Land and Environment Court of New South Wales CITATION : Heggs v Carter & Morris [2010] NSWLEC 1247 APPLICANTS R and A Heggs PARTIES : RESPONDENTS Mr B Carter Ms A Morris FILE NUMBER(S) : 20353 of 2010 CORAM: Fakes C KEY ISSUES: TREES (NEIGHBOURS) :- Future damage Injury to persons LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Yang v Scerri [2007] NSWLEC 592 DATES OF HEARING: 25/08/2010 DATE OF JUDGMENT: 25 August 2010 EX TEMPORE JUDGMENT DATE : 25 August 2010 APPLICANTS Mr R and Mrs A Heggs [litigants in person] LEGAL REPRESENTATIVES: RESPONDENTS Mr B Carter [litigant in person] Ms A Morris {litigant in person] JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes C 25 August 2010 20353 of 2010 Heggs v Carter & Morris JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Mayfield against the owners of a tree growing on an adjoining property. 2 The applicants are seeking the removal of the tree as they contend that it could cause damage to their property and may cause injury to people. 3 The tree is a mature Schinus areira (Pepper Tree) growing in the north-western corner of the respondents' property. The tree appears healthy with very little dead wood in evidence. 4 It is clear that the tree has been substantially pruned in the past as there is a large pruning cut on the north-western side of the tree close to the boundary with the applicants. This may have been a secondary stem. There are small fungal fruiting bodies on the surface of the old wound that are likely to be those of a saprophytic fungus. The fruiting bodies are not those of the common wood decay fungi. There are no signs of decay or other structural defects in the trunk or canopy of this tree. 5 The applicants purchased their property, a villa unit at the rear of the unit block, about 5 years ago. According to the applicants, as a condition of their purchase of the property, the real estate agent organised for the removal of a large branch that was overhanging the dwelling. Another smaller branch was shortened. The evidence of the pruning cuts remains on the tree. 6 The respondents purchased their property about 13 months ago and so were not the owners when this pruning was undertaken. 7 At present, less than 5% of the canopy overhangs the applicants' property. However, they remain concerned that future damage may occur to their property. 8 The applicants' unit is located approximately 2m from the tree in the north-eastern corner of the property. The rear and side passages between the adjoining properties are paved. 9 The applicants are concerned that the roots of the tree may cause future damage to the pathways, the slab on which the house is built, and the sewer that runs along the north-eastern boundary. 10 The applicants stated that so far no damage had occurred to any of these structures, nor had there been any problems with the sewer. I saw no cracking or displacement of the paving or of the brick walls of the house. 11 I was shown the northern end of a panel of the Colorbond fence that divides the applicants' and respondents' properties. This was upwardly displaced at the post. The applicants contend that a root of the Pepper Tree has caused this. 12 The applicants say they noticed this about 12 months ago when the respondents drew it to their attention. While no claim regarding the fence is raised in the application, it was raised during the hearing. 13 I was shown part of the base of the tree/ woody root adjacent to the end post of the fence. However, it was also clear that there had been recent construction work in the same area. A new concrete retaining wall has been installed as part of a commercial development to the rear of the applicants' property. This wall now forms the dividing structure between the applicants and their neighbour to the rear. 14 While the root may have contributed to the uplift, it was inconclusive as to what impact the concrete works had had on the post. It was noted that the fence was functional and apart from the displacement off horizontal at the far post, there was no material damage to the fence. It was also noted that other panels and posts of the same fence, some distance away from the tree, were displaced off vertical and horizontal alignment. 15 The part of the dwelling over which part of the tree hangs is the main bedroom, hence the concern over possible injury. The applicants are concerned that branches may fall from the tree onto the roof above that room. However, they stated that in the five years they had lived there, nothing other than small elements of dead wood had fallen from the tree. 16 Of concern to the applicants is that the commercial development on the adjoining property may have damaged the roots of the tree. They are also concerned that the construction of their own house may have cut roots. This concern appears to be the result of an inspection and report undertaken, on behalf of the applicants, in April 2010 by Mr Stephen Williams, an arborist. 17 In his letter to the applicants he states: As your tree is 1.8 metres from the tree, and the footing for the wall opposite extends to the tree base, it appears that the tree could not have been adequately protected with a Tree Protection Zone, during construction of your dwelling and the adjacent wall, and that root damage may have occurred. The symptoms of root damage may not materialise for some time. It is considered that this tree should have been removed for the development, and replaced elsewhere on the property. Due to its proximity to your property, the tree may cause infrastructure damage to your property over time, and should be removed. 18 This report appears to have been sought in response to concerns raised by the respondents regarding comments made by the applicants with respect to the commercial development and an alleged arrangement between the developer and the applicants about the tree. 19 After a series of enquiries directed to Newcastle Council and the developer's Principal Certifying Authority, the respondents found that the council deemed the tree to be significant and had imposed tree protection measures as conditions of consent for the development. The conditions were in accordance with an arborist's report prepared by Redgum Horticultural Consultants in 2008. The respondents tendered the report and the conditions of development consent as evidence. 20 Mr Williams was present at the on-site hearing and agreed to be bound by Division 2 of Pt 31 of the Uniform Civil Procedure Rules and the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules. He believes that 75% of the root zone of the tree has been compromised. This comprises 25% due to the construction of the applicants' dwelling, 25% as a result of the recent commercial development and 25% due to a concrete block retaining wall of a disused car yard at the rear of the respondents' property. 21 When questioned by the respondents, Mr Williams agreed that some impact of root damage would be likely to show up in the canopy after five years. As stated previously, there is very little dead wood in this tree. 22 The respondents state that tree protection measures were in place during the construction of the commercial premises. There is no evidence to disprove this contention. 23 We viewed the tree from the now completed development site. The area beneath the tree is paved however, there is no evidence to show how the pavement was installed and what impact may have occurred as a result of that construction. The view was undertaken so that the visual prominence of the tree could be seen as well as the value of the tree to the respondents as a screen from the commercial development. 24 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 25 As the applicants are principally concerned about future damage, the Court has consistently applied the guidance direction published in Yang v Scerri [2007] NSWLEC 592, that puts the near future as being a period of 12 months from the date of the determination. I consider this time frame to be appropriate in this matter. 26 The applicants have not produced any evidence that the tree is likely to cause future damage to their property. As stated previously, there are no signs of displacement or cracking of any paving or brick work in close proximity to the tree. There has been no reported damage to the roof or the sewer. 27 Notwithstanding what may have happened on the portion of the root zone potentially affected by the commercial development, there are no signs of instability or signs of dieback or decline that could be associated with the construction of the applicants' dwelling more than 5 years ago. 28 The possible incursion into the root zone of the property behind the respondents' appears to have occurred many years ago and there is no visible impact of this on the tree's health or stability. 29 With respect to potential injury, there is very little canopy overhanging the tree and virtually no dead wood. Therefore the risk of a branch failing and causing injury to any person is very remote. Even in the unlikely event of the entire tree failing, the likelihood of anyone being injured is also remote given that most of the canopy overhangs the rear of a disused lot. The weight of the canopy is such that any failure, remote as it is, would not be in the direction of the applicants' or respondents' dwellings. 30 Returning to s 10(2), I am not satisfied that the tests of future damage or likely injury are satisfied and therefore there is no jurisdiction to make any orders with respect to these elements of the application. 31 While there may be a contribution of the tree to the displacement of the fence and thus the satisfaction of one of the tests under s 10(2) with respect to the tree causing damage to property, with the discretion afforded by s 9 of the Act, no orders will be made with respect to the fence as there is no material damage to the fence and it is fully functional. As stated previously, other sections of the fence well away from the tree are also displaced. 32 As a result of the forgoing, the Orders of the Court are: 1. The application to remove the tree is dismissed. ___________________________________ J Fakes 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.