Strata Plan 5144 v David and Gale Haworth and Richard Smith v David and Gale Haworth

[2009] NSWLEC 1217

Land and Environment Court

of New South Wales

CITATION:	Strata Plan 5144 v David and Gale Haworth and Richard Smith v David and Gale Haworth [2009] NSWLEC 1217
PARTIES:	APPLICANT Strata Plan 5144 (Appeal 20096 of 2009) Richard Smith (Appeal 20246 of 2009) RESPONDENT David and Gale Haworth
FILE NUMBER(S):	20096; 20246 of 2009
CORAM:	Tuor C - Thyer AC
KEY ISSUES:	TREES (NEIGHBOURS) :- Removal and pruning of trees damage to property compensation tree root barrier and sewer pipes
DATES OF HEARING:	26 June 2009
EX TEMPORE JUDGMENT DATE:	26 June 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr P Panikkar for Appeal 20096 of 2009 and Mr C Smith for Appeal 20246 of 2009 RESPONDENT Mr and Mrs Haworth

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C & Thyer AC

26 June 2009

20096 of 2009 and 20246 of 2009

Strata Plan 5144 v David and Gaye Haworth and
Richard Smith v David and Gaye Haworth

JUDGMENT

1 COMMISSIONERS: These are two appeals in relation to trees along the western boundary of 55 Lang Street, Burwood (the property).

2 Mr and Mrs Haworth are the owners of the property, which is listed as a heritage item under Burwood Local Environmental Plan 19.

3 Strata Plan 5144 is the applicant in Appeal No 20096. It is represented by Mr P Panikkar, the Strata Manager for Strata Plan 5144 at 76 Bay Street, Croydon, the adjoining land (the land) to the west of the property. Mr C Smith is representing the applicant in Appeal 20246 of 2009. He lives at Villa 10, 76 Bay Street Croydon. They make applications under the Trees (Disputes Between Neighbours) Act 2006 (the Act).

4 Strata Plan 5144 is seeking orders that Mr and Mrs Hayworth:

• Prune and maintain the branches that overhang the land at Villas 9 and 10.
• Install a root barrier
• Pay for the cost of the works

5 Strata Plan 5144 claims in relation to Villa 9 that the following damage has been or is being caused by the trees:

• Roots of the trees affect the plumbing of the toilet
• Leaves and twigs from overhanging branches stain clothes and clog gutters

6 Strata Plan 5144 claims in relation to Villa 10 that that the following damage has been or is being caused by the trees:

• Roots of the trees affect the plumbing of the toilet
• Leaves and twigs from overhanging branches stain clothes and clog gutters
• Cracking and lifting of pavers in the backyard from tree roots
• Damage to the sub floor

7 Mr Smith is seeking orders:

• For damage to his property and compensation
• Repair of the damage
• Removal of the trees

8 In addition to the damage raised by Strata Plan 5144, Mr Smith claims that the trees are causing the following damage:

• Cracking in interior and exterior walls and around the unit
• Two broken toilets
• Cracks in tiles in bathroom and hall
• Carpet flooded and removed due to water damage
• Tree seedlings between pavers

9 On the basis that the application has proceeded beyond the directions hearing to this on-site hearing, we are satisfied that:

• The applicants have made reasonable effort to reach agreement with the respondent in accordance with s 10(1)(a);
• The applicants have given notice to the parties in accordance with s 8;
• The trees are on certain land in accordance with s 4(1), and not on land to which the Act does not apply s 4(2);
• The applicants are owners/occupiers of the land in accordance with s 3(1) and s 7 of the Act.

10 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 on the land?
Is the tree now causing damage to the applicant's property on the land?
Is the tree likely in the near future to cause damage to the applicant's property on the land?
Is the tree likely to cause injury to any person?

11 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?

12 Further, before determining an application, the Court is to consider the matters in s 12 of the Act.

The trees

13 The trees, listed by location, starting at the northern end of the property beside Villa 10 are a Camphor laurel, Bottlebrush, Maple, Pittosporum, Paperbark, Peppercorn, and a row of Cypress trees south of Villa 9. Each is a tree within the meaning of that term in s 3(1) of the Act.

14 The Haworths say that the fence is on the common boundary, and as the trunk of each tree at ground level is entirely on the Haworths’ side of the fence, we find that each tree is situated wholly on the property, meeting s 4(3) and s 7 of the Act. As a consequence the Court may determine the applications.

15 The Camphor laurel is a large, mature tree about 15 m tall, and over 100 years old. The trunk is located about 5 m from the common boundary. It appears to be in good condition with no obvious structural defects. Mr Smith says that a live branch about 2.5 m long fell onto his property in a storm, and that smaller dead wood falls occasionally. No falling branches have caused damage. We observed that there is deadwood in the crown of the tree, and on the basis that the area under the tree on Mr Smith’s property is used for clothes drying and for outdoor play, we find that injury to a person is likely from that dead wood, thus meeting test in s 10(2)(b) of the Act. We observed small Camphor laurel roots about 3mm diameter adjacent the wall of Mr Smith’s house. No evidence was provided that larger roots of this tree are under the paving or the house, but on the balance of probability we accept that larger roots are likely to be present and likely to have caused damage to paving or sewer pipe, thus meeting the first test in s 10(2)(a) of the Act.

16 We observed that branches of the tree overhang the roof of Mr Smith’s house, and were told that clearing of leaves from the gutter at 6 monthly intervals was not sufficient to stop blocking of the gutter. In this regard we find that the overhang is not heavy or extensive, and that pruning should not be ordered when more frequent cleaning and more adequate downpipes would alleviate the problem. We accept that washing on the clothes line under the tree may have been stained by debris from the tree, thus meeting the first and third tests in s 10(2)(a) of the Act.

17 The Bottlebrush is a small tree about 4 m tall. There is no evidence that it meets any of the tests in s 10(2) of the Act. It is located about 1.5 m from the dividing fence but its western trunk is very close to the fence.

18 The Maple is also a small tree about 4 m tall, and there is no evidence that it meets any of the tests in s 10(2) of the Act.

19 The Pittosporum is a small tree about 5 m tall, and there is no evidence that it meets any of the tests in s 10(2) of the Act.

20 The Paperbark (Melaleuca armillaria) is an overmature tree about 9 m tall. About half of its crown has been lopped, and much of the remainder hangs over Mr Smith’s roof. It is located less than 1 m from the dividing fence. He says that it makes a substantial contribution to blocking the guttering. We observed small roots of this tree under the paving in his yard, and on the balance of probability find that it is likely to have caused damage to paving or sewer pipe, thus meeting the first test in s 10(2)(a) of the Act.

21 The Peppercorn is a mature tree about 11 m tall with trunk about 0.3 m diameter and a light crown. It is located about 2.5 m from the dividing fence. We observed a root about 100 mm diameter under the paving in Mr Smith’s yard. That root had damaged the paving and is likely to be the cause of nearby damage to pipes. At the hearing the root was traced back to the Peppercorn tree. On that basis we find that the Peppercorn tree meets the three tests in s 10(2)(a) of the Act.

22 The Cypress trees overhang the yard of Villa 9, but we were not given any evidence that they or any other trees meet any of the tests in s 10(2)(a) or s 10(2)(b) of the Act.

23 As a consequence the Court has power to make such orders as it thinks fit in accordance with s 9 of the Act, regarding the Camphor laurel, the Paperbark and the Peppercorn.

s 12 Considerations

24 Relevant considerations under s 12 are:

• The age of the Camphor laurel tree and its location in the grounds of a property that is heritage listed in the Council LEP;
• The fact that other large trees located on properties to the north of Mr Smith’s may have contributed to damage. Those trees were removed at various times between about two and five years ago;
• The Haworths were given notice of damage to the sewer in June 2006. Although some sewer clearance has taken place since then, there is no clear evidence of what further damage to pipes or damage to paving has occurred since then;
• The house wall of villa 10 is about 3 m from the common boundary. When it was built in about 1971, the Camphor laurel would have been large. Without any evidence to the contrary, we find that Villa 10 could, and should have been built further from the tree, and that additional distance may have avoided the present problems;
• The method of construction of the paving does not appear to have included any barriers to stop growth of roots from the adjacent trees;
• The earthenware sewer pipes are now about 40 years old, and are likely to have faults caused by age and wear and tear;
• Villa 10 is built on reactive clay, and the building inspection report states that damage to the villa in the past has been caused by soil movement unrelated to these trees.

25 The Haworths offered to pay the costs of the removal of the paper bark and the pruning of the Camphor laurel. They also offered to pay half the cost for the root barrier on the basis that the proximity of Villa 10 to the common boundary and that, at least the camphor laurel tree, predated the construction of the Villas. These factors in their opinion, contributed to any damage resulting from the trees. They also stated that the Camphor laurel is part of the heritage significance of the property and enhances the area and that therefore their contribution to the root barrier should only be half. We do not accept this. The trees are likely to cause damage in the future, which is attributable to the roots. While we have not required compensation for the previous damage, as it has not been proved that it directly results solely from the trees. However, in relation to future damage we find that there is a direct relationship between the presence of roots and the potential for damage, which is the responsibility of the Haworth’s as the owners of the trees to manage.

Compensation

26 Mr Smith sought compensation for the damage that, in his opinion, had been caused by the trees. We are not satisfied on the evidence before us that the damage can be solely attributable to the trees given the instability of the clay soil, the proximity of the villas to the trees, the presence of, at least the camphor laurel tree, prior to the construction of the villas and the quality of construction of the villas themselves. While we accept that tree roots have caused some damage, we are not satisfied that this has occurred since the applicant has informed the Haworths of his concerns. Also on the basis that the Haworths pay for the works to the trees to prevent further damage, we are satisfied that it is not reasonable to also require compensation. We also note that the Strata Manager has undertaken to repair the sewer and paving and cut out tree roots.

27 The application is upheld in part and the Court makes the following Orders in Appeal No 20096 of 2009 and Appeal No 20246 of 2009:

1. These Orders apply to the respondent’s property at 55 Lang Street, Burwood;
2. The Paperbark tree shall be removed;
3. The Camphor laurel tree shall have the first branch which arises at about 6 m above ground on the south-western trunk pruned off adjacent to the trunk, and all dead wood larger than 20 mm diameter shall be pruned from the western side of the tree;
4. A root barrier shall be installed on the respondent’s property within 150 mm of the dividing fence. That barrier shall extend from the line of the southern wall of the garage of Villa 9 to the northern end of the property, overlapping the metal retaining wall near the northern boundary by at least 300 mm and sealed to that metal wall. The root barrier shall be a continuous deflecting barrier to a depth of at least 800 mm and extending at least 50 mm above ground level. The root barrier trench shall be backfilled with highly compacted site clay to reduce root penetration. The work shall be carried out by a suitably qualified contractor;
5. The work described in Orders 2 and 3 above shall be completed at the respondent’s cost, within four months of the date of these orders;
6. The work described in Orders 2 and 3 above shall be done by an AQF Level 3 arborist who has suitable insurances, and the work shall be done in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998) ;
7. The work described in Order 4 above shall be completed at the respondent’s cost, within six months of the date of these orders;
8. The work described in Orders 2 and 3 above shall take place at reasonable times, and on reasonable notice to the applicants, and the applicants shall grant access over their property for the work to be done.

___________________

Annelise Tuor
Commissioner of the Court

___________________

Peter Thyer
Acting Commissioner of the Court

The formal orders may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at