Land and Environment Court New South Wales Medium Neutral Citation: Hopkins v Ward [2021] NSWLEC 1594 Hearing dates: 6 July 2021 Date of orders: 12 October 2021 Decision date: 12 October 2021 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders: (1) The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to drainage infrastructure - likelihood of further damage in the near future Legislation Cited: Environmental Planning and Assessment Act 1979 Heritage Act 1977 Land and Environment Court Act 1979, s 34 Limitation Act 1969, s 14(1)(d) Mosman Local Environmental Plan 2012, cl 5.10 Trees (Disputes between Neighbours) Act 2006, ss 7, 9, 10(1)(a), 10(2)(a), 12 Uniform Civil Procedures Rules 2005 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Hopkins v Mosman Council [2020] NSWLEC 1476 Lazarus v Lee [2010] NSWLEC 1118 Moroney v John [2008] NSWLEC 32 Osborne v Hook [2008] NSWLEC 1231 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Yang v Scerri [2007] NSWLEC 592 Zhang v Long [2007] NSWLEC 632 Texts Cited: AS4373 Pruning of Amenity Trees Mosman Residential Development Control Plan 2012 Category: Principal judgment Parties: John Hopkins (First Applicant) Sally Hopkins (Second Applicant) Margaret Ward (Respondent) Representation: L Sims (Applicants) R McEwen (Respondent) Solicitors: Hones Lawyers (Applicant) Esplins Solicitors(Respondent) File Number(s): 2021/71220 Publication restriction: No Judgment 1. COMMISSIONER: This is an application, pursuant to s 7 of Part 2 of the Trees (Disputes between Neighbours) Act 2006 (the Act) by John and Sally Hopkins, relating primarily to six Cupressus torulosa (Bhutan Cypress) (the trees) located roughly parallel and close to the common boundary, in the adjacent neighbouring property. Background 1. Mr and Mrs Hopkins (the applicants) and Ms Ward (the respondent), share a side boundary between their properties in Mosman. The applicants' property is located on the southern side of the respondent's, and both properties face the same street, to the east. 2. The application was initiated under both Part 2 and Part 2A of the Act, but the Part 2A application was withdrawn prior to the onsite hearing. 3. Ms Ward occupied her property in 2010. The prior owner of her property had maintained the height of the Cypress trees at around five metres, but Ms Ward discontinued this practice. The trees have subsequently grown substantially, and have largely re-established their natural form. Ms Ward undertook a development in 2011, and concurrently removed two Cypress trees from near the common boundary. 4. The applicants' property has been owned by Mrs Hopkins' family for about 80 years. Mrs Hopkins became a part owner in 2012, and the title transferred to both applicants in 2019. A subsequent development application (DA) for demolition of the existing dwelling house and swimming pool, construction of a dwelling house, swimming pool and landscaping works, was refused by Mosman Council (Council). 5. The applicants successfully appealed this decision to the Land and Environment Court (LEC), under s 34(3) of the Land and Environment Court Act 1979 (LEC Act), whereby the Court must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. Commissioner Horton was satisfied that the parties' final agreement met this requirement, and Orders made on 9 October 2020, are at [39] of Hopkins v Mosman Council [2020] NSWLEC 1476 (Hopkins), with Conditions of Consent at Annexure A. 6. Having had the Class 1 appeal resolved, the applicants commenced action under the Act, on the basis that the trees' roots had caused damage to their plumbing and drainage infrastructure, and were likely to cause further damage in the near future. They sought tree removal and replacement. The onsite hearing 1. Attending onsite were Ms Sims of Counsel, Mr Clarke, Solicitor for the Applicant, and Mr Wachjo, their Stormwater Engineer. For the Respondent, were Ms McEwen of Counsel, and Mr Esplin, Solicitor. They were accompanied by Mr Hartley, Arborist, and Mr Zaki, Civil Engineer. 2. The trees were inspected from the respondent's property initially, and a site context was offered by Ms McEwen, to highlight noted heritage elements. They stand approximately 11 metres tall, with dense canopies, and have a narrow bell form, typical of the species when grown in Sydney. They provide a significant privacy screen for the respondent, but their height and density results in restriction of light to the applicants' land, particularly in winter. 3. The Court moved to the applicants' property. The applicants' original dwelling had been demolished prior to the hearing, and both the trees and relevant parts of the drainage system were accessible for viewing. While the trees were less aesthetically pleasing from this vantage as a result of deadwood accumulation associated with the previous repeated lopping, they appeared to be structurally sound. In essence, the considerable interim since the last pruning, and their relatively sheltered location, had allowed the trees to progressively establish, and maintain, well attached regrowth. 4. Roots were clearly evident in the drainage pit, and a verbal explanation of the pattern of incursion was consistent with my understanding gained from the Stormwater report of Mr Wachjo, dated 15 June 2021 (Exhibit C). The Court adjourned and re-convened on MS Teams for Expert evidence and submissions. 5. For the applicants, expert reports were also provided by Ms Mackenzie, Arborist, dated 11 June 2021 (Exhibit D), and Mr Taylor, Landscape Architect and Heritage Expert, dated 15 June 2021 (Exhibit E). Both Mr and Mrs Hopkins provided affidavits (Exhibits A and B, respectively). The respondent's Heritage report, dated 22 December 2020, by Mr Paul Rappoport, of Heritage 21, is included in Exhibit A from page 30. 6. For the respondents, Ms Ward and her husband, Mr Tim Jordan, provided affidavits (Exhibits 1 and 3, respectively), and Mr Zaki and Mr Hartley provided reports, (Exhibit 4 and 5 respectively), both of which were filed with the Court on 29 June 2021. 7. Though there may be room for latitude when unrepresented parties are engaged in disputes under the Act, where parties have engaged legal representation, there is an expectation that Expert witnesses acknowledge and meet their responsibilities to the Court with respect to the Expert Witness Code of Conduct in s 7 of the Uniform Civil Procedures Rules 2005. While both arborists, and Mr Zaki, satisfied this requirement, neither Mr Wachjo, Mr Taylor, nor Mr Rappoport addressed this duty whatsoever. As a result, the confidence in, and weight I place on their evidence, must be discounted. The applicant's case 1. Mr and Mrs Hopkins propose the following orders: 1. That the row of Cypress Pines and Lilli Pillies (Trees) planted along the southern boundary of 40 Burrawong Avenue, Mosman (No 40) be removed within 30 days of the date of the making of these orders. 2. That the damage to the drainage infrastructure in proximity to the northern boundary of 38 Burrawong Avenue (No 38) be remediated by the replacement of the pipes and drainage pit affected by root growth from the Trees. 3. In the alternative to Order 1 above, that root barriers be installed along the southern boundary of No 40 to an adequate depth to prevent root growth from the Trees from occasioning further damage to property on No 38. 4. The works set out in Orders 1 to 3 above are to be paid for by the respondent. 5. Such further or other orders as this Honourable Court sees fit. The respondents' case 1. Ms Ward resists the applicants' proposed orders, and seeks that the trees be retained. She claims that the Trees are in reasonable condition, and provide important contributions to her privacy, and amenity. Ms Ward and her husband also claim to not have been informed about the previous (2011) damage to the applicants' stormwater pipes. Jurisdictional requirements 1. With respect to s 7 of the Act, 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 next consideration of particular importance is s 10 which states: (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and (b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8. (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. If the Court's jurisdiction is engaged, s 9 enables the Court to make any such orders it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person. In order to determine what, if any, orders should be made, the Court must consider the matters in s 12 of the Act. Have the applicants made a reasonable effort to reach agreement with the owner of the land on which the tree is situated? 1. The conflict between these neighbours has considerable history, as this dispute was preceded by disagreement pertaining to the construction of a proposed new dwelling, on the applicants' land. 2. Records of extensive correspondence between the parties, and particularly their Solicitors, was provided in Mr Hopkins affidavit (Exhibit A). At par 6 of their letter of 22 December, 2020, in reply to Mr and Mrs Hopkins, Esplins Solicitors claim that "Your email's blatant threat 'to remove the trees' does not comply with your obligation" to "make a reasonable effort to reach agreement". 3. While the issue was not pursued at the hearing, it is prudent to provide clarity around this requirement. Preston CJ provides extensive commentary on this question in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson). At [194] – [195], his Honour says: "194 The Trees (Disputes Between Neighbours) Act 2006 does not specify any particular time at which the applicant must make a reasonable effort to reach agreement with the tree landowner, other than fixing the end point by requiring that the Court cannot make an order under the Act unless it is satisfied that the applicant has made a reasonable effort to reach agreement with the tree landowner. Hence, although it would be preferable for an applicant to make a reasonable effort to reach agreement with the tree landowner before making application to the Court, so as to avoid court action, there is no requirement to do so and a reasonable effort to reach agreement can be made after making the application at any time up until the Court determines the application. 195 The language in s 10(1)(a) of the Trees (Disputes Between Neighbours) Act 2006 that the applicant has made "a reasonable effort to reach agreement" is less demanding than the language used in provisions of other statutory enactments which require parties to make reasonable attempts to reach agreement in relation to matters claimed in the court originating process." 1. Given this context where "a reasonable effort to reach agreement", is less demanding under the Act than in many other jurisdictions, and the history informing this dispute, I am satisfied that there has been a reasonable effort made by the applicants to reach agreement with the owner of the land on which the tree is situated, as required by s 10(1)(a) of the Act. Current drainage and stormwater system damage 1. In his email of 2 December 2020, Mr Hopkins informed the respondent that "tree roots are currently causing damage to our plumbing and drainage in the vicinity of the Northern Boundary which the new development is required to rely on". Mr Wachjo's report stated (on page 2), that "the neighbouring tree roots have effectively blocked and damaged the existing stormwater system connecting the two pits", and that "the wall of Pit B was damaged as a result of the tree roots infiltrating through the junction between the core hole through the pit wall at this location". 2. Ms Mackenzie noted that extracted roots had a "reddish bark colour and distinct resin odour consistent with Cypress roots". Based on microscopic analysis of root samples, Mr Hartley agreed that these roots are likely from a gymnosperm, and based on the proximity of the Cypress', relative to a more distant Norfolk Island Pine, suggested "it is tempting to ascribe the damage to the "Bhutan Cypress". 3. I am of the same view, and am satisfied that the Cypress trees "have caused damage to the applicants' property", and thus s 10(2)(a) is engaged, notwithstanding that it is not clear which specific tree or trees these roots belong to. 4. It is relevant to consider the characteristics and function of tree roots in relation to this damage. Contrary to Mr Wachjo's repeated conclusion, tree roots do not "attack". They grow, and thrive where conditions are most favourable, in terms of water, air, and space to occupy. Moisture seeping from breaches in pipe junctions, provides such an environment. At par 28 of his report, Mr Hartley notes that "Tree roots are incapable of penetrating bricks or concrete. For roots to have penetrated between the pipe and the pit wall, there had to be a gap. For roots to get to the diameter of those seen in Figure 2, there had to be a reasonable sized gap, perhaps a gap of more than a centimetre in places". Mr Hartley's Figure 2 is a reproduction of Figure 1 from the Wachjo report. 5. At par 29, Mr Hartley adds; "The roots have penetrated from outside of the pit to the inside of the pit. Consequently, there is every reason to believe that a series of interconnecting voids were present, and these voids had not been filled with mortar or any other sealing material. The original sealing of the pipe appears to have been limited to the rendering of the pit wall. The sealing may have been limited to the inside of the pit wall. Water seeping through voids will have caused a soil moisture gradient resulting in roots growing rapidly towards the optimal gradient." 1. At par 27, Ms Mackenzie notes that fine fibrous roots, consistent with the Cypress roots growing on site, "will enter any fine crack or defect in adjacent pipes and proliferate within a pipe if moisture and an adequate amount of air is present". She adds that "damage associated with this type of root ingress is typically the mass of roots blocking of (sic) the pipe", and observed in Pits A and B, and that "Most PVC drainage systems have slight defects (eg failure of glue between joins over time)." 2. While I generally agree with Ms Mackenzie that roots "will enter any fine crack or defect in adjacent pipes and proliferate within a pipe if moisture and an adequate amount of air is present", the evidence from Pit B, and from Mr Wachjo's photos, displays visible entry points which are large gaps, not 'fine cracks'. 3. Based on my onsite observations, and the arboricultural expertise which I bring to the Court, I prefer Mr Hartley's conclusion that ingress of roots has been significantly facilitated by inadequate construction and sealing of Pit B. The relatively large gaps between the pit wall and the pipe were most likely created when the pit was constructed. If not, consolidation of fill material, and sealing of the interface between the wall and the pipe must have been so superficial and inadequate, so as to allow erosion of it, and access through it, with little resistance. I concur with, and echo Mr Hartley's comment, "For roots to get to the diameter of those seen in Figure 2, there had to be a reasonable sized gap, perhaps a gap of more than a centimetre in places". 4. It is also likely that during and after past periods of sustained rainfall, there was significant leakage of moisture from Pit B into the surrounding soil, providing favourable conditions for root growth. As Mr Hartley notes at par 41, "the system was not in a good state of repair and not only did this allow for roots to enter into the system, it most likely encouraged roots" to do so. Is further stormwater system damage likely in the near future? 1. Mrs Hopkins claimed that damage to the stormwater system had been brought to the respondent's attention in 2011, when her parents owned the property. Both Ms Ward, and her husband, Mr Tim Jordan, provided affidavits disputing that the stormwater system was mentioned during the 2011 conversation. The next time the issue was brought to the respondent's attention was December, 2020. How long the applicants have known about the nature and extent of damage is unclear, but had they been aware of the blockage for a long period, it is surprising that they took no action to remedy the problem, or at least, again brought it to the respondent's attention. Perhaps Mrs Hopkins was aware of the stormwater system problem while her mother resided at the property, but did not become aware of the detail and extent until after she and her husband became owners in 2019. 2. While Mr Wachjo's report suggested that the existing drainage discharge infrastructure is to be re-used in part, I subsequently gained the understanding that it is to be replaced, along with the new dwelling. Regardless, the same questions relate to a new construction, as to a combination of new construction and repair. 3. The opportunity presents for the new drainage system to be a vast improvement on that previously in place. Causes of problems with the current stormwater system have been identified, and solutions have been provided. Mr Hartley has noted that a heavier walled pipe could be used, to reduce the likelihood of distortion, and perhaps concrete to encase the junction. This is not the only possible prescription, so long as the outcome is achieved; the pit and the junction thoroughly sealed to prevent leakage of moisture, and thus exclude root entry. 4. Though Ms Mackenzie notes that "Most PVC drainage systems have slight defects (eg failure of glue between joins over time)", by far the vast majority of PVC stormwater and sewerage pipes used in the community, are not occupied or blocked by tree roots, regardless of proximity of trees, a range of quality of installation, and the fact that many have been operating in situ for many decades. 5. As Mr Hartley says at par 44, "simply sealing the penetration and ensuring that the seal is maintained in a good state of repair will ensure that tree roots never enter the pit in the first place". Though Ms Sims orally submitted that this was an excessive, over-engineered solution, I disagree with this position. Waterproofing need not be considered a dark art. The installation required to prevent damage, at least in the near future, simply requires clear objectives and specifications, and high quality work from licenced professional tradespeople, which would likely be in keeping with other components of the development. 6. Where, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination (Yang v Scerri [2007] NSWLEC 592), I am thus not satisfied that that Cypress roots are likely to cause damage to the new or repaired drainage system, in the near future. Dropping debris 1. Throughout their correspondence regarding intervention with or removal of the trees, the applicants stressed the issue of ongoing maintenance required to clean up leaves dropping onto surfaces, along with having to clear gutters of dead leaves. While the applicants have acknowledged that relief for this is not available under the Act, and have not pursued the issue, I nonetheless choose to clarify the Court's position. 2. In Robson at [171], with respect to "annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind", Preston CJ states that this is not "damage to property on the land" within s 7 of the Act, and that "leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbours land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7." 3. In Robson at [56], discussing the issue of nuisance, his Honour states that "mere encroachment is insufficient to complete a cause of action." 4. The issue of the maintenance impost from falling tree debris is addressed in Barker v Kyriakides [2007] NSWLEC 292 (Barker), which, at [20], establishes the tree dispute principle: "… For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree." Discretionary matters – s 12 1. At pars 7 and 8 of her written submission, Ms McEwen's claims that a significant matter going to the exercise of the Court's discretion in these proceedings is the history of the applicants development approval obtained in 2020, during which the respondent participated in the consultation process as an Objector. 2. Initially, she submits that despite knowing about a long history of root ingress to their stormwater system, the applicants did not communicate this to the respondent. Secondly, that "the Applicants invited the Court to exercise its jurisdiction under s 34(3) of the LEC Act on the basis that the Trees would remain in place, and that their retention ameliorated objections raised before the Court by the Respondent." 3. Paragraphs 9 - 17 reference an array of documents in support of this position. At par 18, the Respondent concludes that "These documents demonstrate that the Applicants invited the Court to exercise its jurisdiction in the Class 1 Proceeding on the basis that the Trees would remain in place, and that their retention addressed privacy, visual bulk and heritage concerns raised in the consultation process and which might otherwise stood in the way of the Applicants' DA. Having obtained the benefit of the Trees in the resolution of those proceedings, the Applicants now seek to have the Trees removed." 4. At par 49 of her submission, Ms Sims claims that Ms McEwen's submission at par 18, "appears to be that there is some form of estoppel preventing the Applicants from seeking removal of the trees in these proceedings because it placed reliance on retention of the Trees in the Class 1 Proceedings". Ms Sims claims that "the legal basis for such a submission is not identified", and that, "nevertheless, there is no basis for the submission on the facts and for the reasons set out in her prior paragraphs, [36] to [39]". 5. There may be no legal basis to link the finalised Class 1 proceedings and this Class 2 action, but that is not at issue. As I have determined that s 10(2)(a) of the Act is satisfied, the various elements that must therefore be considered under s 12, make it both necessary and reasonable for some of the documents referenced above at [18] to be assessed, so as to appropriately and adequately balance the role and benefits of the trees against the imperative for intervention with them. 6. Some Conditions of Consent from Hopkins are relevant. Prior to the release of the Construction Certificate, the following conditions must be satisfied; ● "44. Tree Protection. Prior to any excavation on the site, a work methodology statement including non-invasive root mapping for works within or above the tree protection zones (TPZs) of any tree on 40 Burrawong Avenue is to be prepared by an Arborist (minimum AQF Level 5) and submitted to Council for approval by Council's Tree Management Officer. Any excavation within the TPZs must be carried out in accordance with the approved work methodology statement. Any excavation within any area known to have, or suspected of having, tree roots greater than 40mm diameter must be undertaken by hand. Any trenching works for services / hydraulics / drainage etc within 1 metre of any tree on 40 Burrawong Avenue must be undertaken by hand. Alternative installation methods for services, such as directional boring/drilling, or redirection of services shall be employed where large woody roots greater than 40mm diameter are encountered during the installation of any services." ● "88. On-Site Detention/Rainwater Re-use System. To ensure that future owners are made aware of their responsibilities with respect to the on-site detention (OSD) system or rainwater reuse tanks, a Positive Covenant shall be created on the title of the allotment requiring that the owner(s) maintain and keep in working order the OSD system or rainwater reuse tanks, unless otherwise approved in writing by Mosman Council. A fee applies for the checking, approval and execution of the Positive Covenant by Council and must accompany the Positive Covenant when lodged with Council. For details refer to Council's current Fees and Charges Schedule at the time of payment. The terms of the positive covenant shall read: In this Positive Covenant "detention system or rainwater reuse system" shall mean the detention system or rainwater reuse system approved by Mosman Council pursuant to Development Consent No. 8.2019.65.1 or any modification thereof approved by Mosman Council in writing. The Registered Proprietors will at their own expense well and sufficiently maintain and keep in good and substantial repair and working order any detention system/rainwater reuse system which exists from time to time on the land. The Registered Proprietors shall not remove the detention system/rainwater reuse system without prior consent of Mosman Council. The Registered Proprietors hereby agree to indemnify Mosman Council from and against all claims, demands, actions, suits, causes of action, sum or sums of money, compensation damages, costs and expenses which Mosman Council or any other person may suffer or incur as a result of any malfunction or non-operation of any such detention system/ rain water reuse system arising from any failure of the Registered Proprietors to comply with the terms of this Covenant. The term "Registered Proprietors" shall include the Registered Proprietors of the land from time to time and all their heirs, executors, assigns and successors in title to the land and where there are two or more registered proprietors of the land the terms of this covenant shall bind all those registered proprietors jointly and severally." 1. In making an order, the Court considers relevant matters in s 12 of the Act. Location of trees 1. The trees are located in the respondent's property roughly parallel and close to the common side boundary (s 12(a)). Interference with the trees 1. In the absence of s 6(3) of the Act, interference with the trees may require consent from Council under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977. While the genus Cupressus is in the Mosman Residential Development Control Plan 2012 (DCP) list of exempt species, to which Part 3 of the State Environmental Planning Policy (Vegetation in Non-Rural-Areas) 2017 does not apply, the DCP does apply to "All trees which are 2m or more in height, only if located in a heritage conservation area, or if are a heritage item or form part of a heritage item." It is unclear which element takes priority. 2. Though the applicants have emphasised Council's negative stance towards Cypress trees and noted "Council has also placed conditions on development consents prohibiting Cypress trees from being planted", it is relevant to note that Council's Tree management information explicitly references and emphasises problems with Cupressocyparis leylandii (Leyland's Cypress) in this respect, not other Cypress species (s 12(b)). Pruning 1. As they stand, there are no obvious characteristics of the live canopy of the trees that arouse concern. Though the harsh past pruning was a poor arboricultural practice, and in contravention of AS4373:2007 Pruning of amenity trees, the regrowth appears to be relatively well attached, and there is no obvious reason for concern about structural weakness in the trunk, nor apparent issues with structural stability. There are no obvious faults at branch junctions, and no reports of failed branches, or past near misses. I concur with Ms Mackenzie that any suggested heavy pruning (topping) would render the trees under stress. They would likely respond initially by developing poorly attached epicormic growth, which would render otherwise stable canopies less safe for both parties. 2. Pruning should not occur as part of 'normal' maintenance, but should be undertaken only when necessary to achieve a required purpose. Ms Mackenzie's suggestion that conifers should be lightly pruned, only relates to situations where the trees require pruning at all. The ideal situation for trees is normally an absence of intervention. As sugars produced by photosynthesis power all essential functions, presuming water, nutrient, light, and other requirements are satisfied, optimum health is a product of maximum live foliage coverage. It necessarily follows that removal of live foliage as a result of pruning, or other intervention such as root destruction, compromises tree health. Root pruning of any of the trees is restricted by the requirements of Condition of Consent 44 - Tree Protection, detailed above at [44]. 3. Pruning of deadwood to satisfy aesthetic and safety considerations, could, however, be completed by skilled, AQF3 qualified arborists, with little negative impact on tree health. Section 12(b2). Landscape and heritage 1. The trees contribute to privacy, garden design and landscaping, protection from wind, to the amenity of the respondent's property, and to heritage values. While privacy issues may have been addressed in consideration of the applicants' development as if the trees were absent, the trees nonetheless provide considerable privacy and protection from the elements for the respondent. The contribution to heritage, and garden design, is explicit, and significant. 2. The Heritage 21 Report initially provides the objectives of Mosman Council's Local Environmental Plan 2012 (MLEP) at cl 5.10(1) which are: a) To conserve the environmental heritage of Mosman; b) To conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views. … 1. The trees, about 12 in total, are specifically included along the boundary, in the c1949 AJ Doust landscape plan referenced by both Heritage Experts. The Statement of Significance on the NSW Heritage Registry lists the house as 'A fine representative example of Inter-War Old English architecture. One of the best examples of this style of architecture in Mosman, in a very successful garden setting'. 2. The trees would be about 70 years old, presuming the planting is about the age of the plan. The Bhutan Cypress are also featured as specimen trees in a central area of the front garden, and the species selection was likely highly considered. 3. At page 6 of the Heritage 21 report, Mr Rappoport says; "The proposal to remove these significant mature trees located within the subject site would result in the loss of a significant landscape element and would engender a negative impact of the setting of the site, which is a heritage listed item – 164 – listed under Schedule 5 of the MLEP2012. Further the Statement of Significance for the subject site clearly acknowledges the contribution of the mature landscaping to the heritage significance of the subject site. Heritage 21 is therefore of the opinion that the proposal to remove/ significantly reduce the height of the trees located to the southern boundary of the subject site would be detrimental to the heritage significance of the subject site." 1. At [31] of Hopkins, Commissioner Horton says; "The site adjoins an item of local heritage significance at 40 Burrawong Avenue, engaging the provisions of subcl 5.10(4) of the MLEP. I am satisfied that the heritage significance of the item is not adversely affected by the proposed development for three reasons. Firstly, the item at 40 Burrawong Avenue is set well back from the street, and from the boundary adjoining the proposed development. The effect of this generous setback, combined with mature landscape planting, is that the proposed development and heritage item are not seen together." 1. Mr Taylor's report notes engagement on behalf of the applicants and initially outlines the tree removal and drainage infrastructure remediation orders they are seeking. He describes the report structure as prepared in accordance with guidelines of the Burra Charter and NSW Heritage manual. On page 2, he notes that Bhutan Cypress were the "dominant species" used in the c1949 garden plan. He claims that since height reduction pruning ceased about 7 years ago, the trees "have been allowed to realise a more mature form", and "this has contributed to the extensive root invasion to (the applicants' land)". To support this claim, Mr Taylor references Ms Mackenzie's report without any specificity, "the small width of the planter (approximately 1 metre), the instability of some of the trees evidenced by their lean and the disruption of the small stone garden wall that contains the tree to this garden bed." Mr Taylor then contrasts the use of the trees on the boundary with those used as garden features and opines that "the planting of such trees in such a restricted location as evidenced in the boundary planting location is unwise and as such the trees should not have been planted there at all." 2. On page 5, Mr Taylor adds that "The use of Cypresses to centre of the garden as feature trees is consistent with the style and period of gardening of the time. The use of Bhutan Cypresses close (sic) to the boundary adjacent to (the applicants' property) represents unwise planting to a constricted area of the garden." He concludes with the opinion that "the subject trees while consistent with the heritage qualities of the place are unsuitable for the location in the garden and should be replaced with the suggested species above. The removal of these trees will not impinge on the heritage qualities of place." 3. While I understand that Mr Taylor is qualified to opine on landscape design considerations, his report presents an inadequate argument in what is apparently primarily a report on heritage. There is no indication what reference he is drawing from the Mackenzie report, I am unaware of any mention by either arborist about genuine stability concerns, nor did I notice that the trees were conspicuously leaning. Even if they were leaning, this does not necessarily reflect stability issues. Mr Taylor is verging outside his area of expertise. Merely suggesting that the planting location of the trees was "unwise" fails to address the current role which the trees perform in terms of the integrity of the heritage item, and its curtilage. Particularly in light of Commissioner Horton's comments, at [31] of Hopkins, regarding factors providing for the proposed development and heritage item to not be seen together, I am not persuaded by Mr Taylor's concluding opinion "that the removal of these trees will not impinge on the heritage qualities of place." 4. Conversely, my conclusion is that the trees are a major component of the 'mature landscape planting' and are the primary element contributing to the proposed development and heritage item being 'not seen together'. This would not be the case if the trees were removed. Even if replanting proceeded smoothly, there would be a considerable interim period with little replacement vegetation, and most of the replacement plants suggested are less substantial large shrubs, rather than trees. (subss 12(b), (e)). Public amenity 1. When viewed from the street, the trees are conspicuous, and thus provide intrinsic public amenity. At 72 years of age, the trees have historical value (subss 12(c),(f)). Biodiversity 1. Though the trees may contribute little to local biodiversity in terms of flowers or fruit, the dense, congested canopy provides opportunity for habitat. Possums often nest in Cypress trees. (subs 12(d)). Soil stability 1. Given the slope of the land of both properties, and the different levels on which their houses and yards are located, the trees are likely to be providing soil stability, and increasing the absorption of water and the reduction of run off. (subs 12(g)). Other considerations 1. Subsection 12(i) considers anything, other than the tree, that has contributed, or is contributing, to any damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. 2. This is relevant in consideration of compensation for the drainage infrastructure damage. In her affidavit, Mrs Hopkins notes a 2011 conversation between her mother and herself, and the respondent and her husband, Mr Jordan. She claims that the subjects were the overshadowing, dropping debris and potential fire risk caused by the trees, and "that the roots were getting into the drainage on our side of the boundary". The respondent and her husband deny that this conversation included reference to the stormwater. Mrs Hopkins also refers to a submission lodged with Council in response to a 2011 DA by the respondent (her Annexure "A"), which details fibrous roots affecting the sewer, non-sewer pipe work, and sump hole piping, but the applicant sought no clarification as to whether the respondent was made aware of this submission. If an applicant becomes aware of damage being caused to their property and do not inform the tree owner in a timely fashion of the damage, this failure can be taken into account by the Court when considering whether or not to make orders relating to the damage: for an example see Osborne v Hook [2008] NSWLEC 1231; Lazarus v Lee [2010] NSWLEC 1118 [11] - [13]. 3. Even if the conversation content was as Mrs Hopkins claims, she makes no mention of discussion about any intended remediation or maintenance of the plumbing issues, or of a request for the respondent to fund or contribute to such works. While Mrs Hopkins notes that her mother did not have the mental or emotional energy to pursue the respondent to adopt the prior (pruning) maintenance regime, it also appears that there was no further contact with the respondent about plumbing issues related to the tree, until late 2020. 4. I am, therefore, not satisfied that the damage was sufficiently or appropriately notified to the respondent in 2011. Additionally, The Court has held that the Limitation Act 1969 (s 14(1)(d)) applies to compensation claims under the Act. The consequence is that there is a general six-year time limit, as from the date of filing an application under the Act, for compensation claims for past damage to an applicant's property (see Moroney v John [2008] NSWLEC 32 at [32] and [33]). The time limit regarding compensation for damage related to any 2011 notification is expired. 5. A second consideration is that the trees were there first. The Court has considered what approach should be taken where the structure that is the subject of a damage claim was erected in the vicinity of an existing tree. The Court has published a Tree Dispute Principle which says, in summary, that the fact that the tree was there first should not impact on whether or not some order should be made about the tree but, subject to a range of matters discussed in the Principle, the prior existence of the tree may be a relevant matter to be considered when deciding who should meet the cost of carrying out any orders which the Court might make (see Black v Johnson (No 2) [2007] NSWLEC 513). 6. Third, poor design is relevant. Following on from "the tree was there first", structures built beneath existing trees may be of a design that fails to take account of existing adjacent trees and thus exacerbate problems. The size and pattern of the larger roots which damaged a pipe in Pit B, indicates that sealing of the pipe/pit wall junction was absent or inadequate. Moisture leaking from the pit likely provided an ideal environment for proximal root growth, and significantly contributed to the damage. 7. At par 32 of his report, Mr Hartley claims "the roots have entered the stormwater pit more than four years before they were recently discovered". This was unchallenged by the applicants, as was his suggestion that roots could have been present for another three or four years before that. Condition of Consent 88 for the On-Site Detention/Rainwater Re-use System (OSD) stipulates the requirement for "the owner(s) to maintain and keep in working order the OSD system or rainwater reuse tanks". While this relates to the new development, such a maintenance requirement is not new. It appears likely that the damaged system has not been checked or maintained for many years. The Court has taken into account the time delay after applicants became aware of damage and the failure of the applicants to maintain their own property (see Zhang v Long [2007] NSWLEC 632 at [94] - [104]. 8. Ms Sims makes the claim that repair or replacement of the stormwater system will be required primarily as a result of the damage caused by the trees. Had the system been designed and constructed adequately, and been inspected and maintained even irregularly, the occurrence of such damage would have been extremely unlikely. Given that I have deemed the alleged 2011 notification of damage to be inadequate, any liability could relate only to damage post the December 2020 notification. As the damage impact was clearly existent many years prior, any incremental post December 2020 damage would be negligible, and the respondent shall bear no liability for this damage. Conclusion 1. I have examined the tree and the site and have reached the following conclusions: 1. Roots from one or some of the trees have entered and caused damage to the applicants' drainage system, and thus s 10(2)(a) of the Act is engaged. 2. The area of primary damage in Pit B was constructed with an inadequate seal between the pit wall and the entry pipe, thus providing ideal conditions for proximal root growth, and entry into the pit and pipe. It appears that the drainage system was not inspected, or maintained for many years prior to the recent damage discovery. The email of 2 December 2020 from Mr Hopkins appears to be the initial valid notification to the respondent, of drainage system damage. 3. Even if the 2011 notification of drainage system damage was made to the respondent, as submitted by Mrs Hopkins, it appeared vague, and absent of any claim for compensation. Particularly in the absence of any other related notification during the following nine years, I do not accept it as valid notification of a claim for compensation for damage. In any case, the period for any compensation claim from a 2011 notification has expired, in accordance with the Limitation Act 1969, which applies to all damage under the Act, other than for house foundations. 4. Given the inadequate construction which failed to consider the pre-existing trees, the applicants' failure to maintain their own property, and the fact that, at least, most of the damage is likely to have been incurred prior to notification of the respondent in December, 2020, no orders will be made for compensation for past drainage system damage. 5. I am satisfied that, now informed about the shortcomings of their previous drainage system, the applicants can install a new system, and or repair the current system, so that damage from tree root entry is unlikely in the near future. The system can be monitored, as required, with reference to the inspection and maintenance regime, imposed under Condition of Consent 88 of Hoskins. 6. Assessment of the s 12 elements profiles sound, mature trees which provide many environmental services and ecosystem benefits, including privacy. Particularly, they provide a sense of separation between the parties' properties so "that the proposed development and heritage item are not seen together", as highlighted at [31] of Hoskins. 7. Conversely, I find no reasonable justification to intervene with the trees, either by removal or pruning. They are healthy, appear structurally stable, and the applicants are required to protect their root systems, under Condition of Consent 44 of Hoskins. Now the trees have been able to largely re-establish their natural form, pruning of the live canopy is neither preferable, nor required. Finally, any ambiguity around dropping debris has been clarified, and resolved, through consideration of the Tree Dispute principle in Barker. Orders 1. As a result, the Court orders that: 1. The application is dismissed. …………………………. 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: 15 October 2021