Land and Environment Court of New South Wales CITATION : Smith v Sheehan [2008] NSWLEC 1243 APPLICANTS Joyce and Claude Smith PARTIES : RESPONDENT Courtney Sheehan FILE NUMBER(S) : 20226 of 2008 CORAM: Fakes AC KEY ISSUES: Trees (Neighbours) :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 Yang v Scerri [2007] NSWLEC 592 CASES CITED: Barker v Kyriakides [2007] NSWLEC 292 Dooley & anor v Nevell [2007] NSWLEC 715 DATES OF HEARING: 13 June 2008 EX TEMPORE JUDGMENT DATE : 13 June 2008 APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENT In person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes AC 13 June 2008 20226 of 2008 Joyce and Claude Smith v Courtney Sheehan JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decsion in this application is the making of formal orders pursuant to s.9 of the Trees (Disputes Between Neighbours) Act 2006. These orders are not reproduced as part of this decision but a copy of the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Smith of 35 Pitt Street Coffs Harbour concerning a tree located on a property owned by Ms Sheehan of 33 Pitt Street Coffs Harbour. 2 The tree is a mature Corymbia torrelliana [syn. Eucalyptus torrelliana] or Cadaga. It is located at the rear of 33 Pitt Street and within 1 metre of the boundary fence between the two properties. It partially overhangs a cement block garage with a cement slab flat roof on which the clothesline is located. 3 The applicants are seeking the removal of the tree as they contend that the leaves and other debris falling from the tree create a mess on the garage roof which limits water draining off the roof. They are also concerned about the 'soot' from the leaves dirtying their washing. They also contend that the tree has caused cracking of the northern and western walls of the garage and damage to a concrete path. 4 The applicants are also seeking compensation for the repairs to the garage walls and the path. The amount sought is $2,267.00 that being a quote for the proposed works. They stated that they would only proceed with the claim for compensation if the tree was not ordered to be removed. 5 The respondent does not want the tree removed as she values the shade and amenity it provides for her and her family. 6 The tree was inspected from both properties. On the respondent's side it was noted that the tree is mature and in good health. It has co-dominant stems with a minor bark inclusion that is not considered to be significant defect and thus poses no significant risk of failure. There was no evidence of any abnormal reaction wood or any other superfluous growth that may indicate an internal defect. 7 In 2000, a trench was dug to a depth of 700 mm approximately 1 m from the tree and just inside the boundary line of the two properties for the purpose of installing a sub-soil drain. These works were done in accordance with a 1999 engineers report. This trenching severed the roots of the tree to that depth. 8 Photographs taken at the time and submitted by the respondent in an engineers report clearly show the drainage works and the existing cracking in the applicants' garage and the state of the concrete path. 9 Following the making of this application by Mr & Mrs Smith, Ms Sheehan engaged E.J. Armstrong, a civil engineer who prepared the 1999 report, to address the matters raised by the applicants. 10 Mr Armstrong's report gives a detailed analysis of the damage and the likely causes. The main conclusions from the report are that the tree is unlikely to be significant cause of the cracking of the garage but most likely to be a combination of the age and loss of durability of the structure, shrinkage of the concrete, deterioration of the metal formwork for the cement slab roof, water ingress and resulting expansion and contraction of reinforcing plus settlement and movement of the backfill in the sub floor area. 11 The observations from the applicants' property showed water (after morning rainfall) pooling on the north-western area of the garage roof. It was suggested that this was due to leaves blocking water movement. There were not many leaves on the roof at the time of the inspection and there appeared to be a sufficient gap between the slab and the alcinyte wall surrounding the roof. The pooling of water appeared to be due to an uneven surface. 12 From the roof and from the ground it was clear that some pruning of the tree to the boundary line had taken place. The remaining stubs were starting to produce epicormic shoots. This work had been carried out by someone engaged by the applicants but further pruning was stopped by the respondent. This matter will be dealt with later in this judgement. 13 The pathway in question was inspected. It was constructed in about 1972 making it at least 35 years old. It appears to be a thin layer (less than 50 mm thick) of concrete with a pebble finish. Mr Smith installed the path himself and said it was set on a layer of road base/ gravel and that no expansion joints were inserted. The pathway is in a cracked and deteriorated state but is rarely used as it is at the rear of the garage and between the 2 properties. 14 The cracks noted in the building were the same as those shown in the photos taken in 2000 and did not appear to be any worse. 15 Under s.12 of the Act a number of matters need to be considered. The relevant clauses in this matter are: (a) the tree is wholly located on the respondent's land; (d) although the tree is not a local species it does make a contribution to the local ecosystem and to biodiversity as the respondent stated that the tree is visited by birds and the occasional possum; (e) the tree makes a contribution to the scenic value of the land on which it is situated; (h)(i) the engineer's report details the many factors, other than the tree, that are likely to have caused the damage to the garage and the path. At the time of inspection it was also discussed that the land at the rear of the properties was once a paperbark swamp that has been substantially cleared and drained. The soils appear to be clay. The changes in moisture content associated with the changes in the landscape, possibly reactive soils and changes in moisture due to dry and wet seasons may have also exacerbated the structural deterioration of the garage. (h)(ii) the pruning of the roots by the respondent in 2000 will have limited any impact of the tree on the building. 16 Under s.10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicants' property. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. 17 In this matter I note the following; 1. As in Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, 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. This applies in this case. 2. The 'soot' from the tree is likely to be sooty mould, a fungus that grows in the secretions of sap-sucking insects that feed on the leaves. In this case it is not the tree itself but another organism that lives on the tree from time to time. To that end, this Act does not apply to these other organisms; see Dooley & anor v Nevell [2007] NSWLEC 715. 3. The applicants did not provide any evidence that the tree has caused the damage to the garage and path nor were they able to dispute the findings of the engineer. 4. The current sound structure and good health of the tree along with the 2000 root pruning are all factors that make it unlikely that the tree will cause damage in the near future. 18 As none of the issues in s.10(2) of the Act have been satisfied, the orders of the Court are that the application to remove the tree is refused. On the same basis, the application for compensation is refused. 19 This judgment does however record an agreement made between the parties at the on-site hearing. The respondent agreed to the applicants pruning branches that overhang their garage if the following points are adhered to: (a) The applicants are to engage an arborist with a minimum AQF level 2 qualification in arboriculture to prune the remaining stubs back to branch collars as well as remove other overhanging branches. (b) All work is to comply with AS4373:2007 Pruning of Amenity Trees – specifically, no spikes, no harm to be caused to the tree by the pruning, and all final cuts back to the branch collar. (c) The arborist must have all appropriate insurances and carry out the work in accordance with the WorkCover Code of Practice for the Amenity Tree Industry. (d) This work, including the removal and disposal of the prunings, is to be done at the applicants' expense with the approval of the respondent. (e) The applicants and the arborist are to give the respondent at least two weeks notice. The respondent agreed to provide access for these works to be carried out. (f) It was agreed on site by all parties that the boundary line would provide a guide to where the branches were to be removed but due to the position of the branches, some branches would be pruned to just beyond the boundary fence onto the respondent's property and others were to be pruned to a point within the applicants' property in an effort to achieve a reasonable compromise. It was also agreed that pruning overhanging branches would not prevent leaves blowing onto the applicants' property. (g) It was also agreed that these works may need to be carried out in subsequent years and that the points listed above are to apply. ___________________ J Fakes 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.