Foster & Anor v St Vincent de Paul [2012] NSWLEC 1227

Land and Environment Court New South Wales

Medium Neutral Citation: Foster & Anor v St Vincent de Paul [2012] NSWLEC 1227 Hearing dates: 13 August 2012 Decision date: 13 August 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application to remove Fig tree upheld; application to remove Brush Box dismissed. Catchwords: TREES [NEIGHBOURS] Damage to property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Ms L Foster and Ms M Schuler (Applicants) St Vincent de Paul Maitland/ Newcastle Diocese (Respondent) Representation: Applicant: Ms L Foster (Litigant in Person) Respondent: Mr C Parker (Agent) File Number(s): 20435 of 2012

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: The applicants purchased their property in Tighes Hill, Newcastle, about three years ago. Their dwelling adjoins the Sisters of Mercy Convent. At the rear of the convent building are several trees, two of which the applicants seek orders to remove. These orders are sought on the basis of preventing ongoing damage to their dwelling and associated services. The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act). 2The trees are a Ficus microcarpa var. Hillii (Hill's Fig) and a Lophostemon confertus (Brush Box). The trees are growing on the common boundary between the parties' properties to the north of the applicants' dwelling. While there is another Brush Box identified in the application form as Tree 3, it is not subject to the application. 3The application claim form includes an arborist's report prepared by Mr John Atkins of Treeology Pty Ltd. Mr Atkins was not present at the hearing but his written report was tendered in evidence. 4With the expertise I bring to the Court, I concur with Mr Atkins' assessment of the Fig tree in that it is a mature specimen with no obvious above ground structural defects, some severed roots and good overall health. The tree could be expected to live for many more decades and attain a size much larger than its current diameter of about one metre. The Brush Box in question has a large fig root pressing against the base if its trunk and a higher than normal quantity of dead wood in its canopy. This tree is somewhat suppressed by its neighbours, particularly the Fig. There were two quite long and large dead branches from the Brush Box caught between the Fig and the Brush Box. The majority of the dead wood was over the respondent's land. 5When the applicants purchased their property, several elements of it were in disrepair including a pathway on the northern side of the dwelling, the guttering and downpipes, boundary fence, the old earthenware sewer system and the north-western section of the house footings. Mr Atkins refers to a pre-purchase property inspection report (dated 21 October 2009) prepared for the applicants. He cites a statement in that report that indicates that cracks were present in the brickwork. The building report also recommended works to amend the drainage and guttering problems. While the first applicant said that they were well aware of the presence of the trees when they purchased the property, they were unaware of the full extent of the root systems, especially that of the Fig. 6The applicants have undertaken extensive renovations and repairs that include removing the pathway and fence, replacing the sewer and stormwater drainage, replacing guttering and downpipes, repairs to footings, and re-rendering of the dwelling. 7During these operations a trench was excavated along the northern boundary that effectively severed and removed sections of Fig and Brush Box roots. The works revealed the extent of the Fig roots throughout the applicants' backyard. Further preparatory works for the installation of a new masonry dividing fence have identified likely future problems involving fig roots. 8The Respondent does not oppose the removal of either tree nor does it oppose the alternative, and Mr Atkins' preferred recommendation, of the installation of a root barrier. The respondent's main concern is the cost of both options. 9In applications made under Part 2 of the Trees Act, the Court must not make an order unless it is satisfied that any of the trees subject to an application have caused, are causing, or could in the near future cause, damage to property or injury to any person. If any of these tests is met for any of the trees, the Court's jurisdiction to make orders is engaged. Section 9 of the Act gives the Court the power to make any orders it sees fit to remedy, restrain or prevent damage or injury. 10In this matter I am satisfied that the roots of the Fig tree have caused damage to the applicants' property although I consider that much of the damage had occurred prior to their purchase of the property. While I was shown some very fine hairline cracks in the new render, I am not satisfied that these have been caused by root growth as the area between the trees and that face of the dwelling was excavated to a reasonable depth within the last 15 months or so. I also note that the closest trees to the cracks are the Brush Box, which Mr Atkins considers to have much less vigorous root systems than Fig trees. 11While the recommendation of the installation of a root barrier has some merit, in order to prevent the destabilising of the Fig, the barrier would need to be installed some metres away from the Fig. Mr Atkins' specification in his report would provide very limited protection for underground services at the rear of the applicants' property. A root barrier would not overcome the practical difficulties of constructing a new fence along the common boundary. While the vast majority of the base of the tree is on the respondent's property, part of it extends onto the applicants' land. 12After considering the particular circumstances of this matter, reluctantly I have determined that the Fig tree is to be removed. While the option of removal is always the last choice, in this case there is no practical alterative that could enable the tree's retention but avoid future damage. Given its size and obvious presence combined with the number of pre-existing problems with the applicants' property, I find it reasonable that the applicants make some financial contribution to its removal. This contribution was agreed to be 20%. To minimise the cost of removal, the orders will limit the extent of removal of the base of the tree and any woody roots to the minimum required for the construction of the footings for the new masonry fence. 13With respect to the Brush Box, no orders will be made for any intervention with this tree. I am not satisfied to the level required by s 10(2) that there is any evidence to indicate to me that this tree has caused damage to the applicants' property or is likely to do so in the near future. The guidance decision in Yang v Scerri [2007] NSWLEC 592 puts the 'near future' as a period of 12 months from the date of the hearing. In this matter, I am satisfied that the trenching for the new storm water system has severed the majority of any roots between the tree and the applicants' dwelling. 14With respect to the dead wood and the risk of injury, the risk of dead wood falling onto the applicants' property is low and the respondent has not raised any concerns with respect to its residents. The poisoning of the remaining stump of the Fig will limit the future impact of the constricting fig root on the base of the Brush Box. Therefore, the application to remove the Brush Box is dismissed. 15Therefore as a result of the forgoing, the Orders of the Court are: (1)The application to remove the Hill's Fig is upheld. (2)The application to remove the Brush Box is dismissed. (3)Within 14 days of the date of these orders, the respondent is to obtain at least 3 quotes for the removal of the Fig tree. The quote is to include the cost of removing the lower section of the trunk and main roots on the applicants' property to a sufficient depth and extent to enable the construction of the proposed masonry dividing fence. It is sufficient for the stump to be reduced to the top of the buttresses on the respondent's side of the proposed wall. The quote is to include the cost of poisoning the stump. (4)The parties are to agree on the cheapest quote and the respondent is to engage and pay for the contractor to do the work within 30 days of the date of these orders. (5)The work is to be carried out by an AQF level 3 arborist with sufficient and appropriate insurance cover, and in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (6)The applicants are to provide all reasonable access, on at least two working days notice, for the work to be carried out safely and efficiently. (7)The applicants are to reimburse the respondent 20% of the cost of the works within 21 days of receipt of a tax invoice for the completed works. _____________________ 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. Decision last updated: 17 August 2012