Wedes v Fong

[2019] NSWLEC 1183

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wedes v Fong [2019] NSWLEC 1183
Hearing dates:	21 February 2019
Date of orders:	21 February 2019
Decision date:	21 February 2019
Jurisdiction:	Class 2
Before:	Douglas AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS): apprehension of damage to property, and of injury
Legislation Cited:	Environmental Planning and Assessment Act 1979 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedures Rules 2005
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Ward v Glasson & anor [2012] NSWLEC 1350 Yang v Scerri [2007] NSWLEC 592
Category:	Principal judgment
Parties:	Patrick Wedes (First Applicant) Deborah Wedes (Second Applicant) JK Fong (First Respondent) KK Fong (Second Respondent)
Representation:	P and D Wedes, litigants in person (Applicants) J and K Fong, litigants in person (Respondents)
File Number(s):	2018/327125
Publication restriction:	No

Judgment

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

1. COMMISSIONER: Mr and Mrs Wedes of Connells Point submitted an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) seeking the removal and stump grinding of a Glochidion ferdinandi (Cheese tree) (the tree) located in the rear yard of the adjacent neighbouring property. It is located near their shared boundary, which runs from south-east to north-west.

2. The applicants contend that the tree is causing damage to their retaining wall, potentially leading to sudden failure, and that perceived weaknesses in the tree’s trunk, and overhanging branches, pose a serious risk of injury. They claim that the trunk is leaning and bending their Colourbond boundary fence (the fence), and also note engaging plumbers to clear roots from their sewer pipe. The Wedes’ cite the issue of ongoing maintenance required to clean up leaves and sticks continuously dropping onto their hard surfaces below the tree, along with having to clear gutters, downpipes and tile roof valleys of dead leaves. They also mention the $1100 cost for metal gutter guard for the affected roof lines, and a copy of the receipt for this is included in the application.

3. Mr and Mrs Fong resist tree removal, but have granted permission for pruning, subject to liaison with them with respect to specifications and quality of the works, and to Council consent.

The hearing

4. The hearing commenced on-site with both parties in the respondents’ rear yard for an inspection of the tree. It is about 10 metres tall with a canopy spread of about 12 metres, though its shape is distorted following heavy pruning over the applicants’ yard. It has two main trunks. In a report by arborist Joshua Baber, of Joshua’s Tree Service, the tree is said to be 40 – 50 years old, thus likely planted after the construction of the adjacent retaining wall, which was built just inside the respondents’ rear yard, about 57 years ago. The tree appears to be healthy and structurally sound. The applicants’ noted build-up of soil and mulch around the tree’s lower trunk and suggested that this represented, or contributed to, runoff problems into their yard. The build-up was quite minor, however, appearing to be 100-200mm in depth, and is more likely to be beneficial to water infiltration and drainage, and may slow runoff. It is the only large tree in the respondents’ backyard.

5. Viewed from the applicants’ rear yard, the tree appears taller as the land slopes moderately steeply across the properties from the north-east to south-west, and the Fong’s soil level is about one metre above that of the Wedes’. The lopsided canopy following pruning of overhanging branches is starkly apparent. Mr Fong noted that this pruning was without his consent.

6. Currently there is one main branch overhanging the boundary by about four metres and smaller branches by around two metres. These branches are generally quite ascending, and, viewed from some metres away, appear to be healthy and structurally sound. They are well clear of the Wedes’ house, and barely overhang the roof. There is some minor deadwood in the upper canopy near the boundary.

7. The applicants submitted that overhanging limbs break off in bad weather. The Court inspected a branch, about three metres long and 100mm in diameter where it tore, that had fallen into the applicants’ yard. Mr and Mrs Wedes also submitted that they have removed many broken branches each year for the last ten years. There are, however, very few branch tears apparent on the applicants’ side of the tree, and it is rare for trees of this species to have either weak or poorly attached branches.

8. Past pruning of the tree canopy extending over the common boundary has been excessive. Heavy pruning causes tree stress, and a common response is poorly attached epicormic foliage regrowth. Ironically, this likely accounts for the reported high frequency of branch breakage, and this propensity could be addressed with improved pruning specifications and practices. There is no sign of branch shedding on the Fong’s side of the canopy, where pruning has been minimal.

Jurisdictional requirements

9. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

10. The Court is obliged to consider a number of matters pursuant to s 10 of the Act.

11. As required by s 10(1), I am satisfied that there has been an attempt by the applicant to reach agreement with the owner of the land on which the tree is situated. Mr Wedes’ application included reference to correspondence and offers to the Fong’s proposing tree removal, along with the respondents’ responses, which noted a preference for pruning.

12. The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned 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.

13. 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.

Retaining wall and fence damage

14. An engineering report dated 26 July, 2002, by Mr David Smee of Cardno MBK was provided by the applicant. It noted the wall was “some 8 metres long and 0.9 metres high” and was, in 2002, approximately 40 years old. At point 2.2, paragraph 3, with respect to the raised soil level behind the wall, and to the presence of the tree, he wrote, “In spite of these additional loads the wall is performing very well and indeed much better than most such brick retaining walls.” At para 4, he adds, “If a metal fence is erected with posts immediately behind this wall, the wall in my opinion would be structurally adequate”, and at para 5, Mr Smee advises that “it would be prudent to remove” the tree based on its location.

15. Mr Peter Boutros, Principal Engineer of Structa Consulting Engineers, also provided a report on the wall, dated 21 January, 2019. At para 2 of his Discussion and Recommendation, he notes that “adjacent to the tree the wall is showing signs of being overloaded with cracking and flaking of the paint”, and that “the crack to the concrete upturn has been caused by the roots of the neighbouring tree.”

16. In para 3 he adds,

“Due to the construction of the retaining wall it is not able to handle the additional load caused by the pressure exerted by the tree. As the wall begins to tilt and crack due to the pressure from the neighbouring tree, the pressure on the wall due to the soil load increase substantially as the angle of tilt increases. Further as the wall is unreinforced (no steel reinforcement) and on brick footings, any further movement of the wall could result in sudden collapse.”

17. Inspection of the wall does not support this view, however, and evidence of current damage is sparse. Near the tree, there is a thin crack emanating from the front corner, across the top edge and down the face for about 20cm. It appeared little more than hairline, less than 1mm wide. Viewed from the south-eastern end along the top front edge of the wall, some bowing near the tree is evident, but it is very slight, and viewed from elsewhere in the yard, no change is apparent. The wall remains vertical or near vertical along its length. No causal relationship between wall cracking and flaking of paint has been established, and the flaking may relate to topography and water pooling, given that there is a surface drain located close nearby.

18. Mr Wedes installed an ‘upturn’ to the rear of the top of the wall, for its entire length. It is one brick high and rendered along its top and front faces. Though Mr Boutros opined that the crack in this upturn is “caused by the roots of the neighbouring tree”, no evidence, such as images of excavation results, was provided to support this view. The cracking may be due to a lack of expansion joints along the length of the upturn, and/or pressure exerted by copious runoff from upslope properties during heavy rain, which was highlighted by Mr Wedes. It is, again, minor damage.

19. The tone of Mr Boutros’ report suggests that further cracking and tilting is imminent, and his comment that “any further movement of the wall could result in sudden collapse” is evocative of a dynamic, dangerous situation emerging in the near future.

20. Again, the evidence does not appear to support this view. The wall still appears straight and vertical, and entirely functional, the cracks are very limited, and I saw no sign of separation. The wall is now over 65 years old, and Mr Smee’s note from 2002 that the wall was “performing very well and indeed much better than most such brick retaining walls” still appears pertinent. Though I have no engineering expertise, it is difficult to reconcile the current condition of the wall with any marked increase in damage in the near future.

21. Mr Baber provided a copy of AQF level 5 arborist qualifications, and noted that he had read, and agreed to comply with the Uniform Civil Procedures Rules 2005. On page five of his report he notes that the tree has a Useful Life Expectancy (ULE) of 15-40 years, and that it provides high amenity value to the property owners. On page six, Mr Baber suggests that, being mature, the tree has “some potential for future growth, but will not dramatically increase in size or volume.” With the arboricultural expertise I bring to the Court, I would concur with this opinion, given that tree growth rates normally reduce from mid through to late maturity, and into senescence.

22. The tree has been growing in close proximity to the wall for 40-50 years. Characteristics of the bark suggest stable, relatively slow growth in girth, and this is likely to reduce further as the tree ages. The configuration and location of major roots has been established since early in the tree’s life. Having interacted with the wall for all these years without damage, and with its growth rate likely gradually slowing, the situation is unlikely to change much in the near future.

23. One tree trunk is pressing against the top of the fence, and causing minor bowing. There is, however, no sign of crushing or distortion of any fence component, it remains fully functional, and given the tree’s slow growth rate, any marked change, in the near future, is unlikely.

24. Regardless how minor the damage, however, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 indicates that even relatively minor damage engages the Court's jurisdiction, provided that the nexus between the damage and tree causation has been displayed. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, where 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...". In the absence of other evidence, at its best, the proximity of the upturn and wall cracks to the tree, and the bowing of the fence, is deemed to satisfy this requirement, and the jurisdiction of the Act is therefore engaged.

Sewer pipe damage

25. Mr Wedes also noted damage to sewer pipes as a result of tree roots, and an invoice was provided for “jet blasting to sewer main.” Mr Wedes also submitted an undated letter from Mr Ben Horton, of the The Water Whisperer Pty Ltd, which “is a summary of works carried out over the last six months.” As well as noting that “The condition of the pipework located within your backyard and the connection into the boards (sic) mains is deteriorating with each visit”, he listed the identified damage as “tree root penetration into your sub soil sewer drainage, damages to the colorbond fencing”, and, “partial collapse of a retaining wall.”

26. No evidence was provided, however, about the location of the tree root damage, nor was there identification of the species of plant to which the roots belonged. In previous cases involving claims for repairs to terracotta sewer pipes, in determining expense sharing, the Court has taken into account that: such sewer connections are usually at least 35 or more years old, some pre-existing jointing defect or crack is likely prior to root penetration, and that such pipes have a useable lifespan and will eventually need replacement. In this context, Mr Wedes did not pursue the plumbing issue.

Tile replacement and dropping debris

27. To support their claim for removal of the tree, the Wedes noted the issue of ongoing maintenance required to clean up leaves and sticks continuously dropping onto their hard surfaces below the tree, along with having to clear gutters, downpipes and tile roof valleys of dead leaves.

28. In Robson v Leischke [2008] NSWLEC 152 at [171], with respect to “annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind”, Preston CJ states that this is not “damage to property on the land” within s 7 of the Act, and that “leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.”

29. The issue of the maintenance impost from falling sticks and leaves is addressed in Barker v Kyriakides [2007] NSWLEC 292, which, at [20], establishes the tree dispute principle:

“…

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

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.”

30. In previous cases, the installation of gutter guard has also been recommended in the context of this grounds maintenance expectation, and thus none of the submissions with respect to leaves and sticks, on the ground or in gutters, invokes the Act’s jurisdiction.

Risk of Injury

31. There are no obvious characteristics of this tree that cause concern with respect to risk of Injury. There is no apparent sign of structural weakness in the trunks, nor indication of faults at branch junctions. The Wedes’ claim of a history of branch failures of overhanging branches, is inconsistent with the canopy stability obvious on the Fong’s side, and almost certainly related to the development of poorly attached branches, as a result of excessive pruning.

32. The branches currently overhanging are relatively small, and the Wedes submitted that overhanging limbs break off in bad weather, when such occurrences are more common, and occupation of the zone around the tree by people or animals is far less likely.

33. This adduced evidence leads to a conclusion that the tree poses a low and acceptable risk, and, therefore, the claim with respect to risk of injury is resolved and dismissed.

Discretionary matters – s 12

34. In making an order, the Court considers relevant matters in s 12 of the Act.

• The base of the tree is located in the respondent's property but a small part of a trunk may be growing across the boundary (s 12(a));

• Pruning or removal of the tree would require consent from Council under the Environmental Planning and Assessment Act 1979 (s 12(b)).

• With respect to s 12(b2), past pruning of the tree canopy extending over the common boundary has been excessive, and the poorly attached stress induced foliage regrowth that often results from such heavy pruning may ironically account for the broken branches found by the applicants. Ideally, subsequent pruning should be more selective, it should be completed by an AQF level 3 qualified arborist, and heavy pruning of overhanging branches should be avoided.

• The trees contribute to protection from the sun, and from wind, to landscaping, to the amenity of the respondents' property, and to the immediate locality. The trees are visible from the street, and from neighbouring houses and thus have intrinsic value to public amenity. Mr Baber noted in a photograph caption at the top of page five of his report, that large trees had been removed from an adjacent neighbouring property, and, based on the photo, also from the far north-eastern side of the Fong’s property. The local amenity value of the tree is enhanced by the removal of the other trees (s 12(b3)(e)(f)).

• Being a species native to the region, its flowers and fruit, trunks and branches could be expected to provide food and or shelter for local fauna and thus would contribute to local biodiversity (s 12(d)).

• Given the slope of the land of both properties, and the different levels on which their houses and yards are located, the tree is likely to be providing benefit to soil stability, and, particularly, to absorbing water and reducing run off (s 12(g)).

Conclusion

35. I have examined the mature Cheese tree and have reached the following conclusions:

1. The cracking in the wall, in the brick upturn, and the bowing of the fence are all considered minor damage, but I have accepted that the tree is a cause of this damage, and the jurisdiction of the Act is engaged.

2. Mr Baber’s report was straightforward and balanced, and I concur that the tree has “some potential for future growth, but will not dramatically increase in size.” In this context, I am unpersuaded by some of Mr Boutros’ arguments in the Discussion and Recommendation of his report. He suggests that the retaining wall it is not able to handle the additional load caused by the pressure exerted by the tree, but the current intact and functional condition of the 67 year old retaining wall attests otherwise.

3. In para 3, Mr Boutros raises the spectre of the wall tilting, increasingly, as it cracks further, and of any further movement of the wall resulting in sudden collapse. He doesn’t, however, consign a time scale to this dramatic prediction, and based on the evidence adduced, I am not convinced that this is likely in the next 12 months, if at all. Action with respect to damage in the near future is thus resolved and dismissed.

4. The issue of falling debris on the outdoor hard surfaces, and roofs, downpipes and gutters is addressed and resolved with the guidance of the tree dispute principle established in Barker v Kyriakides [2007] NSWLEC 292.

5. With respect to risk of injury, the tree poses a low and acceptable risk, and, therefore, no be action is available under s 7 of the Act.

1. As in Ward v Glasson & anor [2012] NSWLEC 1350, the contributions and value provided by the tree, as displayed through consideration of s 12, outweigh the concerns of the applicant with respect to the relatively minor damage caused by the tree.

Orders

36. The application is dismissed.

………………………….

J Douglas

Acting Commissioner of the Court

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Decision last updated: 23 April 2019