Woods v White & anor [2014] NSWLEC 1012

Land and Environment Court New South Wales

Medium Neutral Citation: Woods v White & anor [2014] NSWLEC 1012 Hearing dates: 29 January 2014 Decision date: 29 January 2014 Jurisdiction: Class 2 Before: Fakes C Decision: Upheld in part, see paragraph [27] Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; discretionary matters Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Mrs D Woods (Applicant) Mr D & Mrs D White (Respondents) Representation: Applicant: Mrs D Woods (Litigant in person) Respondents: Mr D & Mrs D White (Litigants in person) File Number(s): 20870 of 2013

Judgment 1COMMISSIONER: The applicant in these proceedings contends that the roots of a mature Metasequoia glyptostroboides (Dawn Redwood) have caused damage to her property in Turramurra. She has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking rectification of the damage at the respondents' expense. 2The applicant is claiming compensation of the sum of $14,471 being an amount quoted by Genteel Gardens for the rectification of the applicant's driveway and garage floor. In addition she is asking that the respondents pay the costs associated with the application. 3In regards to costs, Commissioners do not have the jurisdiction to award costs. A Notice of Motion must be filed and heard by the Registrar or a Judge of the Court. 4The tree is a mature and healthy specimen located in what is now a small garden bed between the parties' asphalt driveways. It was an established tree when the respondents purchased their property 30 years ago. 5The alleged damage is the variable lifting and subsidence of the applicant's driveway, displacement and cracking of a concrete slab at the entrance to the garage, and lifting and minor cracking of the concrete slabs forming the garage floor. 6There is a difference of about 70mm between the driveway and the concrete slab. According to the applicant, this is difficult to negotiate in her small car. She is concerned about potential injury. 7The respondents contend that the applicant has provided no evidence that the roots arise from the Metasequoia but could come from a Brush Box located on the applicant's property - a matter raised by an arborist engaged by them to provide advice. 8The respondents propose alternative orders requiring engaging the services of the arborist to prune the roots of the Metasequoia and install a root barrier. They would share the cost of this with the applicant. They consider that the applicant should be responsible for the costs of any rectification of the driveway and garage floor. 9In applications 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. 10The 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...". 11While the respondents have relied in part on the arborist's observation that the damage may have been caused by the roots of the applicant's Brush Box, in my view there is more than a theoretical possibility that roots of the Metasequoia are the cause. There is a clear pattern of lifted asphalt radiating from the base of the tree. With the arboricultural expertise I bring to the Court I find this is consistent with displacement caused by the expansion of woody roots. The Metasequoia is much closer to the garage than the Brush Box. 12The displacement of the driveway and the nature of the crack in the concrete slab at the entrance to the garage are consistent with being caused by a root. 13Therefore, to the extent required by s 10(2) I am satisfied that the tree has caused damage to the applicant's property and the Court's jurisdiction to make orders under s 9 is engaged. 14Section 9 of the Act enables the Court to make any orders it thinks fit to remedy, restrain or prevent damage to property or to prevent injury to any person as a consequence of the tree the subject of the application. The Court is under no obligation to make the orders sought by either party. 15Determining what if any orders should be made requires consideration of a number of discretionary matters in s 12 of the Act. The following matters are relevant. * There is no dispute that the tree is located on the respondents' property and is close to the applicant's dwelling. The respondents contend that extensions to the applicant's dwelling approved in 1989 brought the garage much closer to the tree (s 12(a)). * To a greater or lesser extent, the orders sought by the parties require some root pruning (s 12b2). Excessive removal of roots has the potential to comprise the health and or stability of a tree. In my opinion, some root pruning is reasonable but must be limited to the edge of the garage. While the extent of the displacement indicates there is probably a substantial root near the western end of the garage, the apparent lack of any recent disturbance to the remaining root system would indicate that the pruning of that root is unlikely to have any significant impact on the tree. To minimise the damage, the root(s) must be cut cleanly with a sharp saw. * The tree is good specimen that contributes to the respondents' garden and to the diverse and leafy landscape character of the Ku-ring-gai municipality (s 12(b3)(e)(f)). * Actions of the parties (s 12(ii)) and other matters (s 12(j)) - see below. 16The applicant contends that she only noticed the problem with the crack in the entrance to the garage less than a year ago although she had been aware of the displacement of the driveway for much longer. It appears that the applicant rang the first respondent in late August 2013 and wrote to him on 30 October with a copy of the quote from Genteel Gardens and a request that he sign a Request for Tree Works and pay a sum of $7,235.50 within 7 days. As no payment was made in that time, the applicant applied to the Court. 17The respondents maintain that this was an unreasonably short time frame for them to consider a response and that in effect, the applicant contributed to the problem by extending the property closer to the tree.