Land and Environment Court of New South Wales CITATION : Tou and anor v Maskiney [2010] NSWLEC 1068 APPLICANTS Iat Sang Tou PARTIES : Hilda Hing Hing RESPONDENT Charles Maskiney FILE NUMBER(S) : 20919 of 2009 CORAM: Fakes C TREES (NEIGHBOURS) :- Damage to property KEY ISSUES: Compensation Injury to persons LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 22/03/10 DATE OF JUDGMENT: 22 March 2010 EX TEMPORE JUDGMENT DATE : 22 March 2010 APPLICANT LEGAL REPRESENTATIVES: Ms Helen Sin (solicitor) RESPONDENT Ms Susan Barry-Cotter (solicitor) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes C 22 March 2010 20919 of 2009 Tou v Maskiney 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 Mr and Mrs Tou of 28 Starkey Street Forestville against the owner of a tree growing at 30 Starkey Street. The owner of that property is Mr Maskiney. The applicants were represented by Ms H Sin, solicitor and the respondent by Ms S Barry-Cotter, solicitor. 2 The applicants are seeking the removal of the tree, a mature Casuarina cunninghamiana (River She-Oak), at the owner's expense, as they contend that the tree has caused damage to their property and could be a risk of injury to persons. They are also seeking compensation for a number of items. 3 The damage, said to have been caused by the roots of the tree, is the blocking of the applicants' sewer and cracking and lifting of their concrete driveway and pathway. The risk of injury is the risk of tripping on a raised section of driveway and on exposed roots in the front lawn. 4 The original application (exhibit A) seeks the ordering by the Court of: removal of the tree, the payment of a total of $8,628.40 in compensation and for the respondent to pay for the clearing of the sewer after the removal of the tree. After the directions hearing, the applicants lodged a revised claim for a total of $21,036.50 (exhibit B). Both claims include costs for the fee to file the application and the revised claim includes $4,400 in legal fees. Commissioners do not have the jurisdiction to award such costs. Similarly, both claims include a total of $490 for an arborist's report and a quotation fee. These are costs associated with the making of the application and will not be awarded. It should be noted that the onus is on the applicant to prove the connection between the damage and the tree. 5 The additional claims are an increase of about $2,800 for concreting and, rather than the clearing of the sewer, the applicants are now seeking the removal and replacement of about 25m of sewer pipe (about $4800) and the installation of a root barrier ($2000). 6 The tree is a mature and healthy River She-Oak. According to the applicants, this was planted in or about 1994 after the construction of two dwellings on the respondent's property. Ms Barry-Cotter stated that the tree species and location were required by Warringah Shire Council as a condition of consent for the development, and that the species was not her client's choice. 7 The tree is located about 1.5m to the south of the side front boundary fence. It appears from the sewer inspection points on both the respondent's and the applicants' properties that the sewer runs just to the west of the tree in a north to south direction. At the inspection point in the driveway of the applicants' property, about 3m to the north of the tree, the sewer then turns at 90 degrees and heads in a westerly direction. The next inspection point near the applicants' kitchen is about 25m away. 8 The applicants contend that since 2005, the sewer has been blocked at least twice and the respondent was notified and asked to take action about the tree. The blockages were said to have occurred in the section between the boundary fence, the inspection point in the driveway and some metres to the west. The applicants say that the plumber used a camera to identify the blockage however, no report from the plumber detailing the results of the CCTV inspection and the location of the blockages was submitted in evidence. This is relevant as the revised claim is for the replacement of 25m of sewer pipe from the boundary to the kitchen. It is also noted that the roots found in the sewer were not identified as being from any particular tree; the plumber's invoices simply refer to 'tree roots'. 9 The revised claim includes the replacement of the sewer and the installation of a root barrier along the property line. This is because there are other trees (not trees subject to this application) growing in the respondent's property along the dividing fence. 10 It should be noted that the applicants' house was built in 1953 and it is assumed that the earthenware sewer pipes date from this time. 11 The concrete driveway is probably of a similar vintage. It consists of two concrete strips. The most southerly of the two strips abuts the dividing fence and runs approximately 30m from near the public footpath to a side gate. The northern strip extends only to the front south-eastern corner of the house, just past the front verandah. The strips are about 800-900mm wide with a grass strip between. Between the public footpath and the ends of the concrete driveway strips is an apron of mostly asphalt. Leading from the northern driveway strip in a north-westerly direction is a concrete path leading to the front door. 12 It was clear from the inspection at the on-site hearing that there were many exposed surface roots and small suckers from the Casuarina in the applicants' property. It was clear that some of the lifting and cracking of the driveway and the pathway had been caused by these roots. However, it was also noted that the pathway and the driveway were cracked and lifted in other sections well away from the Casuarina and where no roots or suckers were seen. There were surface roots of the Casuarina visible in a triangular patch of bare soil between the pathway and the driveway. However, there were other large woody roots elsewhere in the applicants' front garden, most likely from the Liquidambar planted as a street tree at the front of the applicants' property. 13 The applicants contend that the entire driveway and footpath should be replaced. The quotes in exhibit B include extending the width of the driveway to cover the grass strip between the existing driveway strips and to seal a section of soil between the driveway and the pathway. They say this is necessary to remove or cover the exposed roots of the Casuarina. The new quotes appear to be for a driveway from the front of the property to the side gate at the rear of the house. 14 The respondent accepts that the tree has caused the damage to the driveway and has probably blocked the sewer. The respondent has agreed to remove the tree, subject to the decision of the Court, and has lodged an application with the council to seek permission to do so. The respondent has agreed to clear the sewer after the removal of the tree and to pay half the cost of replacing the concrete drive and pathway. The respondent has obtained a quote of $3700 plus GST for those concreting works. 15 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 applicant's property or is likely to cause injury to persons. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay. 16 The Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are: (a) The tree is wholly located on the respondent's property. (d) The tree would make some contribution to the local ecosystem and to biodiversity. (e)(f) The tree is one of a number of trees planted in the front yard of the respondent's property and whilst it does contribute to the scenic value of the land on which it is growing, and has some value to public amenity, its contribution is relatively small. (h)(i) Steps taken: The applicants have undertaken the clearing of the sewer and have notified the tree owner. Factors other than the tree: - see below. 17 Both the sewer pipes and the driveway are likely to be about 57 years old. However, it was noted by Ms Sin that had there been no trees planted, the sewer would not be blocked nor the concrete driveway lifted. However, there is both a community expectation and a council requirement for landscaping and the planting of trees to be conditioned when development consent is given. Even in the absence of trees, some wear and tear of the driveway and pathway would be expected after 57 years of use. 18 Returning to s 10(2), it is clear that the Casuarina has caused damage to the applicants' property, in particular, sections of the concrete driveway and the footpath. Due to the proximity of the tree to the sewer and the reported location of the blockage, it is reasonable, on the balance of probability, to assume that the Casuarina has contributed to the blockage. However, it is noted that the roots were not identified and there are other trees on the respondent's property (but not on the applicants' property). 19 The risk of injury is one of tripping on a raised section of driveway or on exposed roots however, given the size of the front yard, access to the house is not so restricted as to make such injury likely. 20 However, as one of the tests under s 10(2) has been satisfied with respect to the tree, the jurisdiction is enlivened and the Court can make an order under s 9. 21 Given the location of the tree and its relatively young age, there is nothing that could be practically or reasonably done to retain the tree and repair the damage and therefore the tree should be removed. The removal of the tree will lead to the death of roots from the tree within the applicants' property. However, I am not satisfied that the extent of works and compensation sought by the applicants is warranted as there is no proof that this tree has caused damage to the further extremities of the driveway, sewer and pathway. I also consider it unreasonable to allow compensation for concrete in addition to what currently exists. 22 Therefore the orders of the Court are: 1. The application to remove the Casuarina is upheld. 2. The respondent is to engage and pay for an AQF level 3 arborist to remove the tree. The stump and large roots ( > 100mm in diameter) are to be ground to a depth of 200mm below ground level. 3. This work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. 4. The applicants are to provide all reasonable access for these works to be carried out in a safe and efficient manner. 5. The applicants and the respondent's tenant are to be given at least 3 working days notice of these works. 6. These works are to be completed within 40 days of the date of these orders. 7. The applicant is to obtain 3 quotes for the removal and replacement of the 2 strips of driveway to the same width as the existing strips for a distance from the point where they abut the asphalt section at the front of the property to a point level with the forward edge of the front verandah. The quotes are to include the removal and replacement of the first 8 segments of pathway (each segment is separated by an expansion joint) commencing at the front of the property. 8. The quotes are to clearly itemise these elements and separate them from any additional works the applicants may wish to carry out. 9. The respondent is to pay the applicants 80% of the cheapest of those 3 quotes or the amount of $3,200 (that being 80% of the respondent's quote for the works), whatever is the least cost, within 21 days of the receipt of a tax invoice for the completed works. 10. These works are to be completed within 90 days of the date of these orders or else condition 9 lapses. 11. After the removal of the tree and prior to the replacement of the driveway, the respondent is to engage and pay for a plumber to clear the sewer between the inspection point on the respondent's property to the inspection point near the applicants' kitchen. _________________________ 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.