Land and Environment Court New South Wales Medium Neutral Citation: Wicks v Fenton [2014] NSWLEC 1129 Hearing dates: 23 June 2014 Decision date: 23 June 2014 Jurisdiction: Class 2 Before: Moore SC Galwey AC Durland AC Decision: See (36) Catchwords: TREES: jurisdictional tests; discretion; dividing fence Legislation Cited: Trees (Disputes Between Neighbours Act) 2006 Dividing Fences Act 1991 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Briginshaw v Briginshaw (1938) 60 CLR 336 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Pamela Dianne Wicks (Applicant) Warren and Vicky Fenton (Respondents) Representation: Applicant in person Respondents in person File Number(s): 20212 of 2014 Judgment Introduction 1COMMISSIONERS: These proceedings concern an application made by a resident of Como, concerning trees located on an adjacent property. There are five trees that are the subject of the application; they are located, with one exception, in the general vicinity of the fence line that divides the two properties. For the purposes of this decision, we need to consider whether or not, with respect to each tree, we have jurisdiction to deal with the application and, if we do so, what orders, if any, we should make with respect to each of the trees. 2All the applications are made under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), in that they arise with respect to the matters contained in s 10 of the Act, that is, that they have caused, are causing or are likely in the near future to cause damage to the applicant's property or they are a risk of injury to any person. 3For the purposes of this decision, it is convenient to work from the rear boundary toward the front and deal with the various elements that arise about each of the trees. Before doing so, we also note that there is also an application made as part of these proceedings pursuant to s 13A of the Dividing Fences Act 1991 (the Dividing Fences Act), a provision that engages us with the power to make orders with respect to the remainder of the dividing fences between the properties - as part of the dividing fence is said to have been damaged in the past by one of the trees. We will deal with that application later in this decision. The Jacaranda 4The first tree, adjacent to and in close proximity to the rear boundary of the respondents' property, as well as close to and adjacent to the dividing fence between the properties, is a Jacaranda. The Jacaranda leans toward the applicant's property, but also has several branches that overhanging the respondents' rear boundary, a rear boundary that is a boundary with a public park. There are a number of bases upon which the applicant suggests we have jurisdiction to order the removal of the tree, and if we have such jurisdiction, should order the removal of that tree. 5First, she says that the lower limbs of that tree are used to aid children climbing over the respondents' fence and thence into her rear yard to retrieve balls that have come over the fence from the adjacent park. That, she says, is a risk to the children as she has a swimming pool located on her property and has, in the past, seen a child leaning over the swimming pool, endeavouring to retrieve a ball - a child who informed her that he had climbed the fence in that fashion. She then suggests that debris that is falling from the Jacaranda is a risk of causing damage to her pool filter pump, and finally that the Jacaranda is exerting root pressure on her rockery, a rockery that is in the rear corner of her property, adjacent to the boundary with the respondents' property. 6We turn to consider each of these three aspects of the application. First, with respect to the risk of children, that is not a risk that is a risk of injury occasioned by the tree, it is a risk of injury to children occasioned by the conduct of the children. It does not fall within the jurisdiction of the Act. 7Second, with respect to the claimed damage to the rockery, we observe that there is a stump some 150 mm or so high, on the applicant's side of the fence, a stump that is some 150 mm or so in diameter that was removed at some time in the past, a time that the applicant is unable to specify. What impact that previously existing tree would have had on the wall of the rockery is unable to be determined by us, but we are not satisfied that the otherwise minor cracking shown to be concrete presently between the rock elements of the rockery, concreting that has been replaced, on the applicant's evidence, in the last several years, is caused as a result of the roots of the Jacaranda. 8Evidence was given by the respondents of downhill flow of water from the park space and the possibility that there may be water pressure behind the rockery face. We have no evidence as to the method of construction of the rockery and, as a consequence, we are unable to conclude to the necessary degree of comfortable satisfaction suggested by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336, that the damage to the rockery is occasioned by the Jacaranda, or if occasioned by the Jacaranda, to sufficient extent to satisfy the relevant jurisdictional test. 9With respect to the deposition of material from the Jacaranda into the swimming pool, there is no claim that it has caused or is causing damage to the swimming pool pump. We agree therefore not satisfied that we have jurisdiction to make any order with respect to the Jacaranda. 10If we are wrong in our conclusion with respect to the deposition of detritus into the swimming pool, the Court has published a Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 that says that people who live in urban areas are to have the environmental and aesthetic benefit of trees, then they should accept the responsibility of undertaking minor cleaning of detritus from those trees of the nature of fruits, nuts, berries, flowers and the like. We would therefore on a discretionary basis, if we are wrong about the debris, not make any order with respect to the Jacaranda. It therefore follows that the appropriate course is to dismiss the application to the extent that it applies to the Jacaranda. The Red Gum 11We now turn to the tree that is a Eucalypt of some unspecified species, but which is described by the applicants and the respondents as a Red Gum. 12First, we observe that the applicant had thought that it was a tree planted separately in the vicinity of her fence on the respondents' property, but on inspection, as stated by the respondents in their material in reply, it is a branch of a tree some 6 or 7 m long, from a tree that is planted, or is growing well away from the applicant's boundary. The branch of the tree extends close to, and, to an extremely minor extent at most, over the boundary. The portion that extends over the boundary, if it does do so, is of branches that have a diameter of 10 mm or so at the moment. There is no claim of past or present damage by this tree, and there is a concern expressed by the applicant that at some stage in the future it may cause damage to her property, or it may cause a risk of injury to a person. 13The Court has adopted the principle in the case of Yang v Scerri [2007] NSWLEC 592 that for assessment of what might be the near future, for the purposes of the provisions in s 10 of the Act, we would adopt a period of approximately 12 months foreseeability from the date of the hearing. There is no rational basis upon which we consider that there is any likelihood of that limb causing damage to the applicant's property or of being a risk of injury to any person within that period of time. We have no jurisdiction with respect to that limb on any basis, and therefore that element of the application is dismissed. The small unidentified tree 14A similar position to that of the Red Gum applies with respect to the small tree of unidentified species (possibly a Leptospermum sp.) planted in the immediate vicinity of, and underneath that tree, in the vicinity of the respondents' chicken pen. That aspect of the application is also dismissed. The Monstera deliciosa 15There is a further application with respect to a shrub, which is described as a Philodendron in the application, but which, in our view, is a Monstera deliciosa. It is planted in the vicinity of the fence line, close to the next tree to which we will turn, which is the stump of a Eucalypt. There is no proof of it having damaged any element of the applicant's property. 16There is one minor root some 10 mm in diameter that has penetrated between two palings on the dividing fence between the properties, and is hanging toward the ground at that point. It is not damaging the fence, there is no past, present or future damage to the applicant's property and there is no risk of injury to any person. 17We note that the respondents have indicated that they are prepared to remove this plant if there is a resolution to the fencing element of this dispute that satisfies their privacy concerns. Such an attitude by the respondents, although perhaps of assistance in reinstating neighbourly relations, is not a matter that requires our consideration in these proceedings. We have no jurisdiction with respect to this plant and the application with respect to it is therefore dismissed. The concrete retaining wall 18We now turn to the question of a low concrete retaining wall, located on the applicant's property, slightly toward her house from the surveyed line of the dividing boundary between the properties. The evidence from the respondents' engineer Mr Bonner, shows that there is likely to have been some rotation of the upper portion of this wall caused by the root impact on it, roots that were able to be observed by us during the course of the site inspection. That rotation constitutes past damage to the applicant's wall and therefore we have jurisdiction pursuant to s 10 of the Act to deal with it. We observe that, in our view, the wall will be stabilised, if the measures that we propose to order with respect to the roots in the vicinity are carried out and that, as a consequence, further rotation is unlikely to occur. 19The applicant put to us that the option of being able to install a gate down the side passage of her house had been impacted by the ongoing rotation of the wall and that that was an aspect that she wished to have addressed by reinstatement of the wall. We are satisfied that the question of gating is something that can be allowed for in the orders concerning the fence, they being orders that we propose to make, both pursuant to the provisions of the Trees Act, as well as pursuant to the provisions of the Dividing Fences Act. 20We are satisfied, as well, that we have no evidence of the standard of construction of this wall. It is clearly a wall of some age; it is perhaps one that extends to 300 or 350 mm or so in height. There is no evidence that it is not fulfilling the functional role that it is intended to do. Removal of the roots will in fact stabilise the damage to this wall. For the future, the impact will truly only be cosmetic and (subject to the gating issue) we are satisfied that, although we have jurisdiction concerning this wall, as a matter of discretion, it is not appropriate to make any orders with respect to this wall. 21We propose that the way to deal with the question of gating is to leave this in the applicant's hands and, doing the best we can, and without any specific evidence of this, we should make an allowance within the cost of apportioning of the re-fencing between the properties, of $200 in the applicant's favour, to enable her to install a replacement to the gate, which is unable presently to operate. The Eucalypt stump 22We turn to the question of the stump of the Eucalypt. The Eucalypt was a substantial tree that was removed in the past by agreement between the parties. 23We were able to observe, not only from the photographic evidence provided by the applicant but also from the residual of the elements on the stump, that there are at least three locations where there has been epicormic growth from the stump, indicating that there is still some life and vigour in the residual vegetative material. This was confirmed by the evidence from Mr Reed, the respondents' arborist. It is therefore possible that in the future, not only would that stump throw further epicormic growth, but there may be some vigour remaining in the roots that could cause some damage in the future. 24We are satisfied that at least one substantial root, visible underneath the fence, has caused part of the damage to the fence. 25We are also satisfied that another root has formed part of that damage, but it is not from the Eucalypt. It is, however, sufficient that that damage has been occasioned by a root of the Eucalypt, as well as the rotation of the low concrete retaining wall, to found our jurisdiction with respect to this stump. We consider that the appropriate way to deal with the matter, although the applicant wishes to have the stump removed and the roots ground, is not to require that. We are satisfied that the request made by the respondents to retain at least portion of the stump, in order to be able to use it as a pot stand for pot plants and the like is not unreasonable, provided steps are taken to ensure that the roots are killed. 26It is clear, from the top of the stump, that the top of the stump is substantially dead, and that applying poison to the top of the stump would not effect the killing of the roots. We are satisfied that the appropriate method of dealing with this is to remove portion (but not the entirety) of the remaining stump, and then to require poison to be applied, to what we expect will be a receptive surface compared to that which is presently the top of the stump. We consider that that poisoning should be undertaken immediately upon the removal of portion of the stump and that that work should be undertaken by an appropriately professionally qualified person, that is, an arborist with AQF level III qualifications and appropriate insurances. We think that the appropriate level to remove the stump will be 400 mm above the current ground level, and that the stump should then be poisoned. 27As part of the orders that we propose to make, we should also indicate that we think all of the roots in the immediate vicinity of the fencepost should be removed to a point that is immediately within the respondents' property, compared to the fence line. 28We are satisfied that the roots are, in part, roots from the Eucalypt to which we have just referred but are also, in part, from the roots of a stump that is located approximately 600 or 700 mm toward the front of the property - a tree that had been removed some two or three years ago. All of those roots, although that tree and its stump were not part of the application, as the applicant considered that the roots were likely to be those from the Monstera, should, notwithstanding that, be removed as part of the outcome of these proceedings. The dividing fence 29We have earlier noted that there is application pursuant to s 13A of the Dividing Fences Act. It is an application for replacement of the whole of the paling fence. A rough measurement, there not being a precise dimension in evidence, undertaken by pacing out the length of the fence is that it is approximately 35 m from the rear boundary of the properties, through to the existing primrose Colorbond fence that divides the front yards of the two properties. 30The applicant wishes to have an order that the respondents pay the entirety of the cost of replacement of the fence for the first 23 m or so - from the commencement of the paling fence toward the front of the property and that they share the remainder of the cost. On a rough mathematical basis, doing as best we can without precise measuring devices, that would have the respondents paying 5/6 of the cost of the fence. The respondents, on the other hand, suggest that the cost should be shared equally. 31There is no doubt that part of the reason for replacing part of the fence arises from the damage that the respondents' trees roots have caused to the fence in the past. There is, however, equally the factor to be taken into account, that the fence is some 30 years old, it has, in reality, reached the end of its useful functional life, and would need to be replaced in the near future. Such replacement, absent the impact of the trees, would ordinarily be pursuant to the Dividing Fences Act, and have the parties meet the cost in equal halves. The parties have agreed that the replacement fence should be a Colorbond fence, although there is disagreement as to the colour, a matter to which we will return shortly. 32They agree that the fence should commence at the end of the present primrose Colorbond fence; taper upwards from the height of that fence to a point at the rear of the applicant's carport; and then proceed at a height of 1.8 m to the rear boundary of their properties. 33The dispute as to colour, is effectively, that the applicant wishes the fence to be the same colour as her rear boundary fence, whilst the respondents wish the colour to be the same as their rear boundary fence - those colours being differential shades of green. 34As we have concluded that the work should be carried out for the replacement of the fence by the respondents, that it is appropriate that they be permitted to choose the colour of the fence, we therefore propose to specify that the fence replacement should be the same Colorbond green as the rear fence of the respondents' property. 35We have also concluded that it would not be appropriate to order an equal sharing of the cost of replacement of the fence because portion of the necessity of replacing the fence arises from the damage caused by the tree roots. However, the extent of that damage is certainly not of the nature that is proposed by the applicant in the proceedings. It is our opinion that to order a 5/6th to 1/6th contribution would be a manifestly inappropriate result. Subject to the allowance for gating that we have earlier discussed, we consider that the proportion of the costs that should be borne, should be 45% by the applicant, and 55% by the respondents. Orders 36As a result of all of the foregoing, the orders of the Court are as follows: (1)The application concerning the Jacaranda is dismissed. (2) (a)The application concerning the tree described as a Red Gum is dismissed; (b)The application concerning the unspecified tree in the vicinity of the Jacaranda and underneath the branch of the Red gum is also dismissed. (3)The application concerning the Monstera deliciosa is dismissed. (4)The application for the wall is dismissed, but this dismissal is subject to orders (5) and (6), to permit time for the applicant to replace her concrete retaining wall at her own cost if she wishes to do so. (5) (a)The application concerning the stump of the Eucalypt is granted to the extent of requiring its removal to a point 400 mm above the ground and to be poisoned immediately upon this work being conducted. (b)The work in 5 (a) is to be carried out by an AQF level III arborist with appropriate insurances. (c)Roots in and around the existing fence posts are to be removed, so as to be clear of the retaining wall on the applicant's property and inside the respondents' fence line. (d)The work in (a) and (c) are to be done after removal of the fence and prior to its replacement. (6) (a)The fence is to be removed within 30 days of the date of these orders and rebuilt within six months of the date of these orders. (b)The fence is to be a Colorbond one to match the rear fence of the respondents' property. (c)The fence is to be constructed along the line of the existing fence, commencing at the end of the existing primrose Colorbond fence; to taper from the height of the primrose Colorbond fence to 1.8 m aboveground at the end of the carport, located on the applicant's property and then to continue at 1.8 m in height to the rear boundary of the properties. (d)The fence cost is to be in the ratio of 55% to the respondents plus $200 and to be 45% minus $200 to the applicant. (e)The work to reconstruct the fence is to be carried out by the respondents to the proceedings. (7)The applicant is to pay the respondents the required proportion of the cost of the fence, as set out in order 6(d) within 28 days after the service on her of a receipted invoice after the completion of the work. (8)For the purposes of carrying out all of the works required by these orders, the respondents are to have access to the applicant's property on reasonable notice and at a reasonable hour of the day. (9)If the applicant wishes to replace the concrete retaining wall, she is permitted to do so, within one month after the removal of the roots and upon giving written notice to the respondents that she wishes to do so. If notice is given of this, the time for finalisation of the replacement of the fence is extended by a further one month. (10)The fencing constructor is to provide proof of appropriate insurances to the applicant, prior to commencement of reconstruction. Tim Moore David Galwey Lisa Durland Senior Commissioner Acting Commissioners 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: 27 June 2014