Woodward v Fenner

[2019] NSWLEC 1285

Land and Environment Court

New South Wales

Medium Neutral Citation:	Woodward v Fenner [2019] NSWLEC 1285
Hearing dates:	19 June 2019
Date of orders:	25 June 2019
Decision date:	25 June 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)   The application for compensation is refused. (2)   The application to remove the tree is granted. (3)   Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove their paperbark tree to no more than 50 cm above ground level. The work must be carried out in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’. (4)   On reasonable notice, the applicant is to allow any access required to complete the work ordered above during reasonable hours of the day.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – sewer pipe – paving – compensation – respondents had applied to remove tree
Legislation Cited:	Trees (Disputes Between Neighbours Act) 2006 (NSW)
Texts Cited:	Safe Work Australia 2016 ‘Guide to managing risks of tree trimming and removal work’
Category:	Principal judgment
Parties:	Michele Woodward (Applicant) Bradley Fenner (First Respondent) Frances Fenner (Second Respondent)
Representation:	B Fenner and F Fenner, litigants in person (Respondents)   Solicitors P Maluga, PM Legal Services & Consultancy (Applicant)
File Number(s):	2019/53528
Publication restriction:	No

Judgment

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

The application

1. Michele Woodward (‘the applicant’) has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for the removal of a neighbouring paperbark tree (‘the tree’) and compensation for repairs carried out to her sewer pipe and repairs not yet carried out to paving at the back of her Lindfield dwelling.

2. Frances and Bradley Fenner (‘the respondents’) like their tree and would prefer it remains. They do not object to its removal if it is causing damage, but want to be satisfied firstly that the damage is a result of their tree.

3. In determining this application, I must be satisfied that Mrs Woodward has made reasonable effort to reach agreement with the Fenners (s 10(1) of the Trees Act), and that the tree has caused, is causing, or is likely in the near future to cause, damage to her property, or is likely to cause injury to a person (s 10(2)). Before making any orders I must consider matters set out at s 12 of the Trees Act.

History

4. A brief history of the situation is set out below.

• The previous owner of the Fenners’ property planted the tree.

• The Fenners purchased their property in 2010.

• In 2014 Mrs Woodward became concerned that her paving was being disrupted by the tree’s roots.

• The Fenners applied to Ku-ring-gai Council (‘Council’) in 2014 to remove the tree. Council refused the application.

• Since 2016 Mrs Woodward has paid $1,452.25 over five occasions for a plumber to clear roots from her sewer pipe.

• In 2017 Mrs Woodward wrote to Council noting the damage to her property. Council’s response explained that the time limit for reviewing the decision had passed, so the tree’s owners would need to make a new application.

• Mrs Woodward’s paving is now very uneven near the tree. In 2018 she obtained a quote of $3,795 for repairing the paving.

• The parties met for mediation in 2018. The Fenners asked for further evidence of causation before they would apply to Council again to remove the tree.

Onsite hearing

5. At today’s onsite hearing I observed the tree and Mrs Woodward’s property. The Broad-leaved Paperbark (Melaleuca quinquenervia) is mature, approximately 14 metres tall, with a stem diameter of almost 90cm. It is healthy. As is typical for the species, some branches are attached by narrow forks with bark inclusions, but these appear unlikely to fail in the near future. The tree is within a metre of the common boundary fence.

6. Mrs Woodward’s sewer pipe commences near the rear corner of her dwelling, some 7 metres from the tree, heading away from the tree toward the front of her property. Much closer to the sewer pipe is a row of hedged cypress trees along Mrs Woodward’s side of the common boundary.

7. Behind Mrs Woodward’s dwelling a paved area, partly covered by an awning, is close to the tree. This paved area is raised above the ground where the cypress trees grow. Along the eastern edge of the paving, in a line heading away from the tree, pavers are raised significantly. Immediately beneath the pavers is a PVC stormwater pipe. Not far from this is another raised line of paving, less severely displaced than the former, but again heading directly away from the tree.

Findings

8. I find the causal nexus between the tree and the disrupted paving is apparent through visual observation. Lines of raised paving radiate out from the point closest to the tree. There is no other apparent reason for this paving to be raised. As the trees satisfies the test at s 10(2)(a) of the Trees Act, I can make orders to remedy, restrain or prevent damage.

9. I asked the parties if they could suggest any alternative solutions that might allow the tree to be retained without causing further damage, and that would allow existing damage to be repaired. I concur with their submissions that cutting roots this close to the tree would destabilise the tree. Installing a root barrier between the paving and the fence would require the roots to be cut here.

10. It would be impossible to reinstate the paving at the existing level without removing these roots. The paving could be lifted and reinstalled at a higher level, leaving the roots intact, but this would require significant changes to levels at the back of Mrs Woodward’s dwelling. Besides, roots would then be likely to cause further disruption to the paving within the foreseeable future.

11. When Council refused the Fenners’ tree removal application in 2014, the extent of damage would have been far less severe. However, given the existing damage, I see no practical alternative to removing the tree so that Mrs Woodward’s paving might be reinstated.

Compensation

12. Turning to the matter of compensation, I note that Mrs Woodward has engaged a plumber on five occasions since 2016 to clear her sewer pipe. The receipts for those works do not describe the pipe’s condition, or whether it is a terracotta or PVC pipe. On no occasion was the pipe repaired or replaced so as to prevent further root ingress. Roots cleared from the pipe were not identified. They may have come from Mrs Woodward’s cypress trees, which are closer to the sewer pipe. I am not satisfied that the Fenners’ tree caused damage to the sewer pipe.

13. When the Fenners were first made aware of any nuisance or damage their tree might be causing to Mrs Woodward, they applied to Council to remove the tree. Their application was refused. I accept the Fenners’ submissions that, despite further requests from Mrs Woodward to remove the tree, they could not do so without Council’s permission, and they saw little point in applying again with no further evidence to show their tree was causing damage. They obtained no such further evidence until after Mrs Woodward made this application to the Court.

14. I find the Fenners have therefore been unable to prevent the damage caused to Mrs Woodward’s paving. If their tree has damaged her sewer pipe, they were also unable to prevent that. It would be unreasonable to expect that they illegally remove their tree.

15. It follows that the Fenners will not be ordered to pay compensation.

Orders

16. As a result of the foregoing, the orders of the Court are:

1. The application for compensation is refused.

2. The application to remove the tree is granted.

3. Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove their paperbark tree to no more than 50cm above ground level. The work must be carried out in accordance with the 2016 Safe Work Australia Guide to managing risks of tree trimming and removal work.

4. On reasonable notice, the applicant is to allow any access required to complete the work ordered above during reasonable hours of the day.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 25 June 2019