Williams v Morris

[2007] NSWLEC 848

Land and Environment Court

of New South Wales

CITATION:	Williams v Morris [2007] NSWLEC 848
PARTIES:	APPLICANT Michael and Judith Williams RESPONDENT Tim and Anne Morris
FILE NUMBER(S):	20962 of 2007
CORAM:	Tuor C - Thyer AC
KEY ISSUES:	Trees (Neighbours) :- Removal of tree, damage to property, compensation
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	11/12/2007
EX TEMPORE JUDGMENT DATE:	11 December 2007
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C with Thyer AC

11 December 2007

20962 of 2007 Williams v Morris

JUDGMENT

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 by Michael and Judith Williams of 7 Nanowie Avenue Wahroonga concerning one Sydney Red Gum (Angophora costata) tree (the tree) located on 5 Nanowie Avenue Wahroonga owned by Tim and Anne Morris.

2 The extemporaneous decision was given on site on 11 December 2007 and the judgment reflects the findings and the background documentation provided as part of the proceedings.

3 The Williams’ application to the Court is for compensation, and prevention of further damage and risk to people and belongings.

4 Mr and Mrs Williams claim that the tree has damaged existing concrete garden steps, and a garage that has been removed.

5 Mr and Mrs Williams also claim that there are a number of dead branches in the tree.

6 Mr and Mrs Morris oppose removal of the tree. Their written submission refers to their discussions with an arborist commissioned in 2005 by The Williams to advise in relation to the health of the tree, stating that the arborist considered the tree to be healthy and safe.

7 We observed the tree and came to the following conclusions with regard to it. The tree is in the order of 25 m in height with a crown spread of approximately 20 m and it has two co-dominant trunks of approximately 0.8 m diameter arising from within 1 m of the ground. The tree is mature, has a well balanced crown and normal foliage cover. The tree appears to be in good health with no structural problems visible in the trunk or the live branches. There are a few dead branches visible in the canopy. There is no evidence of any live branch failure. This is a grand tree providing a magnificent landscape feature to the owner’s property and to the streetscape in general. It’s location across the road from a bushland reserve extends the habitat and environmental benefits of that reserve.

8 The Trees Officer of Hornsby Council who was present at the hearing advised that his section had assessed the tree when the Williams applied to do their building works, and found the tree to be ‘significant’.

9 The old garage has been removed and replaced, so it was not possible to inspect that structure. We are advised that the garage was largely below ground level and that the single brick walls had failed both adjacent the tree and at the rear of the garage. We are also advised that no roots of the tree were found in contact with the garage walls when it was demolished.

10 We are not satisfied that damage to the old garage was caused by the tree, nor that the old garage was built to a satisfactory standard.

11 A new set of reinforced concrete stairs has been constructed between the old stairs and the new garage. We are advised that only one root from the tree was found during construction of the new stairs, that being a 100 mm diameter root under the new landing near the top of the old stairs. There has been no evidence provided that any tree roots are likely to damage the new structures in the near future.

12 We accept that the tree may have played some part in the movement of the old steps, but we consider that ground subsidence as the garage walls failed may have also been a cause.

13 We are therefore not satisfied that the Court should order any interference with the tree, nor that any compensation be paid.

14 We note however that the parties have come to an agreement regarding the matters in contention, and therefore the application is dismissed noting the agreement of the parties as follows:

1) Mr & Mrs Williams shall have the old steps removed and landscaping installed in their place. That landscaping shall be soft landscaping with dry-packed rock similar to the landscaping in front of the tree on 5 Nanowie Avenue, with a rock retaining wall approximately 0.3 m high at the front boundary. The landscape shall be constructed so that any pressure from growth of the tree trunk and roots is not transferred to the new steps or garage;
2) Mr & Mrs Williams shall have the landscaping work completed by 31 March 2008, at their cost;
3) Within 30 days of being given a copy of the receipt for the completed landscaping, Mr & Mrs Morris shall pay $1,793 to Mr & Mrs Williams, that being their contribution to the step removal and landscaping;
4) Mr & Mrs Morris shall have the deadwood pruned out of the tree by 31 March 2008 at their own cost. The deadwooding shall be all deadwood with a diameter greater than 30 mm, through the whole of the crown. The work shall be done by an arborist holding AQF Level 3 qualifications and suitable insurances. The work shall be supervised by an arborist having AQF Level 5 qualifications. All work shall comply with AS 4373 - 2007 Australian Standard for Pruning of amenity trees;
5) The arborist shall be given access to carry out that part of the work that must be done on Mr and Mrs Williams’ property. The access shall be on reasonable notice at a reasonable time, and the Williams are entitled to supervise that access;
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A Tuor
Commissioner of the Court

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Peter Thyer
Acting Commissioner of the Court