Land and Environment Court New South Wales Medium Neutral Citation: Peacock v Hanna & anor [2017] NSWLEC 1323 Hearing dates: 7 June 2017 Date of orders: 07 June 2017 Decision date: 07 June 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 25. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; tree already removed; fence; orders for fence replacement. Legislation Cited: Dividing Fences Act 1991 Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riordan & Anor [2011] NSWLEC 1009 Category: Principal judgment Parties: Mary Peacock (Applicant) Niki and George Hanna (Respondents) Representation: Ms Mary Peacock, Litigant in Person (Applicant) Mr Daniel Massey, Solicitor (Respondents) File Number(s): 59247 of 2017 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. Until recently a Tree of Heaven (Ailanthus altissima) grew on Mr and Mrs Hanna's Granville property, which is occupied by tenants. Most likely self-sown, the tree grew against the boundary fence shared with the neighbouring property, owned by Ms Peacock ('the applicant'). The tree was removed by the Hannas ('the respondents') in October 2016. It was poisoned and its stump was ground out. 2. Ms Peacock has applied to the Court, pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'), seeking orders to remedy damage to her property. Clarifying the orders she seeks at the onsite hearing, Ms Peacock wants: 1. The timber paling fence along the common boundary to be removed and replaced, with the cost shared equally by the parties. 2. A low retaining wall constructed at the base of the fence, where necessary, along the common boundary. She says she is willing to pay for this component. 3. The concrete path between her dwelling and the common boundary removed at the Hannas' expense. 4. Roots beneath the path professionally removed, poisoned or otherwise treated, at the Hannas' expense. 5. Her laundry steps removed and replaced at the Hannas' expense. 6. Services beneath the path to be located at the Hannas' expense. 7. The alignment of an air-conditioning unit to be adjusted at the Hannas' expense. The parties disagree on cause of the damage 1. Ms Peacock has submitted documents, quotes, reports and photographs supporting her application. 2. Ms Peacock says that the tree grew against the fence. This is not disputed. 3. Ms Peacock noticed between 2014 and April 2016 that the tree's stem was pushing part of the fence out of alignment. 4. By April 2016 Ms Peacock noticed a crack in her concrete path next to the base of the tree. She also noticed that the path was lifting and that her laundry step, about one metre from the tree, was cracked. 5. In May 2016, having been unable to successfully communicate with the Hannas about other issues with the tree (debris, for instance), Ms Peacock sought mediation through the Community Justice Centre. 6. Following removal of the tree by the Hannas in October 2016, lifting of Ms Peacock's path increased, she says, due to tree roots. Suckers of the same tree began shooting in various areas, noticeably between her path and her dwelling, and between her path and the fence, at various locations including along the side and even at the front of her dwelling. 7. Ms Peacock says, and the Hannas don't appear to disagree, that the entire length of the fence is dilapidated and may need replacing. 8. Ms Peacock also says she doesn't want her path replaced in the short term, as she wants to monitor and deal with any regrowth of roots that might be found there once the existing path is removed. 9. The Hannas don't accept that their tree damaged Ms Peacock's path. They say no roots have been found beneath the path. Rather, they contend that the gap that can be seen between the bottom of the path and the ground below, along its edge nearest the fence, demonstrates that the path was poorly constructed on an unsatisfactory base. They point out that the engineering report submitted by Ms Peacock (Kneebone and Beretta Consulting report of 16/1/17 (Exhibit C)), identifies the cracked laundry step but does not infer in any way that tree roots caused this. 10. Mr Massey (solicitor for the Hannas) suggested that Ms Peacock's photos demonstrate that her air-conditioning unit was already off level prior to the period she suggested. He points out that if indeed the path has become more raised since the tree was removed, this would only be a result of the Hannas carrying out her wishes to remove the tree. Findings 1. I am satisfied on the visual evidence available at the onsite hearing that the tree, by its stem and a buttress root growing against the timber boundary fence, has damaged a part of the fence. As the fence is partly owned by Ms Peacock, this enlivens the Court's jurisdiction (s 10(2)(a)). 2. The timber boundary fence is ageing and dilapidated, its alignment worse in areas well away from, and clearly not in any way associated with, the tree. The parties agree to the need for its replacement. Because the tree has damaged the fence, I can make orders pursuant to the Dividing Fences Act 1991 for the remainder of the boundary fence. 3. The ground on Ms Peacock's property is slightly higher than that on the Hannas' property, so the base of the timber fence has acted as a retaining wall, a role for which it is unsuitable. 4. The level difference between the land on either side of the fence is not the result of actions of either party, but an issue that both must address. I see no need for Ms Peacock to bear the cost of a low retaining wall, rather than it being shared equally. 5. Suckers have sprouted between the path and Ms Peacock's dwelling, indicating that the tree's roots are present here. However there is no evidence adduced that roots of any significant size grow beneath the path along its length. 6. I cannot exclude the possibility that roots grow beneath the path, but with the absence of any evidence of this, and considering the apparently poor interface beneath the path and the ground below, I cannot be satisfied to the degree required by the Trees Act that the tree has lifted the path. 7. The small crack in the path is adjacent to the site of the removed tree. In the absence of other explanations for this crack I accept that the tree caused this crack. However, the crack is so inconsequential in this ageing concrete path, without resulting in any trip hazard or significant gap, that it is de minimis. I would not make any orders for this element of the path alone. 8. No evidence has been adduced linking tree roots to cracking of the laundry step. Again, while I cannot exclude this possibility, I cannot be satisfied as required by the Trees Act that such a nexus exists. 9. If the Hannas only became aware of these tree issues in May 2016, and then removed the tree in October 2016, I accept their contention that they have hardly "sat on their hands" for years allowing the problem to worsen. They have now taken what action they can with regard to the tree. Taking further action to remedy any damage to Ms Peacock's property would require, firstly, a clear demonstration of the nexus between the tree and each element of damage and, secondly, consideration of the Hannas' actions, or lack thereof, in response. The evidence adduced does not satisfy me that roots have caused damage. 10. Ms Peacock may of course find further evidence of roots if she removes the path. In McCallum v Riordan & Anor [2011] NSWLEC 1009, Moore SC found that discovery of evidence that would have existed at the time of an earlier application, without a change in relevant circumstances, would not be considered by the Court in a new application. On the other hand, in Hinde v Anderson & anor [2009] NSWLEC 1148, Moore SC and Thyer AC described a change of circumstances that enabled a further application in a tree dispute. Should there be a future change to the circumstances that existed at the time of this hearing, Ms Peacock could make a further application to the Court. Conclusion 1. As a result of the above, I will make orders for replacement of the entire length of the boundary fence, pursuant to the Dividing Fences Act 1991. Orders will also address the need for a low section of retaining wall along part of the boundary. The parties will share the cost of this. 2. If Ms Peacock wishes to remove her concrete path, remove or poison tree roots on her property, or address any other issues on her property, that is a matter for her. Orders 1. Therefore the orders of the Court are: 1. Within 45 days of the date of these orders each party is to obtain two quotes for the removal and replacement of the timber fence along their common boundary. The new fence is to be of timber palings of a similar height and style to the existing, with a low retaining wall at its base along sections where this is required. 2. Within 60 days of the date of these orders the parties are to select the cheapest quote, or another if they agree on one, and engage the contractor to complete the works within 100 days of the date of these orders. 3. The parties are each to pay the contractor 50% of the cost of the works. 4. Both parties are to arrange and allow all access to their properties for the works to be completed. 5. All other elements of the application are dismissed. ____________________________ 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: 23 June 2017