Stevens v Russell

[2016] NSWLEC 1233

Land and Environment Court

New South Wales

Medium Neutral Citation:	Stevens v Russell & anor [2016] NSWLEC 1233
Hearing dates:	31 May 2016
Date of orders:	08 June 2016
Decision date:	08 June 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	See [66]
Catchwords:	TREES [NEIGHBOURS] Damage to property, potential injury, compensation and rectification; adequacy of evidence; extent of damage before respondents owned their property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Limitation Act 1969 Environmental Planning and Assessment Act 1979 Uniform Civil Procedure Rules 2005
Cases Cited:	Cincotta v Huang & ors [2011] NSWLEC 1086 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Moroney v John [2008] NSWLEC 32 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Thornberry & anor v Packer & anor [2010] NSWLEC 1069 Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Lita Stephens (Applicant) Damien Russell and Naomi Curtin (Respondents)
Representation:	Applicant: Ms B Dunleavy (Solicitor) Respondents: Mr D Russell and Ms N Curtin (Litigants in person)     Solicitors: Applicant: Penmans Solicitors
File Number(s):	153945 of 2016

Judgment

1. COMMISSIONER: The owner of a property in Newtown has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of a mature Lillypilly (Acmena smithii) growing on the respondents’ property.

2. The applicant, Ms Stevens, is also seeking a payment of $32,383 from the respondents in order to rectify damage to her property she contends has been caused by the respondents’ tree. Apart from the alleged damage, Ms Stevens is also concerned that the tree may cause injury should it fail in a storm and that pavers lifted by tree roots are a safety hazard.

3. The respondents do not oppose the removal of the tree but submit it should be at the applicant’s expense. They oppose the proposed orders for compensation primarily on the basis that they have only owned the property since late November 2014 after most of the alleged damage had occurred.

4. The tree is growing at the rear of the respondents’ property. The tree partially straddles the common boundary between the parties’ properties. A recent survey shows the majority of the base of the tree to be on the respondents’ land with a small portion extending onto the applicant’s land. This satisfies the jurisdictional test in s (4)(3) of the Trees Act that the tree in question must be situated wholly or principally on [adjoining] land. The applicant’s property is the east of the respondents’ property.

The alleged damage

5. According to the Affidavit of Lita Rosemary Stevens [Exhibit D] the tree has caused the following damage to her property:

• Blocking of the sewer in January 2007 necessitating the replacement of the sewer pipes at a cost of $6,100.00.

• Damage to the timber dividing fence because of encroachment by the trunk in about May 2009 with the subsequent replacement of the fence at her expense ($674.00).

• Lifting of the pavers in her rear courtyard – first observed in or about February 2010.

• Cracking and leaning of the brick wall at the rear of her yard (observed since 2009).

• Cracking in walls and along cornices in the hallway, bedroom, bathroom, kitchen and living room of her house (observed since 2009).

• Blockage of the sewer in January 2015 necessitating clearing at a cost of $359.00. The plumber advised that roots had broken through the boundary trap and that this would need replacing at an estimated cost of $6,425.00.

6. According to Ms Stevens’ affidavit, in or about February 2010 she spoke to the managing agent of what has since become the respondents’ property. She raised the issue of the tree and it appears from conversations recorded in emails between the agent and Ms Stevens that an application was made to Marrickville Council seeking permission to remove it. From the Notice of Determination (NOD) issued by the council on 27 May 2010 it appears that the person who applied to the council was the owner or occupier of the adjoining property to the west of the tree; the reason for the application is not given on the NOD. On 3 June 2010 the agent informed Ms Stevens that council had refused permission for removal but had approved selective pruning; this is confirmed by the NOD. Ms Stevens says she sent several emails to council’s Tree Management Officer requesting an explanation of the council’s decision however no response was forthcoming. The NOD also provides information on the review process should an applicant be dissatisfied with council’s determination.

7. In September and October 2014 Ms Stevens engaged the services of an arborist, Mr Mark Bury, and an engineer, Mr Nicholas Abelas, to inspect her property and provide reports. The reports are included in the Application and claim form [Exhibit A] and are unchanged in the affidavits of Mr Bury [Exhibit B] and Mr Abelas [Exhibit C] both sworn on 5 May 2016. The affidavits include an acknowledgment by both experts of the Expert Witness Code of Conduct in Schedule 7, Uniform Civil Procedure Rules 2005. The affidavits also include a copy of the Code. Ms Stevens relies on the opinions of these experts. As the experts were not required for cross-examination, neither expert attended the hearing.

Arboricultural evidence

8. As stated above, Ms Stevens relies on Mr Bury’s report dated 2 October 2014. Given the applicant’s heavy reliance on this report I have included extracts from it. On page 3 of the report, in Section 1 - Synopsis, the stated purpose of the report is:

Report Purpose: To demonstrate that the removal of the tree to prevent injury to residents and damage to adjoining infrastructure is in the best interest of Council and the owners of the tree.

9. Elsewhere in section 1 Mr Bury indicates that a tree risk assessment will be undertaken.

10. In section 2 of his report - Background, Mr Bury refers to the request for a report “as the tree is causing a number of risk management issues…”, however these issues are not identified. In [2.2] he notes council’s 2010 refusal of the application to remove the tree. Mr Bury states: “Council refused the application on the basis that it was not the trees fault that roots had got into a faulty clay pipe sewer system. They also advised the owner at 41a Wells Street that the tree had reached maturity and would not cause further issues”. How Mr Bury knows this is not identified in his report and the source of his information is undisclosed. There is no copy of council’s determination included in his report.

11. According to Mr Bury’s report in section 3 – Method of Assessment, he visually inspected the tree and the site. He pushed a spike into the ground to assess compaction, tested the pH of soil samples and used AS4970 - 2009 Protection of trees on development sites to calculate the tree’s root zone. Mr Bury states in [3.3] that “The tree has not displayed the normal signs of root plate shear failure on the day of this inspection the 2nd October 2014. This was a visual inspection only and I have little history of works which involved work in the root zone of the tree on the property which could affect the stability of the tree”.

12. Section 4 of the report – Site Analysis, describes the site in very general terms and states at [4.2] that it is “located on disturbed Blacktown soils (bt). These soils have moderately reactive highly plastic subsoil, low fertility, poor site drainage. How this was determined is not provided in his report although it is assumed it was from “Soil Landscapes of NSW” listed in Appendix 6 of his report. At [4.3] he states in part that “This species of tree normally do well in this soil type and are not indigenous to this area of Newtown.”

13. In section 5 – Discussion, Mr Bury writes [as written and relevantly]:

5.1   Tree 1 is a tree in fair condition (See Appendix 1) [Tree description Schedule]. The root system is affecting infrastructure foundations of two properties at 41a and 43a Wells Street Newtown. The branch system of the tree requires correctional pruning away from the houses on both properties.

5.2   The tree has a root protection zone of 6.6 metres. To repair the damage caused to the house and install a root barrier would require a 5 metre incursion into the root zone.

5.3   Over 30% of the trees root system will be required to be removed to repair and protect infrastructure and a root barrier would have to be installed to stop the problem recurring again which would require further root pruning. The recommended amount of root loss that can be tolerated is 10%.

5.4   Syzgium smithii root systems have a well documented history of being very invasive and damaging infrastructure when located in small gardens and their root systems having access to a sewer system as I feel is the case in this circumstance.

5.5   [amenity value, significance, absence of fauna]

5.6   The tree is not suitable for the location given its potential size, soil type, and other site conditions as has been discussed above….

5.7   The trees roots system has caused and will be likely to cause more damage to property, as it is located within three (3) metres of infrastructure foundations.

5.8   As a result of the root system being pruned to repair infrastructure damage, it will lead to the tree no longer able to supply adequate carbohydrates, water and nutrients to sustain growth as is the case with the subject tree, the tree will enter a stage of retrenchment where dying back in the crown which has started to happen in the subject tree will occur.

5.9   Ultimately over the next 5 years the tree will reach a stage where it will be unable to respond to environmental stress wounds and decay and major site changes. With the reduced uptake of boron in the tree from its root system branch strength and root strength in the tree would have deteriorated. Furthermore there would also be a decrease in root strength also.

5.10   Root mapping could not be carried out…[evidently due to an elderly person being cared for…Mr Bury refers the reader to photographs in the report of what he contends is the damage caused by tree roots]

5.11   [generally as above]

5.12   [comments about suitability for replacement planting]

5.13   Reasonable alternative options are not available to avoid the necessity for tree removal. A significant amount of the trees root system will require removal to repair the infrastructure and install a root barrier and there is not a viable option to prevent further damage. The tree was poorly sited given its close proximity to the houses and the trees ultimate dimensions.

5.14   The success of a root barrier would be debateable given the likelihood of the tree developing strong adaptive growth. Furthermore with the onset of climate change and the stronger intensity of storms in the region (EG Hornsby Tornado 2013 and Mini Tornado Storm of January 1991) I would be reluctant to support the preservation of the tree without a large percentage of its root system.

5.15   The tree is a good specimen but its proposed removal although regrettable is the result of very poor site planning.

14. In his recommendations in section 6 of his report Mr Bury relevantly states:

6.2   The tree is causing a risk hazard to the residents of the property and adjacent property and if it were to be preserved then I would have serious doubts as to the structural integrity of the root system of the subject tree.

6.3   Given the extensive works that have to be carried out and the large amount of root excavation required to fix the damage to infrastructure on the site from the trees root system the removal of the tree is justified.

6.4   Councils concerns have been addressed in this report in conjunction with the verification of future risk issues that require works immediately in coming to the recommendation of this report.

6.5   The trees should be removed and replaced by more suitable specimen with root a root management system [and who should do the work]

15. The appendices include the tabulated Tree Description Schedule and photographs [Appendix 1]. Ms Dunleavy, the applicant’s solicitor drew my attention to the section of the table headed ‘Damage/Risk’ where Mr Bury notes the ‘Damage Observed’ “The trees roots system is impacting on paving at the rear of both 41 and 43 Wells Street Newtown and other infrastructure located within the root zone of the tree”. In answer to ‘Potential for future damage’ he answers “Yes” and states: “The trees root system will continue to damage the adjacent house foundations, paving and walls”. Later in ‘Dripline Disturbance’ he writes: “The root zone of the tree has been previously subjected to root pruning to repair a sewer line”.

16. Appendix 1 includes a collection of unnumbered photographs of the tree, its surroundings and the alleged damage caused by the tree including lifted pavers, a crack in a part of the respondents’ dwelling, the leaning rear wall, and what he says is evidence of that roots are starting to grow under the foundations. Several photographs appear to show tape placed on the paving to indicate the direction of root growth from the tree.

17. Other appendices include a table and explanation of safe useful life expectancy (SULE) [appendix 2], a site map [aerial view] [3], brief qualifications and experience [4], impact statement to install root barriers and repair infrastructure [calculations assumed to be based on AS4970 – 2009] [5], bibliography/references [6], and a disclaimer at [7].

Engineering evidence

18. On 28 October 2014, Mr Nicholas Abelas, a Chartered Professional Engineer representing Sydney Engineers, visited Ms Stevens’ property to investigate cracking of walls of her single storey terrace as well as lifting of pavers and a brick fence at the rear of her property. At paragraph [4] the report states: “We note that the comments and information provided herein are based on a visual walk through inspection only. Hence we cannot comment on hidden damage or faults which were not readily discernible on visual assessment at the time of the inspection. Accordingly, this report should be considered a visual inspection only”.

19. The observations recorded [paragraphs noted] and supported by referenced photographs are:

• Hallway: Significant wall cracking and separation of wall from ceiling cornices (at ]11]).

• Bedroom 2: Wall cracking and damage and ceiling cornice separation from wall noted (at [12]).

• Bathroom: Wall cracking in the junction of the walls and separation of ceiling cornices from the wall noted (at [13]).

• Kitchen: Wall cracking above kitchen window (at [14]).

• Living/Dining: More wall cracking and damage noted in this rear section of the property (at [15]).

20. At [16] Mr Abelas states: “It was observed that a large approximately 12m tree was growing on the boundary line within the adjoining western side property in the relatively small rear yards of the properties.” At [17] “A significant section of the tree was growing over the roof of the subject property.”

21. Other observations of the external sections of Ms Stevens property are:

• It was also observed that the lower section of the large tree trunk was growing into the fence causing damage to the timber palings and tree roots were causing significant uplifting and damage to pavers making the rear yard unusable and a health hazard (at [18]).

• Large quantities of leaves and dead tree matter were also covering sections of the yard (at [19]).

• It was also observed that the rear brick fence wall had been damaged by lifting and it was leaning out towards the rear lane approximately 100mm out of vertical (at [20]).

• A large diagonal crack was also observed in the brickwork wall opposite the large tree (at [21] - an external portion of the respondents’ dwelling).

22. At paragraphs [22] – [30] of his report, Mr Abelas provides his comments and recommendations. He concludes at [22] that in his opinion the damage has been caused by the respondents’ tree which he notes is within 3m of building structures. He refers to ‘research’ by CSIRO in regards to tree roots and buildings; he states that roots can cause damage to structures by either absorbing moisture from the ground beneath footings thus leading to foundation settlement and cracking or could cause direct damage by lifting pavements and footings if tree roots grow big enough and penetrate beneath those structures.

23. He cites AS2870 – 1996 Residential slabs and footings and the recommendation contained within that Standard which states that the planting of trees should be avoided near foundations of buildings. The clause in the Standard suggests planting distances away from footings from ¾ to 1.5 x the mature height of the tree depending on the class of the site. The report does not identify the class of this particular site.

24. He opines at [25] that the tree will continue to cause damage if it remains. He also considers at [26] that the proximity of the tree to the applicant’s property “poses a serious danger to the occupants if the tree fell on the roof during windstorms.”

25. At [27] he considers that due to the location of the tree the installation of a root barrier is out of consideration as its installation would likely require root pruning which could destabilise the tree.

26. In the light of his observations, Mr Abelas recommends removing the tree and, depending on the type of damage, repairing or rebuilding the damaged property once the tree is removed.

Plumbing

27. The applicant also relies on the hand written comments on the quote/tax invoice provided by the plumber who used a high pressure cleaning method to clear the sewer pipes on 6 January 2015. The notes state [as written]:

We can not guarantee as we do not know the condition of the pipe. No access for cameras.

Roots have broken through to the bottom of the boundary trap. It will block again + needs repaired.

28. Attached is a quote for $6425.00 to replace the boundary trap. The quote also includes the installation of a second inspection opening and a new micro flap.

Jurisdiction

29. 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.

30. 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…”. The onus in these matters is on the applicant to provide sufficient probative evidence to support their claim. In this case, the applicant relies on the experts’ reports and the notes on the plumber’s invoice. It is necessary to prove the nexus between the tree and the alleged damage. However, in Robson v Leischke [2008] NSWLEC 152 Preston, CJ at [179] notes that the tree need not be the sole cause of damage to property on an applicant’s land in order to engage the Court’s jurisdiction.

31. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination. 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, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

32. If any element of s 10(2) of satisfied, the Court’s powers to make orders under s 9 of the Trees Act are engaged. This requires the consideration of relevant matters in s 12 of the Act.

Observations

33. As is usual for these matters, the hearing commenced on site. It was deemed unnecessary for practical reasons to inspect the tree from the respondents’ property as the tree was clearly visible from the applicant’s side of the fence. I confirmed the location of the tree and observed the slight projection of the base of the trunk onto Ms Stevens’ property.

33. With the arboricultural expertise I bring to the Court, I concur with Mr Bury’s assessment of the tree’s health and condition – that is, it is a healthy, mature specimen with good form typical of the species, and with no obvious structural defects.

34. I observed the tilting of the rear brick wall towards the rear lane. The wall, illustrated in photographs 12, 13, 17 and 22 in Mr Abelas’ report, is a free-standing, part double, part single brick wall located between the applicant’s rear timber gates and the respondents’ rear timber fence. I observed the lifting and displacement of pavers in the rear courtyard. The area of lifting is greatest within a metre or so of the base of the tree. Beyond this area there are slight deflections of the surface. I was shown the cracking of the internal walls of the applicant’s house and a number of cracks in the single skin brick wall on the common boundary with the adjoining property to the east.

Consideration

Internal damage

36. I cannot be satisfied on the evidence of Mr Abelas that the tree has caused the internal cracking of the walls and the separation of the cornices. Mr Abelas states in his report that his inspection was based on a ‘walk through’ only. He did not contemplate any other possible causes of the cracking such as the age of the dwelling, nature of the footings, leaking pipes, reactive soils and foundation material, any additions or alterations, and so on.

37. I observed the damage to be primarily on the eastern side of the dwelling well away from the tree. The common/western wall of the semi-detached dwelling showed no signs of cracking. When asked during the hearing, Ms Stevens thought the house dates from the late 1800s or about 1900. Therefore the house could be over 100 years old and have footings that may have moved over the years. I note from Mr Bury’s report the reference to “Blacktown soils” and their “moderately reactive highly plastic subsoil” (see [12] above). While neither expert carried out any relevant sampling of the soil, it is possible that swelling and shrinking of the subsoil in the area may be a cause of the cracking. As stated by Mr Abelas at his [23], trees can extract water from soils, however, in the absence of any evidence to prove otherwise, the likelihood of the tree being ‘the’ cause, or even ‘a’ cause of the internal cracking remains a hypothetical possibility. I also note that if the guidance note in AS2870 – 1996 were to be mandated, there would be few trees in any urban area.

38. In regards to Mr Bury’s contribution to this element of the application, neither the introduction nor body of his report clearly articulate the nature of the “damage to the adjoining infrastructure”. As mentioned in [15] above, he states that the tree’s root system “will continue to damage the adjacent house foundations, paving and walls”. The only ‘evidence’ he provides is a small photograph of the paving near the back door with the caption “There is evidence that roots are starting to grow under foundations of the house”. If there is any unevenness it is very minor and certainly undiscernible from the photograph. While Mr Bury stated that he did not carry out “root mapping” because the yard was being used by an elderly person, it would not have been difficult or very disruptive for him to test his hypothesis by removing and then replacing the row of pavers near the backdoor. The photographs of tape placed on the pavers to indicate what he contends is the direction of root growth, are insufficient to prove causation.

39. I find the opinions of the experts are unsubstantiated. As there is no evidence that the tree has caused, is causing, or is likely in the near future to cause the damage to the applicant’s dwelling, this element of the application, including the claim for $15,000.00 to repair it, is dismissed.

40. Even if I had found the tree to be ‘a’ cause, no orders would be made for any payment of compensation/rectification costs by the respondents as Ms Stevens states in her affidavit that the internal cracking was obvious in 2009, well before the respondents purchased their property. An application for compensation for damage to property must be made against the owner of the tree at the time the damage occurred (see Thornberry & anor v Packer & anor [2010] NSWLEC 1069 at [5]) and be within the general six-year time limit imposed by the Limitation Act 1969 (see Moroney v John [2008] NSWLEC 32 at [32] and [33]). Ms Stevens was unable to demonstrate any incremental damage that may have occurred in the time that the respondents have owned their property. I also note that Ms Stevens did not seek to join the previous owner of the property as a third respondent (see Smith &Hannaford and Cincotta v Huang & ors [2011] NSWLEC 1086).

Rear brick wall

41. Mr Abelas notes the lean on the brick wall; this was confirmed on site. As for the internal cracking of the house, he provides no alternate explanation for the lean of the wall. In my experience of reading many engineers’ reports, and indeed many arborists’ reports prepared for tree dispute hearings, it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required.

42. While it is possible that roots may have contributed to the lean, it is not a proven fact and the opinions are unsubstantiated. No consideration was given to the age and construction, including the type and depth of footings, of the wall or to the fact that it is a free-standing unit not keyed into any other wall perpendicular to it.

43. Recent, and much clearer photographs included in Ms Stevens’ affidavit show what appears to be a small retained garden bed at the base of the wall and the top of the sewer inspection point on the inside of her property; the view of the wall from the lane shows no obvious deflection or cracking of the pavement at the base of the wall.

44. Therefore, given the absence of sufficient evidence I am not satisfied of the nexus between the tree and the lean of the wall and this element of the application is also dismissed. As for the internal damage, the applicant has been aware of the problem from 2009, and therefore the damage existed well before the respondents purchased their property.

Eastern boundary wall

45. This is a single skin brick wall which forms the dividing fence between the applicant’s property and the property to the east. It was not considered by either expert. While Ms Stevens pointed out a slight deflection in the paving in the vicinity of the wall, a deflection she says is evidence of root growth, in my view this is insufficient evidence to prove that the tree is a cause of the cracking of the wall. If I am wrong in this, I observed cracking in other parts of the wall and it is possible that other factors such as footings, construction, and changes on the adjoining property may have contributed to its current condition. In any event, as there is insufficient evidence to satisfy s 10(2) this element of the application is also dismissed.

Cracking of the respondents’ wall

46. The three affidavits tendered by the applicant include photographs of a diagonal crack in the eastern side wall of the respondents’ dwelling which projects to the north beyond the applicant’s dwelling. The applicant’s clothesline is attached to this wall. The survey included in the application claim form confirms this to be part of the respondents’ dwelling.

47. The Court has no jurisdiction to consider damage to property on a respondent’s land and this element of the application is dismissed (see Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420).

Paving

48. Virtually the entire rear courtyard at the rear of the applicant’s property is paved. Contrary to Mr Abelas’ statement at [18] of his report in which he states that the courtyard is “unusable and a health hazard”, I observed the majority of the paving to be level however there are areas of it where some uplift of pavers has occurred. The most significant lifting is an area of about 1m2 within about 1.5m from the base of the tree between the tree and the sewer inspection pipe. The degree of uplift in this section is severe enough to create a trip hazard and limit the use of this small portion of the courtyard. I am satisfied from the observations made on site that roots from the tree are a cause of this damage to the paving. As s 10(2) is satisfied, the Court’s jurisdiction to consider what, if any, orders should be made is engaged. This requires consideration of relevant matters in s 12 of the Trees Act. These are discussed later in this judgment.

Sewer junction

49. The evidence in regards to the alleged blocking of the sewer by tree roots is contained in the applicant’s sworn affidavit in which she states that the sewer pipe was replaced in or about 2007 and the hand written notes on the tax invoice from the plumber who cleared the pipes in January 2015. This evidence cannot be tested; however, I am prepared to accept that the tree’s roots have, in the past, caused blockage of the applicant’s sewer, and according to the plumber’s notes, this may happen again. Therefore on this basis, I am satisfied that s 10(2) is satisfied and the Court’s jurisdiction is engaged.

50. During the hearing it was confirmed that the replacement sewer pipe is PVC.

Potential injury

51. In her application claim form Ms Stevens states that a significant section of tree is growing over her roof. She also states that its proximity to her dwelling poses a serious danger to occupants should the tree fall during a storm. Ms Stevens also notes the dislocated pavers and the hazard they pose. She refers to the experts’ reports.

52. From the site inspection I do not recall any significant branches over-hanging the applicant’s house. The Tree Description Schedule in Appendix 1 of Mr Bury’s report does not identify any structural defects and notes that the tree has been pruned correctly in the past (although at [5.1] he states that branches need ‘correctional pruning away from the houses.’). He states at his paragraph [3.3] (see [11] of this judgment) that the tree ‘has not displayed any normal signs of root plate shear failure’ by which I take to mean that the tree is stable. However, notwithstanding these findings by Mr Bury, at [6.2] of his report (recorded in [14] of this judgment) in his recommendations he states: “The tree is causing a risk hazard to the residents of the property and adjacent property and if it were to be preserved then I would have serious doubts as to the structural integrity of the subject tree”. This is entirely contradicts his previous findings. Mr Abelas makes similar and unsubstantiated findings in his report at paragraph [26] (paragraph [24] of this judgment). With the arboricultural expertise I bring to the Court I saw nothing in the root zone or within the canopy of the tree that would lead me to conclude that the tree poses any obvious risk of failure.

53. In my view the absence of any signs of instability means that the risk of whole tree failure, while a hypothetical possibility, is remote and highly unlikely in the foreseeable future. Similarly, I am not satisfied of any risk of imminent or even foreseeable branch failure.

54. However, I accept the small area of significantly displaced pavers does pose a trip hazard. I also accept that should the roots cause a serious blockage to the sewer that may also pose a health risk. Therefore, I find these risks are sufficient to satisfy s 10(b) and thus to warrant further consideration under s 12.

The respondents’ position

55. During the hearing Mr Russell, the first respondent, submitted that the first he and Ms Curtin, the second respondent, knew about the alleged damage was from a letter, headed ‘Hi neighbour’, from Ms Stevens on 6 January 2015. This was 6-7 weeks after they had settled on their property. The letter, included in both Ms Stevens’ and Mr Russell’s affidavits, states her concerns about the tree, the lifting of the pavers and the blockage of the sewer. Attached to the letter were Mr Bury’s report and the quote from the plumber to replace the sewer junction.

56. From the material in Ms Stevens’ affidavit, the applicant’s solicitor wrote to the respondents on 4 May 2015 requesting them to apply to council to remove the tree and if this did not occur in a timely manner then an application to the Land and Environment Court would be made under the Trees Act. On 16 November 2015 the applicant’s solicitor wrote again to the respondents and asked them to pay the amount of $6,425 quoted by the plumber to repair the sewer as a way of remedying “your trespass on our client’s land”.

57. The respondents replied on 24 November 2015 and summarised their timeline of events including: they were first made aware of the problems with the tree on 6 December 2014; they did not own the property until late November 2014 (confirmed during the hearing – date of settlement 22.11.2014); as requested they applied to Marrickville Council for permission to remove the tree however given the location of the property within a heritage conservation area, more documentation than they expected was required; council refused the application and subsequently confirmed the refusal on review; on 16 November 2015 they were asked to pay the applicant $6425.

58. The respondents conclude in their letter that the request is unreasonable for a number of reasons including: the issues predate their ownership of their property; they have taken all possible steps to fulfil their duty of care by applying to council; council disagrees with the applicant’s claims; the request is for an upfront payment for works not completed and for which there is only one quote.

59. In regards to the alleged damage to the applicant’s property, during the hearing the respondents submitted that there may be other factors contributing to the damage such as faulty workmanship, and the age of the property.

60. Notwithstanding their concerns about the reasonableness of the request, the respondents do not oppose the removal of the tree but contend it should be at the applicant’s expense.

Discretionary matters – s 12

61. Before determining what if any orders should be made in regards to the tree, the paving and the sewer, I must consider relevant matters in s 12 of the Trees Act. In my view the relevant matters are:

• The tree is located close to the boundary. Although the tree is mature it will continue to grow, albeit more slowly as it ages. Therefore some continuation of root expansion could be expected (s 12(a));

• In considering s 12(b), the tree is protected by Marrickville Council’s Tree Management controls under Marrickville Development Control Plan 2011 (MDCP). As the parties’ properties are within a Heritage Conservation Area, any proposed interference with a tree requires a Development Application to be submitted to council. According to a letter from the respondents to Ms Stevens and her lawyers written on 24 November 2015 (Appendix J in Exhibit D), on the basis of the applicant’s concerns about the tree, the respondents applied to council to remove the tree. The DA included Mr Bury’s report but not Mr Abelas’ as a copy had not been provided to them by the time the DA was lodged. On 19 May 2015. Marrickville Council refused the application for removal. The reasons for the refusal essentially go to the adequacy of the arborist’s report and other documentation which failed to demonstrate the criteria listed in the relevant clause of MDCP. Specifically, no tree risk assessment was provided, the level of risk is considered low, the claimed damage to infrastructure is minor and could be mitigated, and overall there is insufficient justification to remove a moderate retention value tree. The determination also noted the location of the tree on the boundary and the need for consent from the adjoining owner. The applicant’s solicitors wrote to council and requested a review of the council’s determination, pursuant to s 82A of the Environmental Planning and Assessment Act 1979 (EPA Act). Mr Abelas’ report was included with the application for review. On 26 October 2015 Council wrote to Ms Stevens confirming the original refusal of the application to remove the tree and reiterating council’s view that the criteria for tree removal as listed in Part 2.20 - Tree Management in MDCP had not been demonstrated. In regards to the claimed damage to infrastructure the letter states:

(i)   Paving, which is minor and can be mitigated.

(ii)   The dividing wall, which is minor and has not been demonstrated and can be overcome;

(iii)   The opinions of wall cracking and damage in the building walls expressed in the Engineer’s Report are unsubstantiated; and

(iv)   That the tree is significant in the landscape and the level of risk from the tree is acceptable.

The letter also advises that the next level of appeal could be to the Land and Environment Court under s 97 of the EPA Act.

• Section 12(b2) considers the impact of any pruning. In previous cases, the Court has considered that ‘pruning’ also includes ‘root pruning’. For reasons which are not explained in either the arborist’s report or the engineer’s report the installation of a root barrier is suggested and then dismissed because of the extent of pruning it would entail. As Mr Bury’s report was written first, this idea may have come from him. At paragraph [5.2] of his report (see relevant extracts in [13] of this judgment) Mr Bury states that in order to repair the damage (that is not detailed in the body of his report) and to install a root barrier (which is suddenly introduced at this point of his report), would require a 5m incursion into the tree’s root system. Following paragraphs appear to outline what he considers may be the consequences arising from this action however the source of his information is not cited. There is nothing in his report that identifies where a root barrier would be installed. If indeed a root barrier had been proposed in any logical way as a method of preventing further uplift of pavers or root growth into the sewer junction, and if that root barrier was intended to be installed along or close to the boundary fence, then yes there would be a significant and unacceptable impact on the health and stability of the tree but this is not an option identified in the orders sought by the applicant.

• The tree contributes to the amenity of the respondents’ property and to the immediate locality. Although it is the rear of a small terrace it can be seen from the rear lane and therefore presumably from the rear courtyards of other nearby properties (s 12(b3)(e)(f)). The council determination notes its local significance. Although Mr Bury saw no wildlife in the tree, it could be reasonably expected that this species because of its flowering and fruiting characteristics would provide food and or shelter for local fauna and thus would contribute to local biodiversity (s 12(d)).

• Section 12(h) considers anything other than the tree that may contribute to the damage as well as the actions of the parties. The actions of the parties have been covered elsewhere in this judgment – see [6]-[7] and [54]-[57]. In regards to the paving, while it would appear that the primary cause of the lifting of the pavers is as a consequence of root growth, other contributing factors could include normal wear and tear, excavation and backfilling after replacement of the sewer resulting in uneven settlement. No information was provided as to when the paving was carried out. The alleged ingress of roots into the junction may be result of a poor connection between the newer PVC sewer pipes and the junction. It would appear that the blockage in January 2015 was the first since the pipes were replaced in January 2007 – some eight years previously. There is no evidence of any blockages since the pipes were cleared in January 2015.

• Section 12(j) enables the Court to consider any other matter considered relevant. In this regard there are two matters Firstly, the period over which the damage has been observed and the period over which the respondents have owned their property. The relevance of this has been discussed elsewhere in this judgment. Secondly, the quality of the expert reports, neither of which satisfactorily complies with cl.5(1) of the Expert Witness Code of Conduct which sets out the material that must be included in an expert’s report. Relevantly:

(b)   the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed),

(c)   the expert’s reasons for each opinion expressed,

(e)   any literature or other materials utilised in support of the opinions,

(f)   any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out.

By swearing their affidavits in May 2016 and agreeing to be bound by the Code, the experts knew that their reports were to be used in Court proceedings. It would have been entirely reasonable for them to review their reports in the light of the requirements of cl. 5(1) and prepare a Supplementary report or an addendum to their original report.

Conclusions and orders

62. After considering the evidence, such as it is, the only elements of the application to be determined are whether the tree should be removed and whether any contribution should be made by the respondents towards the damage to the applicant’s paving and sewer connection. I find the expert reports of very little assistance and I concur with Marrickville Council’s assessment of them. I find the arborist’s report contradictory and confusing.

63. I am not satisfied that the removal of the tree is justified at this stage; again, concurring with the council’s assessment, the damage is minor and capable of rectification. Therefore no orders will be made for the removal of the tree.

64. In respect of the blockage to the sewer, as noted above, the sewer remained unblocked for eight years after the pipes were replaced and have remained so since the pipes were cleared in January 2015 – some 16 months ago. I am also satisfied that the respondents cannot be held responsible for any blockage that may have occurred in the very short period from the time they purchased their property to when they were informed of the blockage after it had been cleared. Therefore I find that no orders will be made for the respondents to contribute to the cost of the clearing of the pipes in January 2015 or for the cost of replacing the junction. However, should the circumstances change and another application is made to the Court, as the respondents are now fully aware of the possibility of further root incursion, this would be taken into account (see Hinde v Anderson & anor [2009] NSWLEC 1148 and McCallum v Riodan & anor [2011] NSWLEC 1009 in regards to making a second application). That said, should another blockage occur, it would be incumbent on the applicant to inform the respondents as soon as possible so that the presence of roots can be confirmed and appropriate action taken.

65. Turning to the pavers, the applicant states that they have been uneven since at least February 2010. The photographs taken by the applicant’s experts in September and October 2014 show the lifting of the pavers in the period shortly before the respondents owned their property. I am satisfied that some additional displacement has occurred but in a very small area. The application claim form includes a quote for $4,300.00 for repaving; the size of the area is not stated so it is presumed it is the whole rear courtyard. Allowing that perhaps 10% of the courtyard is significantly affected by tree roots and the minor incremental change in the time the respondents have owned their property, I find that a contribution of $200.00 towards the relaying of the pavers is more than reasonable. Orders will be made for this to be paid after the receipt of a tax invoice for the completed works should the applicant wish to repave the courtyard.

66. In conclusion, the Orders of the Court are:

1. The application to remove the tree is dismissed.

2. The application for compensation of a sum of $32,383.00 for the repair and rectification of specified elements of the applicant’s property is dismissed.

3. Should the applicant proceed with the repaving of the rear courtyard, the work is to be completed within 6 months of the date of these orders otherwise order (4) lapses.

4. The respondents are to pay the applicant the sum of $200.00 within 21 days of the date of the receipt of a tax invoice for the completed works in order (3).

5. The exhibits except A are returned.

__________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 08 June 2016