the respondents to pay for driveway repair follow below.

The sewer

1. Turning to the sewer pipe, it is common for 40-year-old terracotta pipes to have deteriorated such that there are small, or perhaps even larger, cracks in their joins and elsewhere. Tree roots may grow into these cracks and expand once they are in the pipes, causing further damage. Such damage by tree roots is therefore unlikely when pipes are in good condition without cracks.

1. The large size of the root found in the pipe indicates it has been there for some time. Its very growth there, and thus its increase in girth beneath the driveway, is a result of the resources available within the sewer pipe. To my mind, the tree was likely able to exploit this due to the pre-existing condition of the pipe. Trees are a part of the urban environment. Maintenance of property, including sewer pipes, is the responsibility of its owners.

1. While I accept that tree roots are a cause of damage to the pipes, and this also enlivens the Court's jurisdiction, with the discretion available to me under s 12 of the Act, and considering the contribution of aged terracotta pipes to the problem, I would not make orders for the respondents to compensate the applicants for sewer clearing.

1. Furthermore, if pipes were in good condition, and the tree root had not entered them, it is unlikely that the root beneath the driveway would have reached the same girth or caused the extent of cracking that is present. This provides further grounds for not ordering the respondents to contribute to repair of the driveway.

Tree failure

1. The applicants submit that the tree is too big and that the surrounding retaining walls were not constructed to support such a large tree. They say the tree may fail.

1. The retaining walls support a significant mass of earth and have been in place for some time. There is no evidence that their current condition is a result of the tree's weight or the growth of its roots, rather than age and the movement of soil and water. There is no evidence to suggest that the tree is likely to fail, or that it will cause failure of retaining walls.

1. The report by Michael Aplin, of K F Williams & Associates Pty Ltd (submitted by the applicants in Exhibit B), states:

The undermining of structures by the tree roots has caused significant damage and cracking of brickwork walls resulting in displacement and cracking up to 30mm, displacement and damage to timber retaining wall posts...

1. The author of the report does not describe any investigations that were undertaken, does not say that any tree roots were observed, and in the ten photos that accompany his report there is not one tree root to be seen. There is nothing in the report that explains how the above conclusion was reached. The report does not assist the Court.

1. Regarding branch failures, I note that there is a hanging branch in the crown and that several long limbs extend well over the applicants' driveway. There is also deadwood above the applicants' property. I accept that there is a risk of injury from falling branches. It is the respondents' responsibility to maintain their tree. Therefore orders will be made for pruning the tree.

1. Based on the foregoing, the orders of the Court are:

(1)   Within 60 days of the date of these orders, and then annually within 30 days either side of the anniversary of this date, the respondents are to engage at their cost a suitably qualified arborist (minimum AQF level 3) with appropriate insurances to prune the gum tree: to remove all deadwood greater than 30mm in diameter; to reduce any overextended limbs but removing no more than 15% of live crown mass; and to remove any limbs identified by the arborist as hazardous while carrying out these works. The works are to be done in accordance with AS4373 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(2)   Each year the respondents are to provide the applicants with at least 7 days' notice of the works.

(3)   The applicants are to provide all access necessary for the works to be done during reasonable hours of the day.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 20 March 2014