Land and Environment Court of New South Wales CITATION : Moase v MacMahon [2010] NSWLEC 1123 APPLICANTS Bernard Moase PARTIES : Joan Moase RESPONDENT Margaret MacMahon FILE NUMBER(S) : 20162 of 2010 CORAM: Fakes C TREES (NEIGHBOURS) :- Injury to persons KEY ISSUES: Damage to property Compensation Removal of tree refused Trees (Disputes Between Neighbours) Act 2006 LEGISLATION CITED: Threatened Species Conservation Act 1995 Environment Protection & Biodiversity Conservation Act 1999 Robson v Leischke [2008] NSWLEC 152 Immarrata v Mourikis [2007] NSWLEC 601 CASES CITED: Dooley v Newell [2007] NSWLEC 715 Clune v Falconer [2008] NSWLEC 1458 Barker v Kyriakides [2007] NSWLEC 292 Yang v Scerri [2007] NSWLEC 592 DATES OF HEARING: 20/05/2010 DATE OF JUDGMENT: 20 May 2010 EX TEMPORE JUDGMENT DATE : 20 May 2010 APPLICANT Bernard Moase [litigant in person] Joan Moase [litigant in person] LEGAL REPRESENTATIVES: RESPONDENT Mr R Macaulay, solicitor JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes C 20 May 2010 20162 of 2010 Moase v MacMahon 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 Kimberley Grove Rosebery against the owner of a tree growing at the rear of a property in Ripon Way Rosebery. 2 The applicants are seeking the removal of several large branches that overhang their property as well as the pruning of smaller, generally horizontal lateral branches that may grow into their property. 3 These orders are sought as they contend that branches that may fall from the tree may cause injury to any person using the area of lawn beneath the tree. 4 They also contend that the removal of overhanging branches will reduce the quantity of fruit and leaves that fall onto their property, particularly at those times when flying foxes feed in the tree. They are concerned about the risk of injury associated with the physical exertion of having to constantly maintain the back lawn, especially when the bats are present. 5 The applicants are also asking the Court to order the installation of a root barrier across the northern side of their lawn. They are seeking this order as they contend that roots from the tree have (or at least one root has) caused damage to four sections of concrete paving on the north-western corner of their pool, to a low brick wall adjacent to this paving, and to their driveway. 6 With respect to the contended damage they are seeking compensation for the removal and replacement of the concrete paving, a section of the driveway and the low brick wall. 7 They also seek that the respondent pay for the installation of the root barrier, for pruning the tree, the cost of a report from a botanist and other costs associated with the service of the tree application and the preparation of an affidavit. The total estimate for the compensation claim is $31,548. 8 With respect to the awarding of costs associated with the making of an application, Commissioners do not have the jurisdiction to award such costs so orders cannot be made in this regard in these proceedings. 9 The tree is a mature and healthy Ficus macrophylla (Morton Bay Fig). The applicants and some of their neighbours who attended the on-site hearing suggested that it was planted by a previous owner of the respondent's property and is perhaps some 70 years old. The respondent considers it to be older. The fact is that it is a reasonably old and well-established tree. 10 The tree is growing at the northern end of the respondent's property within 1-2 metres of the dividing fence with the applicants. The majority of the canopy overhangs the respondent's property. 11 It is a healthy specimen with less than 1% dead wood. It has extension growth consistent with a normal healthy specimen of its age. 12 There were some bark inclusions at the base of a large branch growing to the northwest and in parts of the trunk however there were no signs that any of these were structurally unsound and a number had welded together. The upper sections of the canopy appeared to have sound and well-formed attachments, including a large central section that the applicants wish to have removed. 13 The main basis of the applicants' application with respect to injury to persons is that in the 25 years that they have lived there, some 6 or 7 branches have fallen from the tree onto the lawn, apparently without warning. The application shows several of these branches. They are some 2-3 m long. The last occasion was sometime in 2009. 14 It was very difficult to see from where in the canopy the branches had come from although I did note two possible points of previous failures but these appeared to be of some age. 15 The applicants stated that they have large family gatherings on the lawn about twice per year and they are fearful that someone may be injured should a branch fail. 16 The remedy they are seeking would remove a substantial section of the tree from well-within the respondent's property. 17 A significant volume of the material in the application related to the fact that fruit bats/ Grey-headed Flying Foxes feed on the tree when the fruit is ripe. The application included diarised details of the weight of bat droppings and fallen fruit that the applicants say they must contend with when the bats are present. There are also many references in the application to the potential risk of contracting the Hendra and Nipah viruses thought to be harboured by bats. A number of the neighbours who attended the hearing also voiced these concerns. 18 In Robson v Leischke [2008] NSWLEC 152 at 189, Preston CJ states that " the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it as habitat." 19 Similar findings have been made in Immarrata v Mourikis [2007] NSWLEC 601, Dooley v Newell [2007] NSWLEC 715 and Clune v Falconer [2008] NSWLEC 1458. This is relevant, in this matter, to the issue of the bats. Bats are not trees and therefore the Court has no jurisdiction to make orders for the interference with a tree for the reason that bats or any other creatures may visit it. 20 The issue of leaf and fruit drop is one that the Court has considered on many occasions. With respect to the concerns raised by the applicants, the Trees (Disputes Between Neighbours) Act 2006 is restricted to actual or potential actual damage being caused to property or injury to persons. In Robson v Leischke [2008] NSWLEC 152 at 56, Preston CJ states that mere encroachment is not damage, in 169 that damage must be proved and in 171 annoyance or discomfort to an applicant by such things as leaves and flowers blown onto their property from their neighbour's land is not "damage to property on land' within s7 of this Act unless they also cause damage to property on the neighbour's land. 21 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. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide. I see no reason to depart from the consistent approach that the Court has taken in this regard in this matter and no orders will be made for any intervention with the tree on the basis of leaf and fruit drop. 22 Turning to the alleged damage. Some three years ago, the applicants installed a spa on the northern side of their pool. This is a distance of some 25 metres or so from the tree. Excavation for the spa revealed a root of approximately 100 mm in diameter growing roughly in the same direction as a storm water pipe located under two concrete slabs on the far north-western side of the pool. 23 A section of the root was sent to Mr John Ford, a botanist who specialises in root identification. He identified the root as Ficus macrophylla. The closest Morton Bay Fig is the one subject to this application. 24 It appears from evidence given on site that prior to the discovery of the root, there was some subsidence and minor cracking of the slabs immediately above the root and some subsidence and cracking of slabs to the south. It was also noted that there was some separation between the northern end of the concrete slabs and a single brick wall some 4 courses high. This brick wall retains the soil between the concrete pool surrounds and a lower paved area near the rear of the house. 25 The root was subsequently cut and a large section removed to enable the installation of the spa. 26 The applicants assume that the exposed root is the cause of the damage to the concrete slabs and to the low brick wall. 27 At the on-site hearing, the end of the severed root was clearly visible. There has been very little adventitious root growth, an indication that the root is unlikely to increase in diameter by very much, if at all. . The root is approximately 250-300 mm below the concrete slab. 28 It was noted that the slab is approximately 80-100 mm thick with no steel reinforcement and of a quality that is unlikely to meet today's standards. It is laid on a mixture of fine natural sand and building rubble. The pool and paving are thought to be at least 30 years old. 29 The main area of subsidence is around an inlet to the storm water pipe adjacent to a brick wall near the garage. This inlet collects water running off the pool surrounds. 30 It was drawn to my attention by the respondent's solicitor that the low brick wall is plumb and the separation between the slab and the wall is no greater near the exposed root than near similar walls elsewhere on the property. 31 The other damage said to have been caused by the tree is the lifting of the western end of the northern side of the most southerly of the concrete slabs that form the applicants' driveway. The edge is lifted by about 10-12mm. 32 The applicants contend that the fig root has caused this. However, there was no evidence of any root and no excavation had been undertaken to prove the assumption. 33 The remedy sought by the applicants with respect to the damage they say has been caused to their property by tree roots is the installation of a root barrier and the removal and replacement of the damaged structures. 34 The applicants are also concerned about the future damage a large branch may do to the timber dividing fence between them and the respondent. A large branch is touching the top of the fence but at this stage there is no displacement. The remedy they seek is the removal of this branch. 35 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 applicants' property, or is likely to cause injury to any person. 36 In a guidance decision given in Yang v Scerri [2007] NSWLEC 592 at para 14, the Court determined the following meaning of 'the near future'. Ordinarily, the near future would involve a time period extending from the date of determination of the application to 12 months. After 12 months, it would be difficult to describe a period as being " in the near future " or being close in time to the date of determination of the application. We say "ordinarily" because there may be, in the particular circumstances of the case, reason to adopt a longer period than 12 months. The adoption of a 12 month rule of thumb period means that in order to satisfy the third test in s 10(2)(a), the tree concerned would need to be likely to cause damage to property within a period of 12 months after the date of determination of the application. If it is not likely to do so within that period but rather in a longer period, the third test in s 10(2)(a) could not the satisfied and the Court would have no power to make an order in relation to the tree (assuming that no other test under s 10(2)(a) or (b) is satisfied). This would not prevent a further application being made in the future if the tree concerned becomes likely, in a future period beyond 12 months, to cause damage to property. 37 This is relevant to the applicants' concerns about the dividing fence, and for the reason that tree is unlikely to cause damage to the fence 'in the near future', no order will be made for the removal of the particular branch. 38 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 contributes to the local ecosystem and to biodiversity. The Grey-headed Flying Fox is listed as a Vulnerable species in Schedule 2 of the Threatened Species Conservation Act 1995 and in the Commonwealth Environment Protection & Biodiversity Conservation Act 1999. Clearly this is a food tree for this species. (e) The tree contributes to the scenic value of the land on which it is growing and to the locality. The respondent values the tree for the privacy it affords her. (f) The tree has value to public amenity. It is located on a ridge and is quite visible to surrounding properties. Both South Sydney Council and the City of Sydney Council have refused permission to remove the tree as they consider the tree to be of value to the community. (h) Anything other than the tree that may have contributed to the damage and any steps taken by the parties. With respect to the concrete slabs and the low brick wall, as already stated, these structures and at least 30 years old and the section of concrete closest to the exposed root has no reinforcing. No other section of the root or any other roots have been exposed in the vicinity of the alleged damage to the driveway and other slabs. The applicants were given approval to prune the tree by the former South Sydney Council and this was done. The respondent sought permission to have the fig tree removed along with many other trees when she moved into her property some ten years ago. This was evidently because the garden was very overgrown at the time. Permission was given to remove the other trees but not the fig. 39 Returning to s 10(2) and the elements of the application before the Court. 40 With respect to the potential risk of injury, whilst the evidence includes photographs of branches that have fallen from the tree, there is no reported injury to any person on the applicants' or any other property. In the 25 years that the applicants have owned the property, they say some 6 or 7 branches have fallen. Those that have fallen have been substantially than the majority of the branches the applicants seek to have removed. The probability, i.e. the likelihood, of injury arising from a branch falling from the tree is very low, and in my opinion, the remedy sort by the applicants far exceeds the risk. 41 There are no signs in the tree that would lead me to conclude that the failure of branches is likely under normal conditions or imminent. For these reasons, that element of the application is dismissed. 42 With respect to the damage, the applicants were apparently not concerned enough with the cracking and subsidence of the slabs before the installation of the spa and the subsequent discovery of the root, to investigate the cause of the cracks and subsidence. 43 Whilst there is possibly some contribution of the root to the damage in the slabs directly above the exposed root, there is no evidence to link the cracking in the other slabs to the root. As stated previously, the age, condition and composition of the slabs, as well as the substrate on which they were laid, would also have contributed to the damage. It was pointed out that the rectification works sought by the applicants would result in a substantial improvement of those structures. This was acknowledged by the applicants. 44 It was pointed out by the respondent's solicitor that the rear lawn and several structures, including a substantial brick wall, garden edging and other paving, between the tree and the exposed root showed no displacement. 45 There is no evidence to link the small uplift in the driveway with the fig tree. 46 In conclusion, I find that s 10(2)(a) is satisfied on the balance of probability only for the two most northern of the concrete slabs directly above the exposed root. Therefore the jurisdiction is enlivened and the Court may make an order with respect to that element of the application. I find there is insufficient evidence to satisfy s 10(2) with respect to the other elements of the application. If I am wrong in this, I am not convinced that the risk of injury to persons or the other damage alleged to have been caused by the tree is serious enough to warrant intervention with the tree and as a matter of discretion under s 9, no such orders would be made. 47 The Orders of the Court are: 1. The application for the pruning of the tree and associated compensation is dismissed. 2. The application for the installation of a root barrier and the associated compensation is dismissed. 3. The application for repair of the driveway is dismissed. 4. The application for the replacement of the low brick wall is dismissed. 5. The application for reimbursement of the botanist's fee is dismissed. 6. The application for the replacement of the concrete slab pool surrounds is allowed in part. 7. The applicants are to obtain 3 quotes for the removal and replacement of the most northerly section of concrete at the north-western end of the pool between the high brick wall of the garage and the excavated area. This section is composed of 2 slabs and is approximately 4-5 square meters in area. It includes the section closest to the wall with the storm water inlet and the section closest to the excavation. The quotes are to show the cost of replacing the sections without reinforcement. The respondent is to pay 50% of the cheapest quote. If the applicants wish to have the concrete reinforced, this must be a separate item on the quotes. 8. The three quotes are to be provided to the respondent directly or through her solicitor within 21 days of the date of these orders. 9. The respondent, either in person, or through her solicitor is to notify the applicants of the choice of quote within 14 days of the receipt of the quotes. 10. The respondent is to pay the applicants the amount specified in order 7 within 21 days of the receipt of a tax invoice for the completed works. 11. The works are to be completed within 6 months of the date of these orders otherwise orders 7-10 lapse. ______________________________ 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.