Land and Environment Court New South Wales Medium Neutral Citation: Paull v Robinson & anor [2017] NSWLEC 1219 Hearing dates: 27 April 2017 Date of orders: 27 April 2017 Decision date: 27 April 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; sufficiency of evidence; role of the Court Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Laraine Paull (Applicant) Brian and Wendy Robinson (Respondents) Representation: Applicant: Laraine Paull (Litigant in person) Respondents: Brian and Wendy Robinson (Litigants in person) File Number(s): 22741 of 2017 judgment 1. COMMISSIONER: The applicant purchased her Robertson home about 10 years ago. Growing on the adjoining property there were, and remain, a number of established trees including a Ginkgo biloba (Maidenhair Tree) and four Camellias. 2. The applicant contends that roots from these trees have caused, and or could in the near future cause, damage to her property, specifically a concrete path along the western side of her dwelling, and to the brickwork of the northwest corner of her dwelling. The dwelling is thought to have been constructed about 30 years ago. 3. The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of the five trees. 4. The respondents value the trees and do not want to remove them. They dispute the factual basis of the applicant's claim. 5. The trees are numbered on the application claim form from 1-5; the species were confirmed on site. The trees were planted by the respondents about 40 years ago and are growing in a large garden bed on the eastern side boundary of their property. The trees are: T1 Ginkgo biloba, T2 – Camellia japonica, T3 – Camellia sasanqua, T4 – Camellia japonica, and T5 – Camellia sasanqua. The Ginkgo is relatively small for its age. 6. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned: (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 1. Likelihood of injury is not pressed. The tests in s 10(2)(a) must be applied to each the tree the subject of an application. 2. The 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…". 3. As 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. 4. During the on-site hearing I observed the damage allegedly caused by the respondents' trees (also shown in photographs included in the Application Claim Form). 5. The middle of three sections of the concrete path is lifted by about 15mm at its north-western corner; the sections are separated by expansion joints. The lifting tapers off within about 200-250mm to being level where it meets the wall of the dwelling. All panels are otherwise in good order and fully functional. 6. The applicant contends that the uplift has been caused by a large root from the Ginkgo which she said she observed about 12 months ago when the area was excavated for some reason. The first respondent stated that he dug down about a metre some 3 months ago and cut any roots he found. According to an arborist's report prepared for the respondents by Mr Paul D'hondt, the roots were generally confined to the top 300 mm. 7. There was nothing in evidence at the hearing to confirm that roots from any of the respondents' trees have caused the lifting of the path. The applicant declined an opportunity to excavate the area whilst I was present. 8. The nearest trees to the north-western corner of the dwelling are Camellias T2 and T5, T5 is some distance away. Three of the lowest bricks near the corner are cracked. 9. There is no evidence to prove, even on the balance of probabilities, that the crack in the brickwork has been caused by the respondents' trees or by anything else. For example I note that a downpipe from the roof enters the ground close to this corner. 10. Even if I am wrong in this finding, as a matter of discretion, it is unlikely that removal of the trees would be ordered as the damage is minor, the trees provide considerable amenity, and the distance between the trees and the paving is sufficient for other options to mitigate any future damage. 11. The applicant had assumed that as the Commissioner appointed to hear the matter has arboricultural expertise that I would be undertaking the necessary investigations to prove the applicant's case. It is not the Court's responsibility to find evidence; the onus in these matters is on an applicant to provide the evidence/ factual basis to substantiate their contentions or assumptions. The role of the Court is to critically assess whatever evidence the parties wish to rely upon within the parameters imposed by the legislation and then to adjudicate the matter. 12. The applicant raised concerns about possible future damage. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made only if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence. 13. On the basis of what is before me, there is no evidence to prove the applicant's contentions. Therefore I cannot reach the level of satisfaction required by s 10(2)(a). As a consequence, the Orders of the Court are: 1. The application to remove five trees growing on the respondents' property is dismissed. ___________________ Judy Fakes 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: 02 May 2017