Land and Environment Court New South Wales Medium Neutral Citation: Argyrou & anor v Henderson & anor [2017] NSWLEC 1422 Hearing dates: 19 July 2017 Date of orders: 08 August 2017 Decision date: 08 August 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: See [48] Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury; damage over period of applicants' ownership; compensation and rectification Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Texts Cited: Nil Category: Principal judgment Parties: Mr Costa Argyrou (First applicant) Ms Kateryna Argyrou (Second applicant) Ms Claire Henderson (First Respondent) Mr Robin Bromby (Second respondent) Representation: Applicants: C & K Argyrou (Litigants in person) Respondents: Mr Nicholas Eddy (Solicitor) Solicitors: Nicholas Eddy & Company File Number(s): 143111 of 2017 Publication restriction: No judgment 1. COMMISSIONER: The applicants became the registered proprietors of their property on 19 January 2017. Approximately four months after the applicants purchased their Paddington property, they applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for the following orders to be made at the respondents' expense: * removal of the respondents' large Liquidambar, its trunk and roots; * compensation of $2,840 for various reports and invoices; * removal and replacement of the sewer quoted at $12,000; * landscaping including supply and installation of new pavers quoted at $14,278; and * removal and replacement of the existing timber dividing fence quoted at $2,740. 1. The orders are sought on the applicants' contention that the tree has encroached onto their land, has caused physical damage to their property and house; and is unduly interfering with the comfortable and convenient enjoyment of their property (presumably by their tenants). 2. In regards to the order sought tor compensation for various reports, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court. 3. In their Application Claim Form the applicants state that the tree has caused the following damage: * blocking of gutters and downpipes leading to water and moisture damage; * lifting, cracking and blocking of the earthenware sewer pipes; and * lifting of pavers which has also created a trip hazard. 1. The applicants submit that the roots will inevitably cause damage to the foundations of their dwelling. In support of this claim they rely on a letter from a structural engineer, Mr Martin Zimmerman (Exhibit C) and documents, invoices and reports in Exhibit B - Affidavit of Costa Argyrou, (the first applicant) to support their case. 2. The applicants' property (no. 79) is the adjoining property to the southwest of the respondents' property (no. 81). The parties' dwellings are two in a row of terrace houses. 3. The respondents have lived on their property for some 23 years, over which time they state that the applicants' property had been leased by a succession of owners. Further, in that time, the respondents had not heard of any complaints about the tree from any of the tenants, including recent tenants with an eight year old son who frequently played with his friends in the backyard of no. 79. They contend that as the applicants had lived for some years in the adjoining property to the northeast (no. 83), the applicants were well aware of the Liquidambar growing in the respondents' backyard when they purchased their property. The respondents maintain that Liquidambar roots were clearly visible in the applicants' backyard when the applicants purchased their property and that none of the alleged damage has occurred since the applicants purchased their property. 4. In regards to the sewer claim, the respondents note that two other large trees are in the vicinity, a Eucalyptus microcorys (Tallowwood) on the adjoining property to the northeast of their property (no. 83), and a Celtis sp. on the adjoining property to the southwest of the applicants' property (no. 77). The respondents stated that they too have had sewer blockages and ten years ago had the sewer relined; this did not entail the removal of the old pipes and there have been no further problems. They submit that the applicants have not considered this alternative. 5. In the second respondent's affidavit (Exhibit 1), comments are made regarding Mr Zimmerman's report. The uncontested statement is that after purchasing their property the applicants gutted the property including excavating rooms at the rear of the dwelling which adjoin the courtyard. The area was then re-floored. The respondents assume that if there had been structural damage to the rear of the property it would have been obvious then. 6. The respondents do not wish to remove the tree as they value it for the shade and amenity it affords their property. Jurisdiction 1. 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. 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…". In Robson v Leischke [2008] NSWLEC 152 at paragraphs [176] to [189] Preston CJ discusses the requirement for a clear nexus between the tree, the subject of the application, and the damage to property. At [179] in Robson, His Honour notes that a tree that is the subject of the application does not need to be the sole cause of the damage in order to engage the court's jurisdiction. The tree – expert opinion 1. The tree the subject of the application is a mature Liquidambar styraciflua (Liquidambar) growing in the respondents' small paved courtyard. The tree is wholly located on the respondents' property but overhangs other nearby properties including that of the applicants. 2. Both parties obtained arborist's reports. Neither arborist undertook an aerial inspection of the tree. 3. The applicants engaged Mr Ross Jackson, consulting arborist, to inspect and report on the tree. Mr Jackson did not attend the on-site hearing. In his report dated 11 May 2017, Mr Jackson states that the tree shows good vitality, has a single trunk dividing into two stems with included bark between them. He notes that the included bark appeared stable when inspected. Mr Jackson states there are extensive roots growing above and through the segmented pavement at the rear of the applicants' property, which he classifies as 'structural roots'. Presumably on the basis of the information supplied to him, Mr Jackson states that the sewer plan shows the pipes located within the root plate and roots have been entering the sewer. He notes that the boundary fence is slightly out of alignment. 4. Mr Jackson considers that the roots within the calculated Tree Protection Zone (TPZ) of 8.6m radius will need to be removed in order to return the pavement to grade and avoid a trip hazard. He opines that the sewer line will have to be removed and replaced with PVC and this will require root excavation which would destabilise the tree. Mr Jackson considers that pipe replacement using thrust boring would also entail some root removal. He states that even if the work can be done with limited root removal (implied in comments in [3.2.5] of his report) a root barrier would still need to be installed along the common to prevent roots from re-entering the property, which he says would effectively cut the root plate in half thus predisposing the tree to windthrow. 5. Mr Jackson recommends removal of the tree (with approval from Woollahra Council) and the costs of rectification to be the responsibility of the respondents. 6. The respondents' arborist Mr Peter Hannigan, prepared reports (Exhibits 2 and 3), and attended the on-site hearing. Mr Hannigan describes the tree as having very good to excellent vitality. The tree has co-dominant stems with included bark at their base. Mr Hannigan opines that the tree has produced extra tissues (described as 'adaptive growth') around the stem union which is more rounded on the western side and more pointed on the eastern side. In his opinion, the more rounded form indicates occlusion with structural strength increasing and the more pointed form indicates the new tissue is not occluding the stem union. After his initial visual inspection, Mr Hannigan determined that no further diagnostic testing was warranted. He concludes that while the bark inclusion between the co-dominant stems presented a substantial structural defect, there is no separation and good adaptive growth on the western side, the stems are upright and his view, failure is unlikely to occur. Mr Hannigan states that given the low likelihood of failure, no action was required however, for 'peace of mind', a restraint system could be installed in the canopy. 7. Mr Hannigan notes that brick pavers have been dislodged/ raised in some sections of the applicants' courtyard with other pavers being laid between existing surface roots. He opines that the pavers appear to have been in situ for some time. In regards to the sewer, Mr Hannigan states that while it is clear that roots are causing blockages in the applicants' sewer it is not clear whether the Liquidambar caused the original disruption (which would have enable roots to enter the pipes) or are from other nearby trees including a Celtis or Jacaranda. He notes that Mr Jackson does not consider alternative methods of prevention such as relining. 8. In Mr Hannigan's opinion, it is possible that the applicants' courtyard could be landscaped in a way that would minimise root removal; this could include raising the grade and using more flexible materials in the vicinity of the roots. 9. In response to the applicants' complaints about the tree, in April 2017, shortly after returning from an overseas holiday, the respondents filed a Tree Works Application with Woollahra Municipal Council for pruning of roots on the applicants' property. This was determined by refusal on 27 June 2017. The reason provided by council's Tree Management Team Leader, Mr Andrew Simpson, was that severance of surface and other large diameter roots will likely result in the destabilisation of the tree. Mr Simpson's written assessment was provided at the hearing (Mr Simpson did not attend). Mr Simpson considered Mr Hannigan's report. Apart from the destabilisation of the tree, Mr Simpson addresses the attachment of the co-dominant stems. In his opinion, the adaptive growth described (and photographed) by Mr Hannigan, is indicative of a crack, possibly a transverse crack. Mr Simpson notes that the respondents were advised that it would be prudent for an aerial inspection and an internal diagnostic test to determine whether there is an internal defect. He states that Mr Hannigan's report did not provide enough information to persuade council to change its position that a more detailed investigation of the attachment should be made. 10. Both parties' evidence includes an email to the respondents from Mr Tom O'Hanlon, Director of Technical Services, Woollahra Municipal Council, dated 13 June 2017. Mr O'Hanlon refers to the Tree Works Application, the Class 2 Application under the Trees Act, and Mr Simpson's assessment. Mr O'Hanlon acknowledges the difference of opinion between all three arborists in respect of the stability of the attachment of the co-dominant stems. He notes Mr Simpson's advice that this type of attachment is a known point of failure, particularly within Liquidambars, and that council has removed seven Liquidambars of a similar size and age in the past 18 months, after failures of large branches with similar defects. Mr O'Hanlon reiterates the need for further internal diagnostic testing. He also notes that the disruption to the pavers appears minor and that no information had been supplied indicating alternative measures that would retain the tree. Alleged damage Gutters and downpipes 1. The applicants contend that debris from the Liquidambar blocked the gutters and downpipes. A photograph taken in February 2017, included as Annexure 1 in their claim form shows leaves in guttering. They state that water entered their dwelling during a period of heavy rainfall following a three week period of not cleaning the gutters. The link to a video of this event could not be opened. 2. There is no other evidence of any specific damage allegedly caused by leaves in the guttering, nor is there any particular claim made for it. 3. While I am not satisfied that any damage has occurred to the guttering as a consequence of the leaves, or is likely in the near future to occur, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter. 4. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paragraphs [168] to [173] discusses 'damage' in general. In this discussion, his Honour specifically noted (at [171]) that: 171 However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7. 1. Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. 1. There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis or that the level of external maintenance required is entirely unreasonable; and so it is with this matter. The sewer 1. The sewer line appears to run close to the common boundary, and thus close to the tree. A tax invoice from MA Stewart Plumbing dated 6 April 2017 indicates that the sewer was cleared by jetting and that a camera showed roots to be present although there are no photographs of this event included in the application claim form. 2. Two photographs included in a report dated 10 April 2017, prepared by Mr Nicholas Louridas of N.L. Plumbing & Fire protection Services show what are said to be cracks in the applicants' earthenware sewer pipes and roots growing in sections of pipe. Mr Louridas opines that the roots are from the respondents' tree although how he reaches that opinion is not stated. 3. There is no evidence to prove to the level of satisfaction required by s 10(2)(a) that the roots are those of the Liquidambar and therefore that any compensation or rectification at the respondents' expense should be ordered. As stated elsewhere, there are a number of other trees in the vicinity. It is not clear from the photographs just where the roots are located within the pipes. Even if there are roots of the Liquidambar in the sewer, there is no evidence to prove that this damage occurred during the short period in which the applicants owned their property. Indeed, in his affidavit, Mr Argyrou, the first applicant, states at [10] "Soon after purchase of 79 Elizabeth Street in February 2017, I began to notice a pungent smell from the sewer line as well as the toilet of the property being repeatedly blocked." Even if the roots of the Liquidambar are found to contribute to the blockage, I agree with the respondents that the applicants do not appear to have given serious thought to relining the pipes thus mitigating further damage and exacerbating a problem that appeared to predate their purchase of the property. 4. As consequence of the insufficient evidence, this element of the claim is dismissed. House footings 1. The applicants contend that unless the tree is removed, the roots of the Liquidambar will inevitably cause damage in respect of the foundations of their dwelling. 2. The applicants rely on the affidavit of Martin Zimmerman (Exhibit C), a structural engineer. In a letter attached to the affidavit, dated 24 June 2017, Mr Zimmerman states that the objective of his visit to the applicants' property was to determine the structural impact of roots emanating from the respondents' Liquidambar. Mr Zimmerman describes the small yard and states that it was covered with brick pavers, placed directly on the substrata. He notes the location of the Liquidambar and the lifting of pavers to create a very uneven surface. Apart from being a trip hazard he also states that rainwater is directed towards the applicants' dwelling. Mr Zimmerman states that the "root tentacles" have extended across the entire yard up to the rear wall of no. 79. He states: 'No excavation was carried out to determine if the root system extended to the underside of the footings'. 3. In Mr Zimmerman's opinion, retaining the tree, and to avoid trip hazards, would require the rear yard of 79 to be 'suspended' over the current root system then repaved. However, he states this would increase the level of the yard to be higher than the internal floor level thus leading to potential ingress of water. He considers this to be impractical and expensive. 4. Despite not carrying out any excavations, Mr Zimmerman states that the roots have arrived at the rear wall of the applicants' dwelling, and given the health of the tree, this can only result in the tree roots spreading their "tentacles" further and further. In his opinion, 'there is no question that eventually the tree will cause structural damage to 79..' Mr Zimmerman recommends the removal of the tree. 5. Mr Zimmerman makes a number of comments about the tree which I consider to be outside his area of expertise and to which no weight can be given. 6. The issue of the paving is considered below. In regards to Mr Zimmerman's opinion about future damage to the footings is concerned, there is no evidence to substantiate Mr Zimmerman's opinion, especially as he clearly states that he did not carry out any excavations. Therefore there is insufficient evidence to prove that this is anything more than a hypothetical possibility; and removal of the tree will not be ordered on this basis. Pavers 1. I am satisfied that the roots of the Liquidambar have lifted some of the pavers in the applicants' rear courtyard and I am satisfied that the relevant tests in s 10(2) are met and the Court's jurisdiction to consider what, if any, orders should be made, is engaged. 2. Before making any orders, relevant matters under s 12 of the Trees Act must be considered. Relevant here: * Removal of the tree or any pruning of any part of it would require permission from Woollahra Municipal Council (s 12(b)). As stated previously, the respondents applied to prune the roots but this was rejected on the basis of potentially destabilising the tree. * With the arboricultural expertise I bring to the court I agree that excessive removal of roots could both destabilise the tree and detrimentally affect its health (s 12(b2)); * The tree contributes to the landscaping, garden design, shading and amenity of the respondents' land (s 12(b3),(e)); * The tree can be seen from a number of nearby properties and therefore contributes to public amenity (s 12(f)); 1. Of all of the matters to consider in s 12, I consider s 12(h) to be most relevant. While the roots of the Liquidambar have lifted some of the pavers, the uncontested evidence of the respondents is that the paving was not done professionally. Mr Zimmerman observes that the pavers have been placed directly onto the substrate, by which I assume he means soil. There are many undulations and areas of apparent subsidence which may be unrelated to roots. The email from Mr O'Hanlon from the Council states in part: Furthermore, the damage to the paving is considered minor and no information has been supplied which demonstrates that the damage cannot be repaired or restored with the retention of the tree. While the application claim form contains a quote for $14, 278 to remove and replace the paving, there is no design or consideration of any other type of landscaping that could accommodate the tree and provide a reasonable level of amenity. As observed on site, there is a degree of level change between the rear lane and the courtyard that could accommodate root retention including some future expansion of roots. While the applicants maintained this would affect drainage, there does not appear to have been any attempt to look at alternative landscaping solutions. I also note that the natural fall of the current paving, absent root deflections, is towards the house. I am also satisfied that the lifting of the paving was clearly visible when the applicants inspected the property prior to purchase and when they finally settled. There is no evidence to demonstrate any increase in damage in the time the applicants have owned their property to justify the re-landscaping of the courtyard at the respondents' expense. 2. For these reasons, no orders will be made for the removal of the tree on the basis of the paving or for any rectification at the respondents' expense. The fence 1. The only reference to the damaged fence appears to be an observation made by Mr Jackson in his report that the fence is slightly out of alignment [3.1.f of his report in Exhibit A]. The applicants have included a quote for a minimum of $2740 to replace the timber dividing fence and paint it dark blue. 2. During the site inspection I observed a very minor displacement of a few palings which might have been caused by tree roots. The fence is in good order and fully functional. Again, there is no evidence to demonstrate that any displacement has occurred since the applicants purchased their property. This claim is unjustified and no orders will be made for any replacement of the fence at the respondents' expense. If necessary, minor trimming of the bottom of the palings could accommodate future growth. Tree structure 1. With the arboricultural expertise I bring to the court and having read the arboricultural evidence, the comments from the council, and with the benefit of seeing the tree, I share council's concerns that the nature of the reaction wood/ adaptive growth at the base of the co-dominant stems warrants further aerial inspection and internal diagnostic testing. This is a structural defect that can lead to stem failure. Given the size of the stems and the number of nearby targets, it must be taken more seriously. While Mr Hannigan notes that one side of the adaptive growth is rounded, the other side is quite pointed, and in my opinion could be indicative of a crack. With my knowledge of the much cited 'Visual Tree Assessment' method, this particular feature on this species should be a trigger for the next level of assessment which is an internal diagnostic test. There are a number of methods available and a number of consulting arborists who specialise in such testing. These methods and specialists would be known to all of the arborists who have commented on this tree. While stem failure may not be imminent, the stability or otherwise of the union requires clarification. Conclusions and orders 1. Having heard from the parties and considered the evidence, I have come to the conclusion that the removal of the tree at this stage is not warranted. The applicants have not provided any evidence to demonstrate what could only ever be an extremely minor to negligible increase in any damage allegedly caused by the Liquidambar in the very brief period over which they have owned their property. It is unreasonable to expect the respondents to pay for comprehensive rectification of a property that was effectively in that condition when they purchased it. While I accept that the roots of the Liquidambar have displaced pavers and may continue to do so, I agree with the council's assessment that the disruption is minor, and with Mr Hannigan that there are other possible means of managing paving without excessive removal of roots. In regards to the other elements of the claim, there is simply insufficient evidence to achieve the level of satisfaction required by s 10(2). Therefore no compensation or rectification costs will be ordered. 2. That said, for the reasons explained in [45], given the included bark and nature of the reaction wood around the junction of the co-dominant stems, I am sufficiently concerned about the potential risk of failure of the stems, that orders will be made for the respondents to engage and pay for a suitably qualified and experienced consulting arborist with a 'Resistograph' or 'Tomograph' or other similar device to assess the integrity of the stem union and to prepare a report for the ongoing management of the tree. This internal diagnostic testing is to be combined with an aerial inspection of the union. There is no obligation to provide the full report to the applicants however some proof of the process, such as a tax invoice for the completed work, should be provided to them within 21 days of the undertaking of the work. If the tree remains, the internal diagnostic testing and aerial inspection is to be carried out every two years until such time as the tree is removed. Depending on the advice of the consulting arborist, the respondents may need to apply to council for permission to carry out any recommended works. 3. On this basis, the Orders of the Court are: 1. The application to remove the tree is dismissed. 2. The application for compensation is dismissed. 3. Within 60 days of the date of these orders the respondents are to have engaged and paid for a consulting arborist with a minimum qualification in Arboriculture of AQF level 5 to undertake an aerial inspection and internal diagnostic testing, using one of the methods mentioned in [47] of this judgement, of the junction between the co-dominant stems of the Liquidambar. The diagnostic work and reporting is to be completed within this time frame. The report is to include recommendations for the management of the tree. 4. Withing 21 days of the receipt of the arborist's report, the respondents are to provide the applicants with proof that the investigation was carried out. 5. The works in order (3), being the aerial inspection, internal diagnostic testing and reporting are to be carried out every two years, within two weeks either side of the anniversary of the initial inspection and testing, until such time as the tree is removed. ____________________________ Judy Fakes Acting Commissioner of the Court Amendments 14 August 2017 - Amendments made under the Slip Rule 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: 14 August 2017