Land and Environment Court of New South Wales CITATION : Clemson v Freeburn [2010] NSWLEC 1298 APPLICANT Mrs J Clemson PARTIES : RESPONDENT Mrs S Freeburn FILE NUMBER(S) : 20630 of 2010 CORAM: Fakes C - Galwey AC KEY ISSUES: TREES (NEIGHBOURS) :- Consent Orders; damage to property, injury to persons LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 29/10/10 DATE OF JUDGMENT: 29 October 2010 EX TEMPORE JUDGMENT DATE : 29 October 2010 APPLICANT Mr M Robach [agent] LEGAL REPRESENTATIVES: RESPONDENT Mr M Mulock [solicitor] SOLICITORS Burston, Cole & Mulock Pty Limited JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes C Galwey AC 29 October 2010 20630 of 2010 Clemson v Freeburn JUDGMENT 1 COMMISSIONERS: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Penrith against the owner of trees growing on an adjoining property. The applicant was represented by her son-in-law Mr Robach and the respondent by her solicitor Mr Mulock. 2 The applicant contends that the trees have caused damage to her property and pose a risk of injury to persons. She also seeks compensation for the damaged property. 3 The orders sought by the applicant are the maintenance of the trees including the installation of a root barrier or the removal of the trees. These orders are sought in order to prevent further damage. The applicant would prefer the trees to remain. 4 The application arose as a result of an incident where a visitor to the applicant's property tripped on a raised section of concrete and threatened to take legal action against the applicant. The unevenness of the paving has also limited access to the site by the applicant's wheelchair-bound grandson. 5 The trees in question are located on the northern boundary of the respondent's property and are thought to have been planted about 35 years ago. The trees were not specified individually in the application but referred to collectively. As the relevant tests under the Act must be applied to each tree, the trees and their associated impacts were clarified on site. 6 Tree 1 is a Liquidambar styraciflua (Liquidambar) growing on the north-western corner of the respondent's property. The centre of the trunk is approximately 1.5m from the dividing fence. The damage said to be caused by this tree is the lifting of a concrete slab in the applicant's driveway and damage to the brickwork of a garden bed between the driveway and the dividing fence. 7 Mr Robach excavated a section of the garden bed to a depth of 300-400mm and exposed a number of woody roots. From their bark and smell we determined these to be from the Liquidambar. It was clear from the evidence before us and in the photographs included in the application that several of the roots had penetrated the mortar between the concrete footing of the garden bed and the lowest course of bricks. It was undisputed that at least one of these roots has caused the uplift of a corner of one of the slabs of the driveway by about 80-100mm. This lifted corner is the portion of the driveway mentioned in paragraph 4. 8 The applicant is seeking the installation of a root barrier and the repair of the brickwork of the garden bed and driveway. 9 To the east of the Liquidambar is a row of 9 Murraya paniculata. No damage or risk of injury could be attributed to these plants so no matters were pressed with respect to this planting. 10 Tree 2 is a mature Melaleuca quinquenervia (Broad-leafed Paperbark) (Paperbark 1) the base of which is approximately 150mm from the dividing fence. The issues arising from this tree are potential damage to a television aerial from the canopy of the tree, especially in windy weather, and the lifting of a pathway by the roots. Mr Robach also raised general concerns over the extent of leaf drop onto the roof and the need for regular cleaning of the gutters, something he said was beyond his elderly mother-in-law. 11 We observed the canopy to be close to the aerial and whilst we saw no actual damage, future damage is possible. With respect to the pavement, there is a very minor displacement of about 8-10mm of a join between sections of pavement on the applicant's property but not enough to limit wheelchair or pedestrian access at this stage. 12 Tree 3 is another Broad-leaved Paperbark (Paperbark 2). The base of this tree is approximately 400mm from the dividing fence. Immediately adjacent to this tree the concrete pavement has lifted and is a concern for wheelchair access. We accept, on the balance of probability that Tree 3 has contributed to the lifting of this part of the pavement. However, we note that some deterioration and displacement of the paving is likely to be due to its age (at least 40 years) and normal wear and tear. 13 There are two more Broad-leaved paperbarks on the respondent's property planted close to the dividing fence. During the hearing Mr Robach withdrew his concerns about these trees. Similarly, between trees 2 and 3 and to the east of tree 3 are plantings of Photinia sp. As with the Murraya, no orders are sought with respect to these shrubs. 14 During the course of the hearing, as the facts and circumstances became clearer, the parties agreed that the issues could be dealt with by consent orders. The parties were given leave for this. 15 However, in agreeing to Consent Orders we must be satisfied that the provisions of the Act are satisfied with respect to the trees subject to the application and the proposed orders are orders enabled to be made under s 9 of the Act. 16 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees 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. 17 We are satisfied that the roots of Tree 1 have caused damage to the applicant's property and that the installation of root barrier, as proposed by the parties, will not have a detrimental impact on the health or structural integrity of the tree. 18 We are satisfied that the canopy of tree 2 could cause damage to the applicant's aerial and that an order for pruning of a portion of the canopy of that tree is appropriate. 19 With respect to the uplift of the paving by trees 2 and 3 we accept that tree 3 has lifted the paving and tree 2 could cause future damage however, we consider that the installation of root barrier is not appropriate as to do so would cause an unacceptable impact on the stability of the trees. We agree that works to make the pathway wheelchair accessible are appropriate. 20 We are also satisfied that there is no conflict with any of the considerations under s12 of the Act. We are satisfied that the works and costs be shared between the parties as detailed in the Consent Orders. 21 We are satisfied the tests under s10(2) are met with respect to Trees 1, 2 and 3 and that the orders prepared by the parties are orders that could be made in accordance with s9 of the Act. 22 As a consequence of the forgoing, the Orders of the Court, by consent are: 1. The application is upheld in part. 2. The terms of the Orders are attached as Annexure A __________________________ J Fakes Commissioner of the Court __________________________ D Galwey Acting Commissioner of the Court ANNEXURE "A" Consent Orders By consent the parties agree:­ 1. The Respondent agrees to the pay to the Applicant within fourteen (14) days the amount of $1,500.00. 2. Upon receipt of the payment in paragraph 1 and not later than 7th December, 2010, the Applicant will undertake and be responsible for all rectification work to the front garden bed including the severing of the exposed tree roots within the garden bed and the application of Root Guard to those severed roots, the rectification or replacement of the front driveway and the rectification or replacement of the Applicant's damaged pathway between Paperbark 1 and Paperbark 2 on the Respondent's property identified during the Hearing. 3. The Respondent when requested by the Applicant will provide a skip bin which will be located upon the Respondent's property at 40 Evan Street, Penrith, to enable the disposal of debris from the works undertaken by the Applicant in paragraph 2 above. 4. It is noted that the parties have agreed that Michael Robach on behalf of the Applicant and Matthew Freeburn on behalf of the Respondent will remove an overhanging branch(s) impinging upon the t.v. aerial of the Applicant. Matthew Freeburn will provide the chainsaw and Michael Robach will provide the scaffolding to enable the removal of the branch(s). 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.