Land and Environment Court New South Wales Medium Neutral Citation: Fitzgerald v Health Commission of NSW [2013] NSWLEC 1018 Hearing dates: 28 January 2013 Decision date: 28 January 2013 Jurisdiction: Class 1 Before: Fakes C Decision: Application to remove trees dismissed; orders made for removal of roots Catchwords: TREES [NEIGHBOURS] Potential damage to property; injury to persons Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Yang v Scerri [2007] NSWLEC 592 Joaquim v Adamson [2009] NSWLEC 1312 Joaquim v Adamson (No 2) [2009] NSWLEC 1367 Category: Principal judgment Parties: Ms H Fitzgerald (Applicant) Health Commission of NSW Representation: Applicant: Mr K Drummond (Agent) Respondent: Mr P Toope (Agent) File Number(s): 20971 of 2012 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Hamlyn Terrace that adjoins Wyong Hospital. 2The applicant is seeking orders for the removal of seven Casuarina trees on the basis that roots from the trees may cause damage to sewer and drainage pipes or crack concrete on her property. She also contends that the roots have created a trip hazard causing her to fall and injure herself. The applicant is concerned that if only roots are removed, the trees may be stabilised and then fall on her house thus causing damage and potential injury. 3The trees in dispute are part of a double row of Casuarinas planted near the northern boundary of the hospital grounds between an extensive carpark and landscaped area and the residential properties that back onto the hospital. The closest four trees are at least 3.5 m from the applicant's property; the remaining three trees are approximately 5 m from the dividing fence. 4Following requests and complaints from some nearby residents, including the applicant, the hospital has removed overhanging branches. The Acting Manager of Maintenance Operations and Technical Support for the Central Coast Local Health District and responsible for Wyong Hospital, does not wish to remove the trees or their roots. He is concerned that any orders for tree removal may create an unwelcome precedent. 5In applications made under Part 2, the key jurisdictional test is found in s 10(2) of the Act. 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. 6The 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...". 7As the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in this matter. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s, the circumstances of the site apparent at the time of the hearing and the evidence presented to the Court. 8The applicant's backyard is covered in river pebbles over a layer of weed mat. The area in question is at the rear of the garden beneath a shade structure which houses the applicant's collection of orchids. 9The applicant's son, her agent Mr Drummond, stated that his mother noticed that the gravel beneath the orchid house felt spongy when she walked on it. On digging away the gravel, Mr Drummond found a number of roots from the Casuarinas. 10Mr Drummond stated that while there had not yet been any damage to any pipes he was concerned that the roots appeared to be heading in their general direction. 11In regards to injury, the applicant stated that she had fallen in that part of the garden and she alleges it was because of the uneven ground caused by the roots. 12At the hearing it was clear that the exposed roots were from one or more of the Casuarinas as there are no trees on the applicant's property. The largest of these roots are of a diameter that could displace anything above them. They are located in a part of the garden that would be regularly used by anyone attending the orchids. Apart from the larger woody roots there were several other small diameter roots growing on the surface of the exposed soil. 13While there was nothing to corroborate the applicant's statement that she had fallen, on the evidence before me I am satisfied that the largest woody roots could constitute a trip hazard and could cause injury to someone. However, I am not satisfied that the smaller roots pose such a risk. Nor am I satisfied on the evidence that any roots are likely in the near future to cause damage to the applicant's property. 14Therefore as one of the tests in s 10(2) is met, the Court's jurisdiction to make orders under s 9 is engaged. Section 9 enables the Court to make any orders it thinks fit, in this case, to remedy, restrain or prevent injury to any person as a consequence of the trees the subject of the application. 15The making of orders under s 9 requires consideration of matters in s 12 of the Act. The relevant clauses are: 12(a) The trees are wholly located on the respondent's property but they are set back at least 3.5 m from the applicant's property. 12(b2) The impact of pruning. The issue before the Court does not require the pruning of branches but may require the pruning of roots. The parties are concerned that root pruning could destabilise the trees. With the expertise I bring to the Court, I am of the opinion that the removal of part of the largest exposed woody roots will have little impact on either the health or the stability of the tree from which they arise. As stated above, the closest tree is at least 3.5 metres away and the trees have adequate room within the hospital grounds for root development and anchorage. The roots do not appear to be a problem within a metre inside the applicant's property. To minimise any risk associated with root pruning, all cuts must be made cleanly and no herbicides or other poisons are to be applied to any roots. 12(b3)(e)(f) The trees are part of a screen planting along the northern boundary of the hospital grounds. The trees would screen the hospital carpark and buildings from adjoining properties. They provide visual amenity to the public and contribute to the scenic value and natural landscape of the hospital grounds. 12(i)(i) Anything other than the trees/ actions of the parties. As previously stated, records submitted by the hospital indicate that the trees have been pruned on several occasions. Overall it appears as though the trees have been managed to minimise their impact on adjoining properties. The applicant's garden contains many uneven surfaces and trip hazards including raised stepping-stones and the edges of paving. The rounded river pebbles chosen by the applicant as a surface cover are inherently more difficult to compact than more angular gravel. 16After considering the circumstances of the site and the evidence of the exposed roots, I am satisfied that orders should be made for some intervention with the trees. However, I consider the applicant's request for the removal of seven trees to be disproportionate to the risk posed by the roots. 17In my view there is only one section of roots that requires removal. These roots are shown in the photograph attached to this judgment as Annexure A. The roots shown in this photograph are to be cleanly cut at a distance of one metre inside the applicant's fence line to a distance of 800 mm out from the edge of the garden bed that adjoins the applicant's rear patio. This is a task that could easily and cheaply be carried out manually with a saw and a mattock. It does not require the expense of a stump grinder. No roots are to be treated with herbicide or any other poison. 18In order to provide a firm base for the relaying of the weed mat and gravel, any depressions left after the removal of the roots are to be backfilled with road base and compacted. 19The respondent's contribution will be limited to the work outlined in paragraphs [17] and [18]. In the circumstances, I consider it reasonable for the applicant to be responsible for the relaying of the weed mat and replacement of the gravel. The orders will not prevent the applicant or Mr Drummond from removing other small surface roots however, to prevent unintended consequences, no roots should be poisoned or treated with herbicide (see Joaquim v Adamson [2009] NSWLEC 1312 and Joaquim v Adamson (No 2) [2009] NSWLEC 1367). 20In regards to the respondent's concern about any precedent these orders may set, all matters are decided on their merits and the particular circumstances of the case. In these matters, the onus is principally on the applicant to provide the evidence to substantiate their contentions so that the Court is satisfied to the extent required by s 10(2). 21As a consequence of the foregoing, the Orders of the Court are: (1)The application to remove the trees is dismissed. (2)Within 40 days of the date of these orders, the respondent is to organise the removal of the roots shown in the photograph in Annexure A as described in paragraphs [17] and [18] of this judgment. No roots are to be treated with herbicide or any other poison. (3)The applicant is to provide all reasonable access for this work to be carried out on at least two working days notice. If required, similar access is to be provided for the purpose of quoting. (4)The applicant or her agent is responsible for the replacement of the weed mat and gravel or any other surface material they desire. (5)These orders do not prevent the applicant or her agent from removing other surface roots within the applicant's property however no roots are to be poisoned or treated with herbicide. __________________________ J Fakes Commissioner of the Court ANNEXURE A 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: 30 January 2013