Land and Environment Court of New South Wales CITATION : Davison v Fernandas [2008] NSWLEC 1388 APPLICANT Raymond Davison PARTIES : RESPONDENT Sylvester and Celine Fernandas FILE NUMBER(S) : 20621 of 2008 CORAM: Thyer AC KEY ISSUES: Trees (Neighbours) :- Removal of trees, damage to property LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Barker v Kyriakides [2007] NSWLEC 292 DATES OF HEARING: 19/09/2008 EX TEMPORE JUDGMENT DATE : 19 September 2008 APPLICANT Raymond Davison, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Sylvester and Celine Fernandas, litigants in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 19 September 2008 20621 of 2008 Raymond Davison v Sylvester and Celine Fernandas JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: Mr Davison purchased his home at 10 Juliet Street Charlestown in February 2008. He was aware at the time of purchase that the garage and driveway on the western side of the property at the rear of the house were in poor condition, possibly damaged by tree roots. Three trees, each with trunk of about 0.4 m diameter were growing near the garage and driveway, one evergreen tree on Mr Davison's property and two Liquidambars on the adjoining property to the west, 70 Jennifer Street, Charlestown owned by Dr Sylvester and Mrs Celine Fernandas. A fourth, smaller tree was growing on Mr Davison's property further to the north, between the driveway and fence on the western side of his house. Mr Davison has removed the two trees growing on his property. 2 Mr Davison has constructed a new garage on concrete slab in place of the old. He has also removed the concrete driveway from the garage to the rear of his house, exposing three large tree roots. 3 Mr Davison claims the driveway and garage had been damaged by roots of the two Liquidambar trees that are growing immediately on the western side of the common boundary fence about 2 m north of the front of his garage. He concedes that his own trees may have caused some of the damage. 4 Mr Davison also claims that the falling and fallen seed capsules of the Liquidambar trees may be a danger to people. 5 Mr Davison is not claiming for past damage. His application is made to avoid future damage and injury by the Liquidambar trees. He seeks orders that the two Liquidambar trees be removed and their stumps ground so that they will not re-sprout. 6 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree which is the subject of the application before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person? 7 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? The trees 8 The two trees are Liquidambars (Liquidambar styraciflua) growing very close together and joined at the base. They are about 12 m tall with trunk diameters of about 0.4 m at breast height. Both trees have good health and structure with main central trunk, and though each is lopsided the two form a well balanced total. Branches of the trees overhang Mr Davison's property by up to 6 m, extending over the front of the garage and rear corner of the house. Dr Fernandas advised that the trees were present when they bought their property about 30 years ago. Damage 9 It seems clear from the photographs in Mr Davison's application that the garage floor slab had been lifted up to 50 mm by tree roots. However, it is not clear from the photographs, nor from our observations at the hearing which tree or trees those damaging roots were from as the roots had been removed. The roots visible under the north-western corner of the garage in the photographs appear to reduce in size as they go deeper into the ground near the Liquidambars, are very light coloured, and are only 1 m from the location of Mr Davison's own tree that he removed from beside the garage. On that basis, I consider on the balance of probability that the roots which damaged the garage were from Mr Davison's own tree. 10 I now turn to the damage to the driveway that is visible in the photographs. Three large roots with diameters of up to 90 mm were exposed by removal of the driveway slabs between the garage and the rear of the house, and these were visible at the hearing. The flat upper surface of these roots, and the appearance of the surrounding ground indicate that these roots were in contact with the underside of the driveway slabs and likely to be the cause of damage to them. These roots looked typical of Liquidambar roots, and their direction of growth indicated that they originated from the Liquidambars on the Fernandas' property. When Mr Davison tried at the hearing to excavate the roots to show that they were from the Liquidambars, we discovered that the roots had been cut at the edge of the driveway and had decayed at the cut end, indicating they had been cut some years ago. Further excavation revealed no connection between the roots under the driveway and the Liquidambar trees. However, on the balance of probability I am satisfied that these roots are likely to be from both of the Liquidambars and therefore the first test in s 10(2) (a) of the Act is met. 11 When Mr Davison dug along his side of the fence at the hearing, he found only one large root. That root grew from the base of the trunk of the southern Liquidambar, grew steeply downwards and was not be traced further. All other roots found between the fence and the driveway were less than 30 mm in thickness. On that basis I find that there are no large, live roots near the surface under the area of Mr Davison's driveway, so if he were to construct a new driveway it is not likely to be damaged by roots of the Liquidambar trees in the near future. Therefore the trees do not meet the second or third tests in s 10(2) (a) of the Act. Likelihood of injury 12 Mr Davison's concern regarding likely injury to people is limited to the fruits of the trees. There is no claim, and I made no observation at the hearing that indicated the trees have any health or structural problems that would cause branch or trunk failure, or injury by other means. 13 Mr Davison's written submission states that he has been hit by three of the spiky seed pods falling from the trees so far, that being in a period I take to be about six months to July 2008. I note that he states the seed pods hurt as they hit. 14 The fruits of Liquidambars are a light but firm, spiky ball of capsules 3-4 cm in diameter. The fruits persist on the tree for some time, falling after they have released their seed and dried. I accept that being hit on bare skin by the falling fruit may be irritating, but due to their light weight I do not find that they are likely to cause injury. On this basis I find that general injury from falling fruits is not likely and therefore does not meet the test in s 10(2) (b) of the Act. 15 Mr Davison specifically identified his concern that the falling fruit may cause injury to people by hitting them in the eye. Dr Fernandas' written submission states that he has checked the medical literature and there is no record of eye injury caused by falling Liquidambar seeds (fruit). Further, Dr Fernandas explained that such injury would only seem to be possible in contrived circumstances seeking that outcome. I prefer Dr Fernandas' medical evidence and investigations on this issue over Mr Davison's fears, and find that eye injury from falling fruits is not likely, therefore this issue does not meet the test in s 10(2) (b) of the Act. 16 Mr Davison's remaining concern was that people may be injured by rolling their ankle when stepping on a fallen fruit. He states that this is a particular concern for children because 'their weight isn't sufficient to crush the pod' (fruit). I note that his written submission states the Liquidambars overhang his garage and the only concrete area in his backyard, and he tends to spend a lot of the daylight hours working in the garage or around this area. I note that at the hearing, Mr Davison stated his intention to replace the damaged driveway, to keep that area clean of fallen fruit, and, in retaining the garden bed along the fence, fallen fruit could be swept into that garden. I also note that Dr Fernandas states that he and his wife with their two children under four years of age lived in their property without injury from the tree, and that neither tenants of their house nor neighbours in Mr Davison's house have complained about the tree over the last 30 years. 17 On the basis that there is no history of injury caused by the fruits of this tree, that Mr Davison's concern is particularly for children, that he intends to keep the area clean of fallen fruit, and that he spends a lot of time in the garage or the driveway area; I find that he is able to supervise much of the use of the area by children, and minimise any risk of injury to people from stepping on fallen fruits. Therefore I find that injury from stepping on fallen fruits is not likely and this issue does not meet the test in s 10(2) (b) of the Act. Considerations 18 Although I am satisfied that the trees meet the first test in s 10(2) (a) of the Act with regard to having caused damage to the driveway, I am required to consider matters in s 12 of the Act before determining the application. 19 Under s 12 (d) of the Act, I find that the trees are likely to make a minor contribution to the local ecosystem by providing food and shelter for various fauna. 20 Under s 12 (e) of the Act, I find that the trees are a significant landscape element in both the Fernandas' and Mr Davison's properties, providing an attractive visual feature. I note that the trees are particularly well located to provide summer shade to Mr Davison's garage and the area of driveway in front of the garage; areas that he claims are well used. Also, as the trees are visible from surrounding properties and streets in which there are few trees, the trees contribute to the scenic values of the local area. 21 Under s 12 (f) of the Act, I find that the trees provide intrinsic value through local climate amelioration, oxygen production and carbon sequestration. 22 Under s 12 (g) of the Act, I note the trees are on the downhill side of Mr Davison's driveway. That driveway appears to be on filled land without any retaining wall, so the trees may be helping to stabilise the land under the driveway. 23 Under s 12 (h) (i) of the Act I note that Mr Davison has removed two trees that were growing on his property, and that one of those was most likely to have caused the lifting of his garage. I also note that the roots of the Liquidambar trees that appear to have caused damage to the driveway have been cut in the past, and therefore similar damage is not likely in the near future. 24 Under s 12 (i) (ii) of the Act I note that at the hearing Mr Davison advised that he intended to prune off a few branches of the trees that extended close to his house. That pruning would reduce the number of fruits that are likely to fall onto his property. I also note that Mr Davison could exercise his common law rights to trim the Liquidambar trees back to the boundary to remove overhanging branches and reduce fruit fall into his property. Further, Dr and Mrs Fernandas' written submission stated that they would allow Mr Davison to cut the trees, and they confirmed at the hearing that they would allow Mr Davison to remove the trees at his cost. 25 Under s 12 (j) of the Act I note that Mr Davison and his family have only lived at their property since Autumn 2008, and have not yet been there through a full summer. Even if the tree had presented more likelihood of damage to their property, I would have been inclined to refuse orders for removal of the trees on the basis that they provide significant summer shade to Mr Davison's garage and driveway area, shade that he may yet appreciate more than any inconvenience or damage caused by the trees. 26 Also under s 12 (j) of the Act I note Mr Davison's understanding that he bought his property with the damage existing at the time of purchase, and that he does not intend to claim for damage that existed at that time. 27 Further under s 12 (j) of the Act, if I am wrong in my assessment that the trees are not likely to cause injury, I would apply the logic of the tree principle published in Barker v Kyriakides [2007] NSWLEC 292 which discusses the obligations of householders who have the aesthetic and environmental benefits of trees in an urban setting and the requirement that they may reasonably be expected to undertake property maintenance including the removal of tree detritus such as leaves, nuts, fruits or small branches falling from such trees onto their property. On that basis I would not order intervention with the trees as a matter of discretion. Conclusion 28 It is likely that roots of the Liquidambar trees caused damage to the driveway in the past, thus meeting the first test in s 10(2) (a) of the Act. However, those roots were cut a number of years ago and the trees are not presently causing any damage, and are not likely to cause damage to the new garage or driveway in the near future. Thus the second and third tests in s 10(2) (a) of the Act are not met. 29 With regard to injury, I found above that the trees are not likely to cause injury. Thus the test in s 10(2) (b) of the Act is not met. 30 After consideration of matters in s 12 of the Act, I find that the damage caused is not sufficient to order any intervention with the trees, and intend to refuse the application. Orders 31 The orders of the Court are that the application is refused. ___________________ Peter Thyer 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.