Lee & anor v Waugh [2012] NSWLEC 1341

Land and Environment Court New South Wales

Medium Neutral Citation: Lee & anor v Waugh [2012] NSWLEC 1341 Hearing dates: 30 November 2012 Decision date: 12 December 2012 Jurisdiction: Class 2 Before: Fakes C Decision: The application is upheld in part; removal ordered; compensation ordered Catchwords: TREES [NEIGHBOURS]: Damage to property; injury to persons Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Ghazal v Vella (No. 2) [2011] NSWLEC 1340 Barker v Kryiakides [2007] NSWLEC 292 Category: Principal judgment Parties: W & K Lee (Applicants) E Waugh (Respondent) Representation: Applicants: Mr W and Mrs K Lee (Litigants in person) Ms E Waugh (Litigant in person) File Number(s): 20887 of 2012

Judgment 1COMMISSIONER: This is an application made under s 7 of the Trees (Disputes Between Neighbours) Act 2006 by the owners of a property in South Coogee against the owner of a Norfolk Island Pine growing on an adjoining property. 2The applicants contend that the roots of the Norfolk Island Pine have caused the cracking of the masonry wall that divides the two properties. The applicants are also concerned that the branchlets that fall from the tree could block the gutters of their house and their pool filter. The applicants are also worried that the entire tree could fall onto their property and cause extensive damage and potential injury. 3The applicants are seeking orders for the removal of the tree and the reconstruction of the wall at the respondent's expense. In order to repair the wall they say that the stump of a palm tree will also have to be removed. 4The respondent does not wish to remove the tree, as she values the tree and is concerned that the soil in her garden will be destabilised. 5The respondent has resided in her dwelling since 1939. Photographs taken in the 1940s show the early stages of the back garden and attempts by the respondent's mother to stabilise the sloping sandy site with pieces of sandstone. The tree is a healthy mature Norfolk Island Pine. The respondent thinks it was planted in the 1950s as a thankyou present from a student who boarded in the house. The tree is close to the common boundary and planted approximately mid way along the rear common boundary. 6Apart from the Pine, there is the stump of a palm that was removed some years ago. The stump is close to the northern end of the wall. There are a number of shrubs in the garden bed along the wall as well as the stumps of previously removed trees. 7The applicants have owned their property for 48 years; they and a builder erected the masonry walls around the rear of their property 41 - 44 years ago. The wall in question was built about 44 years ago. The wall is constructed of a single skin of narrow (400mm long x 190mm high x 100mm thick) concrete blocks. The blocks are not in a bonded pattern but are horizontally and vertically aligned. There is no internal reinforcing, however galvanised wire mesh was placed between each row of blocks. The footing is a strip of concrete '9" wide and 4" thick' laid directly onto the sandy soil. The wall is on average about 5 courses high and capped with two rows of decorative concrete 'breeze' blocks. The north-eastern section of the wall has a kink in it as it evidently follows the line of a former fence. 8There are a number of vertical and horizontal cracks in the mortar between several vertical and horizontal courses of blocks in the vicinity of the palm stump and the Norfolk Island Pine. There is also separation between some of the decorative breeze blocks on the top of the wall. 9The applicants' back garden is fully paved and contains a part in-ground part above-ground pool that has been there for decades. There are masonry walls on the western and southern boundaries. Construction of a dwelling at the southern end caused the southern wall and the southern end of the western wall to be undermined. These were rebuilt to current standards. The remaining original section of the original wall is in good order. 10I also note that the paving in the vicinity of the tree is level and in good order. 11In applications made under Part 2 of the Act, the key jurisdictional test is found in 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. 12While there was no excavation to show the location of roots, with the expertise I bring to the Court, I consider it highly likely that given the size of the tree, the sandy nature of the soil, the shallow depth of the wall's footings, and the proximity of the tree to the wall that there are likely to be structural roots under the footing. In this matter I am satisfied that the Norfolk Island Pine has contributed to the damage to the applicants' eastern boundary wall. As s 10(2) is satisfied, the Court's jurisdiction to make orders under s 9 is engaged. 13With respect to the other matters raised by the applicants in regards to debris and the risk of whole tree failure, I make the following findings. 14In regards to the stability of the tree, I saw no evidence that the tree is likely to fail in its current condition. The applicants have not sought advice from an independent arborist but instead rely on some comments made by an SES person who inspected the tree on 23 May 2009. The applicants contacted the SES because they were afraid the tree would come down in high winds. 15The applicants claim that debris falls from the tree onto their roof and into the pool. This necessitates regular maintenance because they say a build up of material could lead to damage to ceilings etc. inside their house as well as damage to the pool liner and filter. I was not shown any evidence of any damage to the house or the pool. I believe the applicants' position to be that such on-going maintenance is unreasonable and that the tree should be removed to prevent future damage. 16In regards to the debris from the tree, I am not satisfied that any element of s 10(2) is satisfied. However, if I were wrong in my findings, as a matter of discretion I would not make any orders for any intervention with the tree on the basis of debris. The Court has a long standing Tree Dispute Principle published in Barker v Kryiakides [2007] NSWLEC 292 which states that: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. 17There are many examples of the application of this Principle. In this matter I am not satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; I see no exceptional circumstances that would lead me to deviate from this consistently applied principle. The tree was clearly well established when the pool was constructed. 18Returning to the interaction between the tree and the wall, s 9 of the Act enables the Court to make any order it thinks fit to remedy, restrain or prevent damage to an applicant's property. Determining what orders, if any, are appropriate requires consideration of matters in s 12 of the Act. The relevant matters are discussed below.