Land and Environment Court New South Wales Medium Neutral Citation: Walker v Gribble [2016] NSWLEC 1645 Hearing dates: 30 August 2016 Date of orders: 06 December 2016 Decision date: 06 December 2016 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 28. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; driveway; trees not the only cause of damage; repairs; apportionment of costs. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Category: Principal judgment Parties: Leslie Walker (Applicant) Rachael Gribble (Respondent) Representation: Solicitors: Kerry Williams, A C Knibb Kaine & Associates (Applicant) Mark Cottom, HWL Ebsworth Lawyers (Respondent) File Number(s): 147931 of 2016 Judgment Background 1. The long battle-axe driveway that leads to Mr Walker's Warrawee house was laid many years ago. Its bitumen surface is now cracked in many places. Mr Walker ('the applicant') is elderly and is concerned that he may trip on the rough surface, having already done so. 2. Trees close to the driveway are on various properties along its length. Ms Gribble ('the respondent') owns the property to Mr Walker's east. Around her tennis court is a row of Leighton Green Cypress trees, 23 of which grow between the tennis court and the common boundary, less than 2 metres from the section of Mr Walker's driveway near his dwelling. 3. Mr Walker wants to replace his driveway, and wants Ms Gribble to pay for most of the cost of repairing that section of the driveway that is adjacent to her trees. He says roots of her trees have damaged this part of the driveway. He has dug one hole next to the driveway to expose a woody root. In August 2015 he obtained a report from Tristan Bradshaw, of Bradshaw Tree Services, who recommended that all roots be cut along the driveway, that a root barrier be installed, that the driveway be replaced once roots are removed, and that the trees be pruned to reduce their height to 7 or 8 metres. The report does not meet the Court's requirements for expert evidence, but was submitted by Mr Walker as supporting evidence. 4. Mr Walker has applied to the Court pursuant to the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders that reflect Mr Bradshaw's recommendations: 1. The Respondent reduce the height of the trees by some seven metres. 2. The Respondent dig a trench 30 cm deep and insert root inhibiter to prevent further damage. 3. The Respondent cut and remove all roots that have cracked the surface of the driveway. 4. The Respondent repair the driveway where cracked using similar materials. 1. Ms Gribble argues that Mr Walker has not demonstrated that roots from her trees have caused damage to his driveway. Framework of the Trees Act 1. Regarding damage, the Court "must not make an order under this Part 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" (s 10(2)(a) of the Trees Act). While the Court may inform itself on matters as it sees fit, and although I am a qualified arboriculturist, there is only so much that can be seen at a site hearing and the burden of proof, at least that required for the Court to be satisfied that a tree has caused damage, lies with the applicant. 2. If satisfied of the jurisdictional test at s 10(2) of the Trees Act, the Court is not required to make the orders sought, but can make orders as it sees fit to address the situation. If ordering compensation, this may be apportioned according to matters considered at s 12 of the Trees Act. The respondent 1. Ms Gribble contends that Mr Bradshaw's report does not prove the cause of damage. The findings of the report relate to only one hole being dug next to one crack in the driveway, and from this Mr Bradshaw extended his opinion to the remainder of the driveway and trees. She points out that the exposed root was not identified beyond doubt, and that the nexus between the trees and the damage was not shown. 2. Ms Gribble argues that other trees, including many on the applicant's own property, could be contributing to the damage. She says the driveway's condition is also due to its age. 3. A row of similar trees on another adjacent property fell some time ago. Ms Gribble says photos (part of Exhibit 1) show that those trees had a small ball of roots, with no large roots extending horizontally for any great distance. Having not seen those trees or their growing conditions, I cannot assume that they had the same growing conditions as the trees subject to this application. 4. A concrete path passes between the trees and the common boundary. Ms Gribble argues that the absence of cracks in this path suggests there are no large roots heading across the boundary. I observed some cracks here, although much smaller than those in the driveway. 5. Ms Gribble says she is unable to adequately respond to the application, as it does not include any quotes for the proposed works. 6. Ms Gribble argues that the applicant must show which trees are specifically causing damage, rather than a general assumption that the row of trees is causing damage. The applicant 1. Mr Walker offered to undertake further investigations to discover which trees are causing damage. However he has had time to do this when preparing his application, and I see no reason to allow further evidence at this point. He says it would be unreasonable to dig up the entire length of the driveway. 2. Mr Walker says that if costs are to be apportioned, Ms Gribble should pay 95% of the costs of repair. He does not expect her to contribute to repairs to the entire driveway, rather only the section adjacent to her trees. 3. Mr Walker says that similar trees on another adjacent property that fell had experienced ground level changes around them, affecting their root zones. He says their condition was not indicative of the trees on Ms Gribble's property. Jurisdiction 1. Having observed the driveway, the location and pattern of its cracks, and the size and proximity of the neighbouring cypress trees, I am satisfied that the trees have contributed to damage of the driveway. Based on the size, orientation and appearance of the exposed root, I am satisfied that it is a root of the adjacent cypress tree. I am further satisfied that it has caused cracking of the driveway surface. 2. A tree does not have to be the sole cause of damage. As discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152 at (179), the jurisdiction of the Trees Act is enlivened if the subject tree is a cause of damage to the applicant's property, even if there are other causes. Matters to consider (s 12 of the Trees Act) 1. The cypress trees grow in a line less than 2 metres from the common boundary. 2. The trees are a type grown for hedging, and would tolerate pruning. However pruning to reduce their height may have little impact on the ongoing growth of their roots in the long term. For this reason, I will not order pruning. Having said this, I note that the trees are planted as a hedge and would ideally be maintained as one. Orders for interfering with the trees, as opposed to orders for repairs to property or compensation, would also require that individual trees causing damage be identified, so that orders are only made for those trees. This has not been done here. 3. Cutting all roots along the driveway's edge would adversely affect the trees. If the driveway is replaced on a proper base, cutting roots should not be necessary. 4. The trees contribute to privacy, to the garden design and landscape values of Ms Gribble's property, but do not have any historical, cultural or scientific value to the community. 5. Apart from the cypress trees, it is most likely that other causes of the driveway's condition include: the age of the driveway and its construction type; and roots from other trees. For its 40 metres between the end of the cypress row and the street, well away from these trees, Mr Walker's driveway is in a similar condition. Other trees are nearby, and are likely to have caused damage, but in places it appears that some damage is simply a result of the driveway's age and its years of use. 6. Ms Gribble was made aware of the damage in late 2014. Given the lack of clarity around the extent to which her trees may have contributed, it is difficult to see what she could have done in that time. Mr Walker has not provided any quotes for driveway repair works, nor proffered any method of working out apportionment of costs. It also appears likely that the driveway was damaged for some time before it was brought to Ms Gribble's attention. 7. Parts of the driveway toward the street, well away from the cypress trees, show perhaps more severe damage than the cracking near the cypress trees. The need for Mr Walker to repair his driveway has not been brought about by the trees. Were the trees not there, it is likely that he would still wish to replace the driveway for much of its length. Conclusions 1. Because roots of Ms Gribble's cypress trees have contributed to driveway damage, it is reasonable that she pays part of the costs of its repair. However the contribution is relatively minor, certainly less than half, and is limited to the section of driveway adjacent to her trees. Estimating that 40% would be a reasonable contribution, this amount will be halved because approximately half of the damage is likely to have occurred before Ms Gribble was aware of it. 2. The need for Mr Walker to repair his driveway appears to arise primarily from its age. He has been using the driveway in its current condition for some time, and could possibly continue to do so. However he should of course replace it if he so desires. Therefore the task of obtaining quotes falls to Mr Walker, should he decide to proceed with repairing the driveway. Orders 1. The application is upheld and the orders of the Court are: 1. The applicant, if he wishes to replace his driveway, is to have the works completed and paid for within 12 months of the date of these orders. 2. If the works are not completed and paid for within 12 months of the date of these orders, the following orders lapse. 3. The applicant is to obtain three quotes for replacing his driveway using similar materials (50 mm bitumen surface on a minimum 50 mm base). The quotes are to be itemised, clearly showing the cost of replacing the 40-metre section of driveway adjacent to the neighbouring cypress trees, and separately showing the cost of replacing the remainder of the driveway. 4. The applicant is to provide the respondent with copies of the three quotes prior to the works commencing. 5. Within 14 days of completion of the works, the applicant is to provide the respondent with a copy of the paid tax invoice for the works. 6. Within 14 days of receiving a copy of the paid tax invoice for the works, the respondent is to pay the applicant 20% of the lowest amount for replacing the 40-m section of driveway adjacent to her trees, from the three quotes in (3). ____________________________ D Galwey Acting 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: 30 December 2016