Land and Environment Court New South Wales Medium Neutral Citation: The Owners – Strata Plan No. 1377 v The Owners – Strata Plan No. 8427 [2020] NSWLEC 1558 Hearing dates: 15 September 2020 Date of orders: 15 September 2020 Decision date: 15 September 2020 Jurisdiction: Class 2 Before: Douglas AC Decision: See orders at [17] below. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – trees causing damage to driveway, fence and pipes – whether damage to infrastructure is caused by the trees Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Texts Cited: Inner West Council Tree Management Development Control Plan (February 2020) Category: Principal judgment Parties: The Owners – Strata Plan No. 1377 (Applicant) The Owners – Strata Plan No. 8427 (Respondent) Representation: Counsel: W Van Ede (Solicitor) (Applicant) A Farmer (Solicitor) (Respondent) Solicitors: J S Mueller & Co (Applicant) Lawyers Chambers on Riley Pty Ltd (Respondent) File Number(s): 2020/75733 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. The Owners – Strata Plan No. 1377 (the applicant) share a side boundary with a property owned by The Owners – Strata Plan No. 8427 (the respondent), in Summer Hill. The dispute is based on damage to driveway pavement, retaining wall, fence, stormwater pipe and services, located near or on the common property boundary, allegedly caused by the roots of a row of trees located within the respondent's property, close and loosely parallel to the boundary. 2. In an attempt to remedy damage that the trees have caused, are causing, and are likely to cause in the near future, the applicant made an application, pursuant to s 7 of Pt 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The applicant's case 1. The applicant has procured three reports to clarify the damage, and its repair. These are: 1. Survey Report of Mark John Andrew, dated 13 February 2019. 2. Arborist Report of Mark Hartley, Arborist Network, dated 1 October 2019. 3. Engineering Report of Stefani Group, dated 20 January 2020. 1. The authors of each report acknowledged and agreed to be bound by the Expert Witness Code of Conduct, in Sch 7 of the Uniform Civil Procedure Rules 2005, and each report met this Code's requirements. 2. The survey identified 22 trees, growing within one metre of the boundary, with each tree located primarily on the respondent's property. Mr Hartley noted 29 trees in total, with 16 of those, comprising 14 Camphor Laurel's and two Forest Red Gums, recommended for removal. 3. The parties negotiated towards a resolution, and provided consent orders to the Court. The on-site hearing proceeded to ensure that the site circumstances and consent orders reconciled, and satisfied the requirements of the Act. The on-site hearing 1. The on-site hearing was attended by solicitors representing each party, along with residents from both properties. Jurisdictional requirements 1. 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. 2. The applicant has satisfied the requirement under s 8(1)(a) of the Act: to serve notice to the respondent more than 21 days prior to the proceedings. 3. The applicant has also satisfied s 10(1)(a) of the Act: to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated. As noted in the application, there has been extensive correspondence between the party's representatives between 2015 and 2018, on-site meetings between the party's representatives in 2017 and 2018, alleged refusal by the respondent to sign a tree removal application to local Council in 2016 and 2017, and refusal by the respondent to remove or prune the trees. 4. The next major test that is posed, by s 10(2) of the Act, which states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. 2. The relevant trees, and the damage caused to the driveway pavement, retaining wall, fence, stormwater pipe and services was clearly identifiable, and there was no ambiguity as to the trees being the cause of the past, and current damage. Without intervention, the trees are also likely to cause additional damage in the near future. 3. With s 10(2)(a) satisfied, I therefore have jurisdiction under s 9 of the Act to make a wide range of orders with respect to the tree. In order to determine, what, if any, orders should be made, the Court must consider the matters in s 12 of the Act. Discretionary matters – s 12 1. In making an order, the Court considers relevant matters in s 12 of the Act: * The trees are located in the respondent's property (subs 12(a)); * Pruning or removal of the tree/s would require consent under Inner West Council's Tree Management Development Control Plan 2020 (subs 12(b)). * Seven trees of various species have been identified by Mr Hartley for retention and protection, and a further four Camphor Laurels have been recommended for retention, with an option of reduction pruning. Though the pruning recommended by Mr Hartley may be severe, I endorse his rationale that this species is sufficiently hardy to tolerate the heavy pruning recommended to reduce the height, and thus leverage on the trees, because they may otherwise exhibit structural instability in the ground following the required root cutting and disturbance. * The removal of the specified trees will make a major impact on the site, and particularly on the privacy of residents who face the common boundary. Therefore, engineering solutions that allow retention and pruning of some trees, rather than removal, are encouraged (subs 12(b2)). * The trees contribute to privacy for many residents, protection from the sun, and from wind, to the natural landscape and amenity of the respondent's property, and to the immediate locality. The trees are mostly tall, and prominent from the street, they are readily visible from neighbouring houses and thus have intrinsic value to public amenity (subss 12(b3), (e) and (f)). * Repair of the damage will require extensive excavation across the boundary to provide space for strong retaining wall foundations, and the installation of new infrastructure services. * The removal of the two Forest Red Gums is particularly regrettable, as they are a large native, long lived species, likely to make significant ecosystem contributions, by providing food and shelter for local fauna and thus they would contribute to local biodiversity. Regrettably, their vast trunk base, located in close proximity to the boundary provides little opportunity for retention, because of the likelihood of compromised stability resulting from root excavation (subs 12(d)). * The trees are likely to be providing benefit to soil stability, and to absorbing water and reducing run off (subs 12(g)). Conclusion 1. I have inspected the trees and the site and reached the following conclusions. 1. As s 10(2)(a) of the Act is satisfied, the Court will make orders under s 9(1) of Pt 2 of the Act to remedy this damage, caused as a consequence of the trees the subject of the application concerned. 2. The extent and nature of the damage caused by the trees is such that tree removal and pruning works are necessary and appropriate to rectify the situation, even though many environmental services provided by the trees, and described in the s 12 considerations, will be lost or compromised. 3. In this context, the orders provided by consent of the parties are appropriate to resolve the dispute. Orders 1. The orders of the Court are: 1. On or before 30 November 2020, SP8427 will, at its cost, carry out the work identified by Mark Hartley in his report dated 1 October 2019 ("Tree Work"). 2. SP8427 will provide SP1377, its contractors, employees and agents, access to its common property on reasonable written notice for the purpose of carrying out the work identified by David Stefani in his report dated 20 January 2020 ("Infrastructure Work"). 3. The parties will do all things and sign all documents necessary to obtain any necessary Council approval for the Tree Work. 4. If there is any delay occasioned by the need to obtain Council approval, or delay due to circumstances outside either parties' control (for example, restrictions due to COVID-19 Pandemic) the date referred to in Order (1) may be extended by written agreement of the parties. 5. The parties agree that all works should be carried out as efficiently as possible. If contractors recommend the removal of the boundary fence and/or retaining wall (or parts thereof) prior to the Tree Work commencing, the parties agree to follow that recommendation. 6. In the case of Order (2) above, the Access Terms apply. 7. The "Access Terms" are as follows: 1. SP1377 provides SP8427 with the names and licence numbers of the contractors proposed to do work on SP8427's property. 2. SP1377 indemnifies SP8427 in respect of any loss or damage arising out of carried out by contractors on SP8427's property. 3. SP1377 provides SP8427 with evidence of the contractor's insurances, including public liability insurance to $20 million. 4. Subject to SP1377's compliance with the above terms, SP8427 will give access to its property no less than seven days after receiving written notice that access is required. 1. Each party to pay its own costs. ………………… J Douglas Acting Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2020