Weerasekera v Sainty
[2009] NSWLEC 1417
•14 December 2009
Land and Environment Court
of New South Wales
CITATION: Weerasekera v Sainty [2009] NSWLEC 1417 PARTIES: APPLICANT
RESPONDENT
Vajira Weerasekera
P SaintyFILE NUMBER(S): 20644 of 2009 CORAM: Fakes C KEY ISSUES: TREES (NEIGHBOURS) :- Removal of Trees, Damage to property, Risk of injury to persons LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Yang v Scerri [2007] NSWLEC 592 DATES OF HEARING: 14 December 2009 EX TEMPORE JUDGMENT DATE: 14 December 2009 LEGAL REPRESENTATIVES: APPLICANT
Mr V Weerasekra (litigant in person)RESPONDENT
Ms T Buckley (litigant in person)
for Ms Sainty
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESFakes C
14 December 2009
20644 of 2009 Vajira Weerasekera v P Sainty
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.JUDGMENT
1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Vajira Weerasekera of 31 Clissold Road Wahroonga against the owner of four trees growing along the rear side northern boundary of 29 Clissold Road. The owner of that property is Miss P Sainty. Miss Sainty was represented by her niece, Ms Trisha Buckley.
2 The trees are identified and numbered from west to east as 1 – Liquidambar styraciflua (Liquidambar), 2 – Pittosporum undulatum (Native Daphne), 3 – Eucalyptus scoparia (Wallangarra White Gum) and 4 – Syncarpia glomulifera (Turpentine).
3 The applicant is seeking the removal of the trees as he contends that roots from trees 1-3 have caused damage to the ground floor slab of his house and that roots from tree 4 may cause damage to the new extension.
4 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of 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. That said, the tests must be applied to each tree.
5 The trees were inspected from both properties, as were relevant areas of the applicant’s house.
6 Tree 1 is a mature Liquidambar in average health and condition. It is approximately 1.3 m from the outer edge of the trunk to the applicant’s house. At some stage, branches on the northern side of the tree (that is, the side closest to the applicant’s property) have been removed. Tree 2 is a mature Pittosporum undulatum in average health and condition. It too had been pruned on its northern side, presumably to facilitate renovations and building works on the applicant’s property.
7 Tree 3 is an over-mature Eucalyptus scoparia that is in decline. It is on a slight lean to the south. Tree 4 is a mature Turpentine in average condition. The soil level on the northern side of this tree has been raised at some stage to create a level area at the rear of the applicant’s house. This tree is now approximately 1.3 m from the south-eastern corner of the recent extension to the applicant’s house.
8 The damage alleged to have been caused by trees 1 – 3 is a crack in the slab of a ground floor room of the applicant’s house. When the slab was lifted for repair as part of the renovations and extensions, an extensive network of roots was found. According to the applicant and the photographs included in the application, the majority of the roots were from the eucalypt. There was no cracking to the wall of the house.
9 During the renovations and building works, the exposed roots were removed with an excavator.
10 As part of the building works, the applicant had a plumber replace the terra cotta sewer pipes with PVC as the old pipes had been blocked and damaged by roots. The sewer is located between the trees and the southern side of the house.
11 The applicant stated that the replacement of the pipes involved trenching to what he thought was over a metre in depth. He stated that only two moderately sized roots from the Liquidambar were found and then cut.
12 Apart from viewing the trees, the site conditions and the evidence provided by the applicant, the Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are:
- (a) The trees are wholly located on the respondent’s property.
(d) The trees make a contribution to local biodiversity and to the ecosystem. Two Tawny Frogmouths were in the Pittosporum at the time of the inspection and are commonly seen within both the respondent’s and the applicant’s gardens. The Turpentine is locally indigenous and is likely to be a remnant of the original vegetation.
(e) The trees contribute to the scenic value of the land on which they are growing.
(f) The trees form part of the canopy of the immediate area and thus contribute to the landscape character of the neighbourhood. They have value to public amenity.
(g) With respect to impacts on the water table, Miss Sainty stated that the previous owners of her property had planted trees to use up ground water seeping from a spring on the applicant’s property. This was at a time before any house existed on that block. She stated that she knew 31 Clissold Road to be what she described as a “wet block”.
(h)(ii) The applicant engaged an arborist, Mr Russell Kingdom, to comment on the roots that were exposed when the slab was removed. In a brief letter, Mr Kingdom expressed surprise at the extent of the roots but did not state the species involved. In the renovation of the existing ground floor and the construction of the addition, the applicant had the roots removed. In the process of replacing the sewer, further root pruning occurred. The new slab has now been poured and the ground floor is tiled.
13 Returning to s 10(2) and the evidence with respect to each tree. There is no conclusive evidence from either the photographs or explicitly in Mr Kingdom’s report that either the Liquidambar or the Pittosporum had caused the damage to the slab. The statements made by the applicant at the on-site hearing suggest that only two moderately sized roots of the Liquidambar were cut when the sewer was replaced. Therefore I cannot conclude that any of the tests in s 10(2) are adequately satisfied with respect to trees 1 and 2, that is, the Liquidambar and the Pittosporum and therefore I am unable to order any intervention with these trees.
14 The Orders of the Court with respect to these trees is that the application to remove them is dismissed.
15 The photographic and oral evidence from the applicant suggests that the majority of the roots were from Tree 3 - the Eucalyptus scoparia and therefore this tree is likely to have caused the damage to the applicant’s property. Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened with respect to this tree. The extent of root loss, the age and size of the tree and its lean to the south have led me to conclude that this tree should be removed as it now poses a risk of injury to persons.
16 With respect to the Turpentine (tree 4), there is no evidence that this tree has caused damage to the slab or is likely to in the near future. The extent of fill over the northern side of this tree’s root zone will be an impediment to root growth. Therefore as no tests under s 10(2) are met, the application to remove this tree is dismissed.
17 In conclusion, the Orders of the Court with respect to this application to remove four trees are as follows.
1. The application to remove tree 1 – Liquidambar styraciflua, tree 2 – Pittosporum undulatum, tree 4 – Syncarpia glomulifera is dismissed.
- 2. The application to remove tree 3 – Eucalyptus scoparia is upheld.
3. The respondent is to engage and pay for an AQF level 3 arborist with the necessary insurances to remove the tree to ground level. The stump is to be poisoned.
4. The work is to be carried out in accordance with the WorkCover Code of Practice for the Amenity Tree Industry.
5. The work is to be completed within 3 months of the date of these orders.
J Fakes
Commissioner of the Court
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