Tunsted v Stead

[2009] NSWLEC 1069

Land and Environment Court

of New South Wales

CITATION:

Tunsted v Stead [2009] NSWLEC 1069

PARTIES:

APPLICANT
Garry Tunsted

RESPONDENT
Kate Stead

FILE NUMBER(S):

21231 of 2008

CORAM:

Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of the trees and the retention and poisoning of the stumps, damage to property and may cause injury to people

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Robson v Leischke [2008] LEC 152
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

06/03/2009

EX TEMPORE JUDGMENT DATE:

6 March 2009

LEGAL REPRESENTATIVES:

APPLICANT
Garry Tunsted, litigant in person

RESPONDENT
Kate Stead, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

6 March 2009

21231 of 2008 Garry Tunsted v Kate Stead

JUDGMENT

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

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Garry Tunsted who resides at 1 Cedar Drive Townsend but owns a property at 21A Stanley Street Maclean. The application concerns three Cinnamomum camphor (Camphor Laurel) trees located on the northern and rear corner of a property at 17-19 Stanley Street Maclean; the property is owned by Ms Kate Stead.

2 The applicant seeks the removal of the trees and the retention and poisoning of the stumps as he contends that the trees have caused and could, in the near future, cause damage to his property and may also cause injury to people.

3 In his application Mr Tunsted states that the following damage has been caused to his property:

a. roots are blocking drains and sewage pipes
b. footpaths and joints are being pushed apart by roots
c. large roots are exposed in the yard
d. the gutters are continuously full of leaves causing them to rust out
e. the downpipes are continuously blocked and have had to be split to clear the blockages; and
f. leaves in general are covering lawns, roof and verandah.

4 The future damage he anticipates is that will be caused to his property by the trees is as follows:

a. growing roots have the potential to break the retaining wall at the back of the house allowing water through to the bottom floor;
b. tree roots in the front garden may be, and are likely to crack the front entry
c-f. ongoing root damage to drains, pipes, footpaths and joints, root growth in yard and damage to gutters and downpipes.

5 The applicant also lists what he considers to be damage to public property at the rear of 17-21A Stanley Street. Damage to property other than that of the applicant is beyond the scope of s. 7 of the Trees (Disputes Between Neighbours) Act 2006.

6 The applicant is also concerned that the trees pose a risk of injury to people using the public footpath at the rear of the property. He is worried that the trees are decayed and may fail onto the pathway, a neighbouring house and may bring down powerlines.

7 At the on-site hearing it was heard that the respondent had sought advice from an arborist, Mr Nigel Smith, who gave a verbal opinion on the state of the trees and what actions he thought the Court would order. Given this verbal advice, the applicant and the respondent came to an agreement to have the trees removed, however, since then, both the applicant and the respondent have agreed to abide by the submissions made in the application.

8 The respondent does not want the trees removed as she values the privacy they afford, they are used as habitat by native fauna and they probably play a major role in stabilising a steep bank on the northern end of her property.

9 The applicant was advised in writing on two separate occasions by two environmental officers from Clarence Valley Council that they would not object to the removal of the trees. There was no indication that either officer was an arborist.

10 Coming to the trees. They are three mature Camphor Laurels in a tight group within about 2- 4 metres of each other and planted in a triangular arrangement. Tree 1, the closest to the applicant’s property, is approximately 1 metre in diameter at breast height (dbh) and has a basal wound on the lower, western side. There is a dead and decayed stub of a secondary leader on the eastern side. It also has a co-dominant stem with included bark at approximately 2.5 m above ground at the base of two vertical leaders. Tree 2 is closest to the respondent’s property. It is about 70-80 cm dbh and also has a basal wound on the lower or western side. The wounds on trees 1 and 2 appear to be degraded wood but further investigations would be required to determine if the trees are decayed.

11 Tree 3 is the largest and has a dbh of over 2 m. It forms 3 main leaders at about 1.5 m above ground and the central of these again forms 3 leaders. It is highly likely that this tree was lopped in the past. There is a decayed leader of approximately 25 cm diameter at 1.5 m and the base of the tree is hollow. There is a small open cavity at the base of the tree.

12 The north-eastern canopies of trees 2 and 3 have been lopped in the more recent past by both the applicant and probably the local electricity distribution authority as a power line runs beside these trees. That power line is now an aerial bundled cable. The trees partly overhang a public footpath and a stone drain.

13 Turning to the specific concerns of the applicant, under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

14 With respect to the blocking of sewer pipes and drains, the only pipes mentioned as being damaged were those of other neighbours, properties not party to this application. The sewer pipes on those properties are thought to have been replaced with PVC. The applicant did not mention any problems with the sewer pipes on his property.

15 With respect to the footpaths and joints, a concrete slab section of the footpath that runs along the southern side of the house located at the southern end of the front verandah has rotated about 12 mm; i.e. it has dropped about 12 mm on the lower side and lifted on the opposite side. There is a gap between the slab and the verandah that the applicant has partially filled with some material to keep water out. The applicant contends that the movement is due to root growth but no roots were seen nor shown to the Court by the applicant. The slab is on the top of a slope and on sandy soil. There was evidence of a gap between the base of the slab and the surface of the soil. Similarly, a corner section of pathway nearest the trees was displaced but this is likely to have been caused by the washing away of sand from beneath the slab.

16 The applicant is concerned about roots in his property. Only 2 woody roots were observed above ground level and these were within 2-3 metres of the trees. In Robson v Leischke [2008] LEC 152 (1 May 2008) at 166, Preston CJ states that damage to the surface of the land, such as raising a mound of earth, without consequential damage to other property, is not covered by the Act.

17 The gutters were rusted in a couple of locations and the applicant had opened up the downpipes. Mr Tunsted stated that the house was approximately 30 years old and that he believed that the gutters had been replaced once during that time and were at least more than 5 years old. In Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This applies in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. It is also expected that guttering will not last indefinitely.

18 With respect to the concerns raised by the applicant about leaves on the lawn, roof and verandah, the Trees (Disputes Between Neighbours) Act 2006 is restricted to actual or potential actual damage being caused to property or injury to persons. In Robson v Leischke [2008] LEC 152 (1 May 2008) at 56, Preston CJ states that mere encroachment is not damage, in 169 that damage must be proved and in 171 annoyance or discomfort to an applicant by such things as leaves and flowers blown onto their property from their neighbour’s land is not “damage to property on land’ within s7 of this Act unless they also cause damage to property on the neighbour’s land.

19 With respect to the likely future damage, the applicant obtained a report from a structural engineer, Mr Colin Jenkins. In that report, Mr Jenkins states, “the tree is not a serious threat to the foundations of the home as such, mainly because the sandstone and sand are not prone to moisture content changes, and the house proper is too heavy for growing roots to lift”. No roots or cracks in the brickwork at the rear of the house were seen during the on-site hearing.

20 Mr Jenkins goes on to state that “the roots will and are in fact causing problems with paving, retaining walls etc; they have also impacted on older drainage lines of the mortar joint type” and so on. These statements are unsubstantiated. Photographs in the report do not show any roots damaging either paving, walls or drains. The report also refers to decay in the trees and photographs are included, however, Mr Jenkins is not an arborist and his recommendations with respect to the trees are not within his area of expertise.

21 The applicant showed the Court a crack in tiles on the front verandah adjacent to the front brick wall of the house. He stated that roots have caused the crack but no roots were seen nor shown to the Court by the applicant.

22 Under s 12 of the Act, the Court must consider a number of matters. The relevant clauses in this case are:

(a) The trees are substantially located on the respondent’s property.

(c) The property on which the trees are growing is listed in the Local Environment Plan as a heritage item as it is the site of a brewery that operated between the late 1800s and 1915. The brewery was then converted to two residences and retained features of the original building. The heritage officer for the council advised the respondent that all items on the block, including the trees, were included in the listing. The applicant’s advice was that the heritage listing did not include the trees. The property is not listed with the NSW Heritage Office but can be viewed on their web site. However, the property clearly has local historical importance. The size of tree 3 is such that it is likely to have been one of the early plantings. A photograph, provided by the respondent, of the brewery in the late 1800s or early 1900’s, shows what is likely to be that tree.
(d) The respondent stated that the trees are used as habitat by possums and native birds and so make a contribution to local biodiversity.
(e) The trees make a significant contribution to the scenic value of the land on which they are growing and to the locality.
(f) Due to the size of the trees, their position in the landscape and their historical significance they have intrinsic value to public amenity.
(g) The trees are growing on the top of steep bank of sandy soil and are likely to play an important role in stabilising the soil.
(h)&(i) The lopping of the trees in the past and disturbances to the base of the trees over their long lives are likely to have contributed to the decay and degradation of the base of the trees.

23 After viewing the trees and considering the alleged present and future damage to property, there is no evidence that the trees have caused, are causing or will, in the near future, cause damage to the applicants property that is of sufficient significance to warrant the making of an order to remove or interfere with the trees.

24 Despite the presence of decay in one of the three trees and the possibility of decay in the other two, there is no evidence to suggest that this will cause the imminent failure of the trees and cause injury to persons or damage to property.

25 As none of the matters under s 10(2) of the Act have been substantially satisfied, the orders of the Court are that the application to remove the trees is dismissed.

___________________

J Fakes
Acting Commissioner of the Court