Land and Environment Court New South Wales Medium Neutral Citation: Golden v French [2022] NSWLEC 1642 Hearing dates: 14 September 2022 Date of orders: 18 November 2022 Decision date: 18 November 2022 Jurisdiction: Class 2 Before: Douglas AC Decision: The Court orders: (1) The application is refused. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to retaining wall and risk of injury claimed, reasonable wear and tear, no consequential damage or genuine risk found Legislation Cited: State Environmental Planning Policy (Vegetation in non-rural areas) 2017 Trees (Disputes Between Neighbours) Act 2006 Pt 2 ss 7, 8, 9, 10, 12 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Golden v Li [2021] NSWLEC 1751 Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 Stevens v Russell [2016] NSWLEC 1233 Wisdom v Payn [2011] NSWLEC 1012 Texts Cited: Australia Standards - AS4373:2007 Pruning of amenity trees (2007) Ku-ring-gai Development Control Plan 2021 Category: Principal judgment Parties: Patrick Golden (Applicant) Michael French (Respondent) Representation: P Golden (Self-represented) (Applicant) M French (Self-represented) (Respondent) File Number(s): 2022/198365 Publication restriction: No Judgment 1. COMMISSIONER: Patrick Golden, the applicant, shares a boundary at his Turramurra property with the respondent, Michael French. The applicant's property is a deep rectangular block with the long boundaries running from the south-east at the street frontage to north-west at the rear. 2. The rear of the respondent's land meets the applicant's north-eastern side boundary towards the back of the applicant's land, as do the rear boundaries of both of the respondent's side neighbours. The respondent's side boundaries run from north-east at the front to south-west at the rear. 3. Mr Golden has a stabilised loam tennis court at the back of his rear yard which extends to both side boundaries, and is more than 50 years old. His land slopes down appreciably towards the west, such that extensive excavation, particularly around the east-side corner, was undertaken to create the court's level surface. 4. A slightly backward leaning tall masonry retaining wall was built just inside and parallel to the boundary on the court's north-eastern side. The wall's quality and structural integrity is unknown, and concealed by cement render, but it has been fit for purpose for over 50 years. The respondent's back yard is at the level of the top of this retaining wall. 5. To retain the south-eastern side of the excavated eastern corner, a banked retaining wall was created with an angle of about 40 degrees from vertical. This banked wall was stabilised with bush rock of various sizes, mortared together. 6. A Jacaranda mimosifolia (Jacaranda) (the tree) is growing in the southern corner of the respondent's back yard close to the top of the walls. It is long established and mature, but is relatively small for its age and displays signs of stress. The tree's location near the retaining walls may be subject to sharp drainage and thus low moisture availability, and/ or the tree may have been subject to past root damage. 7. Mr Golden claimed that the tree has caused damage to his bushrock retaining wall and he seeks compensation of $437.80 for rectification. Though the tennis court is covered in moss and apparently has not been used or maintained for many years, Mr Golden also sought to gain maximum light onto the court, and thus wanted the tree pruned to allow increased light to the tennis court, or removed. 8. Mr French rejected Mr Golden's claim for compensation for repairs to the retaining wall or for tree pruning or removal. He submitted that he had monitored the roots over time and detected no damage or change, and that any deterioration of condition should be considered as 'normal wear and tear'. He said that the tree had been pruned, under pressure from the applicant, and he did not want it pruned more. 9. As a consequence, Mr Golden submitted an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) seeking the following orders: Applicant's proposed orders 1. Respondent to thin out Jacaranda tree to restore lost sunlight to the south-eastern corner of (the) applicant's tennis court. 2. Respondent to cut the Jacaranda roots back from two retaining walls and install a root barrier to prevent further damage to the retaining walls, OR 3. Respondent to remove the tree. 4. Respondent to pay for repair of damage caused to (the) applicant's stone retaining wall by roots of the Jacaranda tree, as per attached quote from Glen Harris Landscaping ($437.80). The on-site hearing 1. The site view commenced with both parties in the respondents' rear yard for an inspection of the tree and the top of the courtside retaining wall. Mr Golden was accompanied by Mrs Golden, and Mr French was joined by an interested side neighbour, whose property also borders Mr Golden's land. 2. Inspecting between the base of the tree and the retaining walls, I did not detect roots that appeared to be compromising either wall. With the arboricultural expertise I bring to the Court, based on the appearance of both the trunk and exposed roots, I have an appreciation of their approximate growth rate range. This tree's growth rate seemed particularly slow. 3. The Court moved to the applicant's tennis court and inspected an area of the boundary wall, far from the tree, that had been previously repaired by the parties. I then climbed up the banked retaining wall and assessed roots, visible between the bush rock, that the applicant claimed were causing the wall damage. 4. Submissions by the parties were tense. The respondent was particularly indignant, expressing that the wall damage issue was trivial, and was being used by the applicant as leverage with respect to a concurrent conflict over stormwater flowing from near the respondent's tree onto the applicant's tennis court. Jurisdictional requirements 1. With respect to s 7 of the Trees 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 Court is obliged to consider a number of matters pursuant to s 10 of the Trees Act 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. 1. The applicant has provided evidence that the requirement under s 8(1)(a) of the Trees Act: to serve notice to the respondent more than 21 days prior to the proceedings, has been satisfied. 2. He has also satisfied s 10(1)(a) of the Trees Act: to make a reasonable effort to reach agreement with the owners of the land on which the trees are situated. Copies of correspondence in the application includes attempts to resolve the dispute directly with the respondents. Having said this, the parties exchanged a series of accusatory and defensive affidavits prior to the final hearing, which resulted in a hearing that was quite bitter. 3. The next major test that is posed, by s 10(2) of the Trees 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. If the jurisdictional test in s 10(2) is satisfied, s 9 of the Trees Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. In contemplating orders, the Court is required to consider the discretionary matters in s 12 of the Trees Act, so as to provide balancing of the trees' attributes and benefits, against the imperatives informing intervention. Retaining wall damage 1. Mr Golden claimed that tree roots have damaged mortar joints and displaced rocks in the banked bushrock retaining wall. I identified Jacaranda roots near the top of the wall quite close to the tree, the largest of which the applicant had displayed in photographs (photos). Upon close inspection, and abrasion of the bark surface at various locations, I found that these roots were dead. 2. The mortar binding stones close to these roots remained largely intact. However, it appeared that root pressure has caused a medium sized stone to tilt upwards. Mortar attaching this stone to another had broken away. Three larger rocks surrounding this tilted rock show no indication of having been mortared, rather they are lodged into place and are firm and stable. Though my visibility was restricted to small gaps between rocks, at close range I could not detect other roots impacting the wall. 3. Though this damage is minor, the Court's decision in Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 (Granger) indicates that even relatively minor damage engages the Court's jurisdiction. Therefore, as a consequence, s 10(2)(a) of the Trees Act is engaged. 4. Whether the damage is minor or major is irrelevant in answering the jurisdictional tests in s 10(2), but it can be relevant in determining what orders, if any, should be made. 5. Erosion of soil was obvious between and under rocks in this area of the wall, which appeared to be directly in the path of runoff from the respondent's land. Some mortar cracking and degradation was identified in this area. The high levels of runoff that have accompanied record rainfalls in recent years would thus have exacerbated deterioration of the wall from normal wear and tear. 6. The applicant also claimed that roots from the tree were compromising the boundary retaining wall and had caused damage about 7 – 8 metres from the tree base. In his 'Attachment (A)', Mr Golden claims that "roots from this tree were a contributing factor to a section of the wall failing a few years ago, that had to be replaced at great cost". 7. Mr French strongly disputed the applicant's submission. In his affidavit of 10 August 2022, at question 9 he states; "In relation to the claims made, there is absolutely no way this tree root had any impact on the boundary retaining wall. The wall failed in the centre section and this was replaced by sharing the cost. I had just bought the property 14 years ago. The tree root does not affect the retaining wall and is a significant distance, around 8 metres, from where the wall needed to be rebuilt." 8. In Stevens v Russell [2016] NSWLEC 1233 (Stevens) at [40], Commissioner Fakes notes that: "It is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required." 1. No excavation was undertaken, and nor was other reliable evidence provided by the applicant to display a nexus between the tree's roots and this historical wall damage. Nor is there any visual or other evidence to substantiate that damage to the boundary retaining wall resulting from the tree is likely in the near future, where, in a guidance decision published in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. Therefore, the issue of damage to the boundary retaining wall is set aside. Risk of injury 1. Mr Golden submitted in his application that the tree presented a genuine risk of injury to tennis players as a result of overshadowing of the court by the tree, resulting in slow drying of the loam surface. In his 'Attachment (A)', Mr Golden says; "The tree has grown to overshadow the south-eastern corner of our tennis court and its unmaintained growth, since the respondent moved in …" 2. The applicant describes the tennis court as having "had periods of use and disuse during the 40 years that we have owned the property". The respondent claims to have not seen the tennis court maintained and used in the 16 years of his occupation. In response, the applicant insisted that the court was still used occasionally but based on the extent of moss coverage and weathering of the court surface, it appeared to be many years since it had use. 3. As with damage, the Trees Act requires a direct link to be established between the tree and likely injury to engage the jurisdiction of s 10(2)(b). Issues normally considered in assessing tree risk are the presence of targets, tree faults or hazards (such as root instability or breaking branches), the size of the failing part, and its likelihood of failure. In considering all these elements with this tree, I find the risk of injury from the tree to be low. 4. Causal relationships between trees and damage, or risk of injury are comprehensively explored in Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 (Robson). 5. Considering damage or injury by animals, at [189] of Robson, Preston CJ says: "Finally, the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. Thus, although a tree when it flowers might attract bees seeking nectar in the flowers, and the presence of the bees might increase the risk of persons in the vicinity being stung by bees, it is not the tree itself that is likely to cause such injury of bee sting to any person, but rather it is the bees: see Immarrata v Mourikis [2007] NSWLEC 601 (12 September 2007) (Bly C, Fakes AC). Similarly, the fact that an animal which has caused, is causing or is likely to cause in the near future damage to property on adjoining land, uses a tree as habitat, such as for feeding, roosting or nesting, does not result in the tree itself having caused, causing or being likely to cause in the near future damage to the applicant's property: Dooley v Newell [2007] NSWLEC 715 (23 October 2007) (Moore C, Thyer AC) at [22]-[23]." 1. Similarly, the loam surface of the Court may become slippery when excessively moist, and injury may result from people sliding on it, but this is as a result of the characteristics of the loam surface, and record rainfall, not as a direct result of the tree. 2. Finally, risk of injury hinges on occupancy of target areas near trees. In his 'Attachment (A)', Mr Golden claims that the slippery eastern corner resulting from "unmaintained growth" of the tree "has progressively led to us being unable to use the court year-round, in particular during mornings, due to safety concerns". This suggested that the tennis court had been used in recent years, but based on its appearance, this seems unlikely. I am not satisfied that target areas near this tree are occupied more often than 'rarely'. Mr Golden provided no risk assessment or other substantive evidence to support his claim, so this element is also set aside. Shading of south-eastern corner of tennis court 1. According to the applicant, at [21] of his affidavit of 22 August 2022, branches overhanging the tennis court, and their shading of its south-eastern corner, "form an integral part of this tree dispute". Further, much of the antipathy from Mr French and his neighbour towards Mr Golden appeared to have arisen from Mr Golden's pruning of overhanging branches from this tree, and others. 2. Under the Trees Act, there is no remedy for overhanging branches or encroaching roots unless they also cause damage. In Robson, at [56], discussing the issue of nuisance, his Honour states that "mere encroachment is insufficient to complete a cause of action". 3. This is Mr Golden's third application against neighbours under the Trees Act since late 2021. In his initial action, Golden v Li [2021] NSWLEC 1751 (Golden), against a side neighbour, the applicant sought removal of a Brush Box tree, or pruning to the common boundary, based on alleged wall damage caused by the tree, and its leaves and other refuse damaging the tennis court. 4. At [12] – [15] of Golden, Galwey AC makes the following findings: [12] This brush box is a typical garden tree, not an uncommon species, growing in the leafy landscape of Turramurra. Aerial photos of the suburb show that most gardens have vegetation including trees and shrubs. Of course, many of the suburb's trees have branches that extend across boundaries, overhanging dwellings, pools, gardens, and here, a tennis court. The common law right to prune overhanging branches to the boundary is curbed by consent requirements for pruning trees specified within the Ku-ring-gai Development Control Plan 2021. [13] Mr Golden argued that, were it his dwelling beneath the tree, he would need to constantly clean debris from his roof and gutters, which would be unreasonable. The tennis court, he said, should be considered no differently – it requires constant and unreasonable maintenance to remove debris. [14] If I accept that the tree has caused damage to Mr Golden's property by its leaves, twigs and other debris falling onto his tennis court and blocking the drains, I would still not make orders to prune or remove the tree. While such a situation would enliven the Court's jurisdiction at s 10(2)(a) of the Trees Act, the Court must consider matters at s 12 before making orders – matters that include any acts and omissions of the parties. Damage to the tennis court could be prevented by reasonable maintenance. While Mr Golden might find the level of maintenance unreasonable, it is nothing unusual for the area in which he lives. There is nothing about his situation that would lead me to diverge from the Court's principle established in Barker v Kyriakides [2007] NSWLEC 292 at [20]: "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 ordinarily will not provide the basis for ordering removal of or intervention with an urban tree." [15] Even before the tree was pruned recently, the same finding would have been reached. It is likely that the amount of debris falling on the tennis court has diminished since the tree was pruned. No orders will be made on this element of the application." 1. Unsurprisingly, having received this guidance from Galwey AC, Mr Golden did not include dropping of leaves and flowers in this application. However, there is also no element of the Trees Act which provides remedy for obstruction of sunlight to gardens and yards. Under Pt 2A of the Trees Act, orders may be made when hedges severely obstruct windows of a dwelling, but not as a result of shading by individual specimen trees. 2. Nonetheless s 10(2) of the Trees Act has been engaged by the tilted bushrock, so orders will be contemplated. In making an order, the Court considers relevant matters in s 12 of the Trees Act. Discretionary matters – s 12 1. The tree is located close to the common boundary (ss 12 (a) of the Trees Act). 2. Tree management at Ku-ring-gai Council (Council) is conducted under the control of the State Environmental Planning Policy (Vegetation in non-rural areas) 2017 and detailed in Ku-ring-gai Development Control Plan 2021. Under these controls, interference with the Jacaranda would otherwise require permission from Council. The only exemption relevant here is for minor pruning of branches up to 50mm diameter. Though Council stipulates that works must comply with Australian Standard, AS 4373:2007 Pruning of amenity trees, the pruning works undertaken by the applicant that I observed on the Jacaranda did not comply to this standard. Ku-ring-gai Council tree managers are also quite particular about permission being received from tree owners prior to any works being undertaken (ss 12 (b)). 3. Jacaranda trees respond very poorly to pruning. Their natural form is to develop broad weeping branches, but when they are subject to excessive or poor pruning, the trees normally respond with vigorous relatively vertical (epicormic) growth which often compromises the tree's long-term form. Even exposure of branches to high light levels may initiate such growth. Given that trees gain their sugars from their leaves, any pruning is not in their interest (ss12 (b2)). 4. Though the applicant notes no benefits that the tree provides, Mr French says it contributes to his amenity and to his landscaping (ss12 (b3)). 5. The tree's roots are likely to stabilise the soil above the walls. Being located downslope in the respondent's yard, runoff sheds near the tree base onto the applicant's land. Following a complaint from Mr Golden, a council engineer inspected the site and recommended that a swale drain be installed along the top of the boundary wall to direct the water away. While Mr Golden claimed that this installation would require severing of the tree roots, it could in fact be undertaken without damaging the tree. In any case, this was a council recommendation, not a requirement (ss12 (g)). 6. Subsection 12 (i) covers anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. The 'Age and nature of the structure' is one such relevant consideration, as the wall is over 50 years old and has clearly deteriorated because of its age. A certain amount of wear and tear is expected to arise with any structure over time, and the Court considers this when determining the extent to which a tree may or may not have caused the alleged damage. Conclusion 1. Based on the evidence adduced, I have reached the following conclusions: 1. Mr Golden claimed for reimbursement of the cost of his Land and Environment Court application. Commissioners do not have powers to order such costs. Claims for items such as these require lodgement of a Notice of Motion to the Court, which is heard before the Registrar, or a Judge. 2. The tree has recently been pruned poorly, subjecting it to the likelihood of vertical epicormic response growth. Pruning of Jacarandas should be minimised, and their natural canopy form maintained. 3. A Jacaranda root has displaced a stone in the applicant's retaining wall. This has caused minor damage to the wall, and s 10(2) of the Trees Act is thus engaged. 4. Having considered s 12 of the Trees Act, there are many benefits and environmental services that the tree provides, regardless of whether it was self-sown or planted, or is native or exotic. The 'age and nature of the structure', from ss 12 (i), was deemed to be important. 5. I am not satisfied that the function or appearance of the bushrock wall has been reduced in any substantive way, as all rocks near roots, including that which had tilted, remained secured in the wall. At [166] of Robson, his Honour says, "…damage to the surface of the land, such as raising a mound of earth or drying soil without consequential damage to other property would not be covered by the Trees (Disputes Between Neighbours) Act 2006." Considering the age and nature of the structure, and allowing for normal wear and tear, I am not satisfied that the wall has suffered consequential damage. It remains entirely fit for purpose. 6. The words of Moore SC and Hewett AC from [32] of Wisdom v Payn [2011] NSWLEC 1012 are pertinent here, if one replaces fence with retaining wall, and Wisdoms' with Golden's: "However, the present displacement of the fence is not merely minor but is entirely negligible. It in no way impacts on the functionality of the fence or, in any discernible fashion whatsoever, impacts on the outlook from the Wisdoms' property. The damage to the fence is a classic example of what would be a proper application of the oft-cited legal maxim, de minimus non curat lex – the law is not concerned with trifles. As a consequence, although we are satisfied we have jurisdiction to make an order if we were minded to do so, as a matter of discretion, we decline to do so." Orders 1. The Orders of the Court are; 1. The application is refused. …………………………. 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: 18 November 2022