Land and Environment Court New South Wales Medium Neutral Citation: Low v Muir & anor [2017] NSWLEC 1386 Hearing dates: 19 July 2017 Date of orders: 19 July 2017 Decision date: 19 July 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See paragraph [18] Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991 Land and Environment Court Act 1979 Cases Cited: Low v Muir [2012] NSWLEC 1092 Low v Muir (No 2) [2013] NSWLEC 153 Category: Principal judgment Parties: Fay Low (Applicant) William and Allison Muir (respondents) Representation: Applicant: Mrs F Low (Litigant in Person) First Respondent: Mr J Varoutsos (Agent) Second Respondent: Mrs A Muir (Litigant in person) File Number(s): 56193 of 2017 judgment 1. COMMISSIONER: In 2012, Mrs Low applied under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of seven trees growing on the Muir's property along the common side boundary. The orders were sought on the basis of Mrs Low's contention that the trees were blocking her sewer and lifting concrete paving at the rear of her property. 2. In Low v Muir [2012] NSWLEC 1092, Acting Commissioner Galwey notes that the parties came to an agreement as to an appropriate course of action. After considering the relevant jurisdictional and discretionary matters, consent orders were made for the removal of three of the trees and the poisoning of their stumps. It was agreed that a Paperbark be retained if possible. Orders were also made for the removal and replacement of the dilapidated dividing fence in accordance with s 13A of the Dividing Fences Act 1991 (Fences Act). 3. The nominated trees were removed however a Fiddle-leaf Fig has regrown. The fence has yet to be replaced. 4. The application now before the Court requests the removal of the Paperbark, several small self-sown trees, and the Fiddle-leaf Fig. Mrs Low also seeks the removal and replacement of the sewer and concrete paving at the Muir's expense. It is agreed that the cost of replacing the common boundary fence be shared equally. 5. Orders are also sought for reimbursement of the application filing fee. In regards to this element of the claim, Commissioners do not have the jurisdiction to award such costs and a separate Notice of Motion would have to be filed and be determined by a Registrar or Judge of the Court. 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. Injury is not pressed. Concrete 1. Concerning the damage to the concrete, I am satisfied that the roots of the Paperbark, which is very close to the boundary, have lifted an approximately 3-4 m2 section of concrete paving immediately adjoining this tree. Mrs Low's uncontested statement is that the lifting has worsened since the previous application. There are many other cracks in the concrete however, as noted in Acting Commissioner Galwey's judgment, the age of the concrete is a significant factor. I noted that there are no expansion joints in the extensive slab. Mrs Low stated that the concrete was in place when she purchased her property in 1972. While the remaining concrete is cracked, it is generally level and functional and there is no evidence that roots of the remaining trees are the cause of this cracking. 2. As the Fiddle-leaf Fig is intertwined with the Paperbark, it is also likely that the roots of this tree have contributed to the lifting. 3. As a consequence, I find the jurisdictional test in s 10(2)(a) satisfied and the Court's jurisdiction to make orders is engaged. 4. While the Paperbark contributes to the general amenity of the Muir's property, there is no way to abate the damage to Mrs Low's property and orders will be made for the removal of the tree and the grinding of its roots. Given the proximity and relationship of the Fig to the Paperbark, this tree is to be removed and its roots ground. The Muirs are required to remove and replace the 3-4m2 section of displaced concrete identified during the on-site hearing. 5. Prior to the hearing, Mrs Muir and Mr Muir's agent, Mr Varoutsos, sought quotes for the removal of trees, including the trees nominated by Mrs Low. Their preference is that any works ordered by the Court be carried out as efficiently as possible. 6. Section 38(2) of the Land and Environment Court Act 1979 enables the Court to inform itself in such manner as it thinks appropriate to the consideration of the matter before the Court. Section 2.20 Tree Management: Marrickville Development Control Plan 2011 sets down the council's requirements for the management of trees on private land. In particular, it specifies the species and dimensions of trees requiring council consent as well as those which are exempt from council's controls. In respect of the other small trees, the subject of the application, while the trees are not large enough to pose an imminent threat to Mrs Low's property, and thus don't engage the Court's jurisdiction, they are well below 5m tall and at least two are small Celtis sinsensis (an exempt species in certain circumstances). These small trees do not require consent from Inner West Council and it makes practical sense that these small self-sown trees be removed when the Paperbark and Fig are removed. However, these are not orders the Court can make as the small trees do not meet the jurisdictional tests in s 10(2)(a). Should the Muirs wish to prune or remove other trees elsewhere on their property, the council is the appropriate consent authority. However, notwithstanding any application to the council, the 90 day timetable for the court-ordered trees, as discussed and agreed during the on-site hearing, must stand. Sewer 1. Mrs Low contends that roots have damaged the earthenware sewer pipes to the extent they must be replaced. There is limited material in the application to support this contention. An invoice dated 6.12.12, some months after the first determination, is for the high-pressure clearing of the sewer. According to Mrs Low, there have been no problems with the sewer since then however she remains concerned that the pipes are broken. The other material is a quote for $20,889 for the removal of 50m2 of concrete paving, removal of the old sewer line and its replacement with PVC. There is no report or any other evidence which proves that the Paperbark has caused the damage to the pipes. 2. The material in the file is insufficient to enable me to achieve the requisite level of satisfaction required by s 10(2)(a) and thus this element of the claim is dismissed. However, the prompt removal of the nominated trees will remove any further chance of root incursion into Mrs Low's sewer pipes. Fence 1. I am satisfied, as was Acting Commissioner Galwey, that the Paperbark is a cause of the damage to the fence and thus s 10(2)(a) of the Trees Act and s 13A of the Fences Act are engaged. The parties have obtained a quote for its replacement and will share the cost. Conclusions and Orders 1. I note that the 2012 decision was the subject of a Notice of Motion heard by Biscoe J (see Low v Muir (No 2) [2013] NSWLEC 153) in regards to the respondents' non-compliance with the original orders within the specified (and agreed) timeframe. While the motion was dismissed for the reasons given in the judgment, the respondents should be on notice that non-compliance with Court orders can have consequences. I also note Mrs Muir's strong desire to have the necessary works completed as quickly and efficiently as possible. 2. On the basis of the evidence before me, the Orders of the Court are: 1. Within 90 days of the date of these orders the respondents are to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3 to remove the Paperbark and Fiddle-leaf Fig to ground level and to grind the stumps to a depth of at least 150mm. Any residual roots are to be poisoned. 2. The work in (1) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent. 3. The respondents are to organise and pay for the removal of the dilapidated timber fence prior to the removal of the trees. 4. Within 21 days of the removal of the trees, the respondents are to organise and pay for a suitable contractor to remove and replace the 3-4m2 section of concrete on the applicant's property, identified during the hearing. The section and any remaining roots are to be saw-cut prior to removal and replacement. 5. The respondents are to engage and pay for the agreed fencing contractor to replace the dividing fence. This work is to be completed after the concreting and within 120 days of the date of these orders. 6. Within 21 days of the receipt of a tax invoice for the completed erection of the fence, the applicant is to reimburse the respondents 50% of the agree cost. 7. The applicant is to provide all reasonable access on reasonable notice for the quoting and safe and efficient carrying out of the works in orders (1), (3),(4) and (5). 8. Should either party require additional work to be carried out concurrently by any of the contractors, such as additional fencing or concreting, that work is to be separately itemised, quoted and paid for by the relevant party. _____________________ Judy Fakes Acting Commissioner of the Court Amendments 09 November 2017 - Pursuant to UCPR 36.17, the slip rule, amendments have been made to paragraph 4 & 8. 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: 09 November 2017