Wilks v Warne

[2008] NSWLEC 1199

Land and Environment Court

of New South Wales

CITATION:

Wilks v Warne [2008] NSWLEC 1199
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Gordon Wilks

RESPONDENT
Olga Warne

FILE NUMBER(S):

20152 of 2008

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Removal of tree, risk of injury to people, property damage

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

07/05/2008

EX TEMPORE JUDGMENT DATE:

7 May 2008

LEGAL REPRESENTATIVES:

APPLICANT
Gordon Wilks, litigant in person

RESPONDENT
Olga Warne, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

7 May 2008

20152 of 2008 Gordon Wilks v Olga Warne

JUDGMENT

The decision was given at the hearing on 7 May 2008.
This written judgment reflects the background information and the findings.

1 ACTING COMMISSIONER: Gordon Wilks and Olga Warne are elderly neighbours living on the rocky hillside above Curl Curl beach. Mr Wilks’ house was built about 1950. He and his wife moved there in 1971 and built a carport above the old concrete driveway in 1991. The carport has a half-height single brick wall on its southern side, about 100 mm on Mr Wilks’ side of the common boundary with Mrs Warne.

2 There are two cracks across the old concrete driveway that Mr Wilks says may have been there in 1971 and probably were there in 1991. One of the cracks is in line with a crack up the brick wall.

3 There is a Paperbark tree growing in Mrs Warne’s front yard, about 2 m from the brick wall, in line with the crack in Mr Wilks’ wall and driveway. The tree was not there when the carport was built but is now about 12 m tall with a trunk about 300 mm thick.

4 In response to Mr Wilks’ concerns, Mrs Warne had a nurseryman dig a trench beside the wall in May 2007. The man removed two roots of the paperbark tree each about 750 mm long and 60 – 70 mm thick. He told Mr Wilks that the roots were the cause of the problem.

5 However, the crack in the wall grew wider after the roots had been removed. Mr Wilks had an arborist inspect the situation in July 2007. The arborist’s report concluded that the Paperbark tree was causing the cracks in the carport wall, would continue to do so even if its roots were pruned, and that the tree when mature would not be suitable for the location.

6 In response to Mr Wilks’ ongoing concerns, Mrs Warne made an application to Warringah Council regarding the tree. That application asked for assessment of the tree, it was not an application for removal. The Council determination was that the “tree was in good condition at the time of inspection.” Mrs Warne took the Council determination to be a refusal, and has not removed the tree.

7 Mr Wilks seeks removal of the tree. He is not seeking compensation for damage to the wall or cost of the arborist’s report in this application.

8 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that there is a dispute, and 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 ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?

9 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?

The issues

10 The issues in this case are:

• Is there a dispute ?
• Did this tree cause the damage to Mr Wilks' carport wall ?
• Is the tree likely to cause damage to Mr Wilks' carport wall in the near future ?
• Is the tree likely to cause injury ?

Is there a dispute ?

11 Mrs Warne stated at the hearing that she would be willing to cut the paperbark tree down if it is necessary to do so, and that she does not want to cause damage to Mr Wilks’ property.

12 Mrs Warne had made an application to Warringah Council, and presented the Council’s determination at the hearing. As noted above, the application was for assessment of the tree not removal, and damage to Mr Wilks’ wall was not mentioned in the application. I understood that if Council had permitted removal of the tree then Mrs Warne was willing to remove it.

13 Therefore I consider that there is no dispute between the neighbours about willingness to remove the tree, and it is my opinion that the application should be dismissed on that basis.

14 However, I have considered the evidence of damage and likelihood of injury in order to determine if the matter is serious enough that the Court should order some intervention with the tree while the application is before me.

Did this tree cause the damage to Mr Wilks' carport wall ?

15 I accept Mr Wilks’ claim that the nurseryman told him the tree’s roots were the cause of the problem. However, I have not been provided with any explanation of why the crack in the wall is in line with the old crack across the carport floor, and why the crack in the wall grew wider after the tree roots were removed. In the absence of those explanations I cannot find it likely that the tree caused the damage, or is the major cause of the damage.

Is the tree likely to cause damage to Mr Wilks' carport wall in the near future ?

16 As the tree roots were removed less than a year ago, I find it unlikely that new roots will damage the wall in the near future.

17 Mr Wilks raised the concern that the tree is growing in shallow soil, and is likely to fall over. In this regard I was shown outcropping and excavated rock nearby but was not given any actual evidence that there was a shallow rock shelf under the tree or that there were no crevices in which the tree’s roots might have a hold. On the contrary I observed that this and other trees in Mrs Warne’s front yard were growing well, indicating that they had adequate soil conditions. In the absence of evidence that the tree is unstable in the ground, I do not find it likely that the tree will cause damage in the near future.

Is the tree likely to cause injury ?

18 The Paperbark tree is described by the arborist Mr Bradshaw to be a semi-mature tree in excellent condition. Such a tree is unlikely to cause injury in the foreseeable future except by falling over. As no evidence has been provided that the tree has inadequate roots or soil conditions, I do not find it likely that the tree will cause injury.

Conclusion

19 I am not satisfied with the evidence that the tree caused the crack in Mr Wilks’ carport wall. Also, on the evidence provided I do not find it likely that the tree is now causing damage to Mr Wilks' wall, or that it is likely to cause either damage to his property in the near future or injury to any person. Therefore I find that there is no reason for me to order removal or interference with the tree, and as there is no dispute over the parties’ willingness to remove the tree the application should be dismissed. In so concluding, however, I also the agreement of the parties as follows:

1. Mrs Warne shall make a new application to Warringah Council for removal of the tree. She shall pay the application fee, and include a copy of Mr Bradshaw’s arborist report of July 2007, a copy of the determination of the Court, and a statement of the findings of the nurseryman who removed the roots in May 2007;
2. If the Council requires additional evidence of the root damage, the parties will discuss their next steps;
3. If the Council gives permission for removal, the tree will be removed within one month of the date of approval, at half costs to each party;
4. Mr Wilks shall organise the work and choose the contractor after showing Mrs Warne the quotes;
5. Mr Wilks shall pay the contractor for the work, and Mrs Warne shall pay him half the cost within one month of being given a receipt for the completed works;
6. The work shall be done by a contractor with suitable insurances.

Orders

20 Although I have recorded the agreement of the parties, the formal orders of the Court must be that the application is dismissed.

___________________

Peter Thyer
Acting Commissioner of the Court

11/06/2008	-	For clarity, change of location of notation of agreement between the parties. - Paragraph(s) 19 & 20
11/06/2008	-	Correction to catchwords - Paragraph(s) Cover sheet