Land and Environment Court New South Wales Medium Neutral Citation: Granger v Owners Corporation SP 18494 [2012] NSWLEC 1285 Hearing dates: 15 October 2012 Decision date: 15 October 2012 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld in part; tree to be removed; rectification ordered Catchwords: TREES [NEIGHBOURS] Damage to property; injury; Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Ghazal v Vella (No. 2) NSWLEC 1340 Tomasetta v Gregory [2007] NSWLEC 420 Category: Principal judgment Parties: Mr R Granger (Applicant) Owners Corporation SP 18494 (Respondent) Representation: Applicant: Mr R Granger (Litigant in person) Respondent: Ms L Dorin and Mr D Zulian (Agents) File Number(s): 20629 of 2012 Judgment 1COMMISSIONER: The applicant seeks orders for the removal of tree roots that he says have caused damage to paving and which have led to tripping hazards that could result in injury to his family. He is also concerned about unseen damage that the roots may have caused to his property and the risk of future damage. 2Orders are also sought for the rectification of damaged property, an investigation into possible unseen damage, the installation of a root barrier to prevent future plantings from causing damage, and compensation for the costs associated with bring the application to court. 3The application has been made under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Act 2006 (the Act). 4The key jurisdictional test in applications made under Part 2 is s 10(2). This states that 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 applicant's property or is likely to cause injury to any person. 5The tree is question is a mature Radamacheria sinica (China Doll Tree) growing close to the dividing fence between the parties' properties. Anecdotal evidence suggests the tree was planted about 30 years ago. It is located towards the rear of the respondent's property in Corrimal. The tree is healthy and leans away from the fence towards the car parking/ utility area at the rear of the respondent's property. There is a small Leptospermum sp (Teatree) to the northeast of the China Doll tree. 6The applicant contends that when he purchased his property six years ago, the paving at the rear of his dwelling was level. In his view, the roots of the China Doll tree have caused displacement of the pavers to an extent that there are now many tripping points. He also contends that roots have displaced a section of concrete slab against the house. 7The site inspection confirmed the images in the application form. The paving was somewhat undulating over its entire length but the greatest level of displacement that could constitute a tripping hazard was immediately behind the tree. The lifted section of concrete is also immediately behind the tree. 8While on its face, the tree appears to be the cause of the uplift and displacement, the level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...". 9The applicant was given leave to remove some of the pavers and excavate the soil in the area most likely to be influenced by roots from the tree. At about 250 mm depth, a large woody root was found. This extended to the area beneath the displaced concrete slab. 10On this evidence I am satisfied that this root from the tree has caused the displacement of the paving and the slab and, as s 10(2) is satisfied, the Court's jurisdiction is engaged and I can consider what, if any, orders should be made under s 9 of the Act. This requires consideration of the matters under s 12. 11The following matters are considered relevant in the circumstances: * The tree is wholly located on the respondent's property and is very close to the dividing fence (s 12(a)); * Wollongong Council's Tree Preservation Order (TPO) covers the tree. The applicant obtained permission to prune any roots less than 50 mm in diameter. Mr Zulian, a resident and member of the Owners' Corporation executive committee stated that under the TPO, slight displacement of paving etc would not generally be accepted as a reason for the removal of a tree. Therefore, should the Court order removal of the tree, this would be inconsistent with council's 'rules' (s 12(b)); * With the expertise I bring to the Court, I consider that the removal of such a large root from the tension (or supporting side) of the tree is likely to destabilise it and put residents of the respondent's property at risk of injury. As removal of the root is necessary to prevent further damage to the applicant's property, the only practical solution is to order the removal of the tree (s 12(b2)); * The tree contributes to the natural landscape and scenic value of the respondent's land and it has amenity value as it partly screens the applicant's two storey dwelling (s 12(b3)(e)); * Mr Zulian also stated that there were cracks in his dwelling that opened and closed with changes in soil moisture - indicative of reactive soils - and that this could be a contributing factor. While there may be reactive soils, the evidence suggests that the root is the primary cause of the displacement. I saw no cracks in the respondent's dwelling. The excavated soil was generally quite sandy in nature. However, I note that there was displacement of the unit pavers in the area between the applicant's townhouse and the dwelling to the northeast and that the pavers are likely to be the originals installed when the applicant's dwelling was built some 16 years ago; it is possible that some uneven displacement may have occurred over time (s 12(h)(i) and (12(i)(i)). * 12In regards to Mr Zulian's concerns about consistency with a council's TPO, even if a council officer may consider the situation to not warrant a particular action it may nonetheless trigger the Court's jurisdiction if s 10(2) is satisfied. While the Court may consider the provisions of a TPO if they are relevant, the fact remains in this matter that the roots have caused damage, albeit relatively minor, and this is enough to engage the Court's jurisdiction. The orders the Court makes are in the light of the extent of the damage and measures required to remedy, restrain or prevent damage. The relative powers of the Court and a council are discussed in Ghazal v Vella (No. 2) NSWLEC 1340 at [6]-[9]. 13As stated above, the removal of such a large woody root would jeopardise the stability and health of the tree and the only practical solution is to order the removal of the tree; something the respondent's agents do not oppose. It is possible that the tree will sucker and to ensure this will not occur, the stump and any large woody roots are to be ground to a depth of at least 300mm for a distance of one metre either side of the tree along the fence on the respondent's side. 14While almost the full extent of the respondent's back yard is undulating, I was not disposed to allowing the applicant time to excavate other sections further removed from the tree. In these matters, the onus is on the applicant to satisfy the Court of the nexus between the tree, the subject of the application, and the damage it is alleged to have caused. I cannot be satisfied that the roots from the China Doll tree have caused the undulations across the rest of the paving. I also note that while the paving is not exactly level, it is functional and does not create the same tripping hazard as the area immediately adjoining the tree. 15Similarly, I am not minded to order further investigations of possible 'unseen' damage, especially as the applicant has had no problems with the sewer, water pipes or cracking of his dwelling. Again, it is the responsibility of the applicant to provide that evidence. 16Therefore while the applicant seeks rectification of the entirety of the paving, I am only satisfied that the area in the immediate vicinity of the exposed root should be rectified at the respondent's expense. This is an area of 6 pavers wide and 8 long (1.45m x 2.3m = 3.4m2). If the applicant wants any additional rectification, it is to be at his expense and therefore any quotes for the paving work must be itemised to show the extent to be paid for by the respondent and the amount to be paid by the applicant. 17Replacement of the paving will require removal of the roots to prevent future subsidence of the paving as the roots decay. Ms Dorin, another member of the executive committee representing the respondent suggested that whoever removes the roots on the respondent's side of the fence should also remove the roots beneath the section of paving to be replaced. This is a sensible option. 18When possible solutions were being discussed regarding rectification of the displaced slab, Mr Zulian helpfully suggested grinding the raised edge of the slab rather than a more expensive method of removing a replacing a section of concrete. Grinding has been ordered by the Court in Tomasetta v Gregory [2007] NSWLEC 420. 19In regards to future planting, I am not minded to make any orders for setbacks or root barriers. The respondent is now aware of the potential outcome of planting very close to a dividing fence. (However, I also note that the circumstances and available planting space may have been entirely different when the tree was planted some decades ago.) 20In regards to the costs sought by the applicant, an amount of $841.25, Commissioners do not have the jurisdiction to award such costs. Should the applicant wish to pursue this, a Notice of Motion must be filed with the Court. It would then be heard by a Judge or Registrar of the Court. 21Therefore, as a consequence of the forgoing, the Orders of the Court are: (1)The application is upheld in part. (2)Within 40 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to remove the Radamacheria sinica to ground level. The stump and all woody roots located a metre either side of the tree are to be ground to a depth of at least 300mm. The roots along the fence need only be ground to a distance of 300mm from the fence. (3)The arborist is also to remove the roots in the area to be repaved to a depth of 300 mm. This may be by grinding or cutting and removal. The roots are to be removed between the fence and the edge of the concrete slab that adjoins the applicant's dwelling. (4)The applicant is to provide all reasonable access, on two days notice, for the purpose of quoting. The respondent is permitted to obtain up to 3 quotes each for the tree removal, paving and concrete grinding. (5)The selected arborist is to give the applicant at least 7 days notice of the commencement of the tree removal and grinding works. Within this time, the applicant is to remove the nominated 3.4m2 of paving and expose the roots to be removed. (6)All tree work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (7)Within 30 days of the completion of the tree removal, the respondent is to engage and pay for a suitably qualified and insured contractor to relay the nominated 3.4m2 section of paving to industry standards and to grind the edge of the adjacent lifted concrete slab to a point where it no longer forms a tripping hazard. A foam expansion joint is to be installed after grinding. (8)Should he wish to, the applicant is to be responsible for the repainting of the ground edge of concrete slab. (9)Should the applicant wish to engage the nominated paving contractor to relay the remaining area of paving, any quote and the final tax invoice is to clearly indicate the amount to be paid by the respondent and the amount to be paid by the applicant. The payment of the invoice is to be negotiated between the contractor and the individual parties. ______________________ 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: 16 October 2012