Land and Environment Court New South Wales Medium Neutral Citation: Fang v Li & anor [2017] NSWLEC 1503 Hearing dates: 6 June 2017 Date of orders: 19 September 2017 Decision date: 19 September 2017 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 87. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); root damage; damage from falling limbs; when did the damage occur; could the respondents have taken action; engineering evidence; tree dispute principle; investigations that might assist the Court where the applicant claims tree roots have caused damage to a building. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Barker v Kyriakides [2007] NSWLEC 292 Black v Johnson (No 2) [2007] NSWLEC 513 Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Rui Fang (Applicant) Chunyan Li (First Respondent) Yong Xie (Second Respondent) Representation: Counsel Rui Fang, Litigant in Person (Applicant) Justin Doyle, Barrister (Respondents) Solicitors Connor & Co Lawyers (Respondents) File Number(s): 73419 of 2017 Judgment Background 1. Rui Fang ('the applicant') has lived at his Wahroonga property since mid–2013. Behind the original double-storey brick dwelling on his property is a single-storey brick family room extension dating from 1981. 2. Several trees grow on a neighbouring property. Two of these are the subject of Mr Fang's application to the Court, made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act'). 3. Close to the common boundary, and only a few metres from Mr Fang's family room wall, is a large mature Tulip Tree (Liriodendron tulipifera). Mr Fang claims that the tree has damaged his property and will cause further damage if not removed. Also close to the common boundary, and overhanging Mr Fang's front garden, is a Turpentine (Syncarpia glomulifera) that Mr Fang says is likely to cause injury to people on his property. 4. The neighbouring property on which the trees grow is owned by Chunyan Li and Yong Xie ('the respondents'). They have owned and lived at the property since mid–2014. 5. Soon after the respondents purchased their property, Mr Fang asked them to remove the Tulip Tree because it was damaging his property. Ms Li visited Mr Fang's property, where he pointed out damage he said was due to tree roots. From her statements, it appears that Ms Li took Mr Fang's claims seriously. Considering the respondents' recent arrival at their property, their appreciation of the tree and their lack of knowledge about trees, before removing the tree Ms Li reasonably expected that Mr Fang should provide some professionally gathered evidence demonstrating that their tree was responsible for the damage. 6. Despite further discussions between the parties, sometimes by text messages, the respondents were not convinced their tree had caused any damage. Mr Fang then filed his application with the Court. 7. Mr Fang seeks the following orders: * Removal of the Tulip Tree; * Repair of his dwelling's footing and wall nearest the Tulip Tree; * Repair of a concrete path near the Tulip Tree; * Repair of pipes near the Tulip Tree; * Compensation for the cost of these repair works; * Pruning of the Turpentine; * Costs of expert reports and preparing and filing his application. 1. Mr Fang had also sought an order for the respondents to compensate him for the $500 insurance excess he incurred when branches of the Tulip Tree damaged his roof. It is noted here that the respondents have decided to pay him this amount and the parties agree that no such order is required. 2. To support his application Mr Fang obtained reports from: * Andrew Scales (arborist) of Naturally Trees (Exhibit C); * Simon Fagg (engineer) of Shirley Consulting Engineers (Exhibit D); and * Paheer Paheerathan (engineer) of SPAD Consulting Structural and Civil Engineers (Exhibit E). 1. Mr Fang filed invoices showing the costs of these reports and his solicitor's fees: * Solicitor's fees $627; * Naturally Trees $1,435.01; * Shirley Consulting $3,500; * SPAD $3,135. 1. Commissioners of the Court are unable to make orders for costs. If Mr Fang wishes to pursue this element of his application he will need to file a Notice of Motion that would be heard and determined by the Registrar or a Judge of the Court. 2. The engineering and arboricultural experts listed above were not at the hearing and so were not cross-examined. 3. Ms Li and Mr Xie filed two reports: * George Palmer (arborist) of Botanics Tree Wise People; and * Lyle Marshall (engineer) of Lyle Marshall & Partners. 1. Both reports were filed only four days before the hearing, well after the filing date given in the Court's earlier directions. Explanations offered for the late filing seemed frail at best, so in making this decision I do not rely on any material within their reports, but both experts were at the hearing, presenting oral evidence on which they were questioned. The second respondent is joined 1. The application and subsequent documents filed with the Court listed Ms Li as the only respondent, although both Ms Li and Mr Xie own their property. After the hearing the respondents' solicitors informed the Court that they had instructions to consent to Mr Xie being joined as the Second Respondent in the proceedings. For completeness of any orders that might impose a burden on the respondents, Mr Xie is joined as the Second Respondent. Framework of the Trees Act 1. The application's several elements encompass two trees, past damage, ongoing damage and the risk of damage or injury in future. Each of these must be considered separately within the jurisdictional context of s 10(2) of the Trees Act: 10 Matters of which Court must be satisfied before making an order (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. For each tree, any one element of Mr Fang's application may satisfy one of the above jurisdictional requirements, allowing orders to be made for that tree. Before making any orders, I must also consider a range of matters at s 12 of the Trees Act. These take into account such considerations as: the tree's position relative to boundaries and dwellings; protection afforded the tree under other legislation; any environmental, ecological and social benefits of the tree; direct benefits of the tree to its owner; other factors that may be contributing to any property damage caused by the tree; steps taken by either party to prevent damage or injury; and any other matters I consider relevant. The Turpentine 1. Mr Fang alleges the Turpentine is structurally poor and that limbs will fail and cause damage to his property. By the time of the onsite hearing, Ms Li and Mr Xie had received arboricultural advice from Mr Palmer that the Turpentine was unsuited to pruning and should be removed. Mr Palmer suggested that the pruning required to remove hazards would remove so much of the crown that the tree would no longer be viable. The respondents proffered alternative orders that include removal of the Turpentine within 60 days. 2. Having viewed the tree, and bringing my own expertise to the matter, I note that the Turpentine has lost its central leader, so that limbs that were once lateral branches now support the entire crown. The limb over Mr Fang's property contains a fork with included bark, and there are signs of weak branch attachments elsewhere in the crown. Considering these combined defects, I am satisfied that this tree is likely to cause injury in the near future. I accept Mr Palmer's opinion that pruning is not a viable option and I find that this tree should be removed. The Tulip Tree – above ground Falling limbs 1. Limbs have fallen from the Tulip Tree in the past, damaging roof tiles on Mr Fang's family room extension. After he applied to the Court but prior to the hearing, another limb fell during a storm on 18 March, again damaging Mr Fang's roof tiles. This is not disputed. Mr Fang notified his insurer, which paid for necessary repairs apart from the $500 excess Mr Fang incurred. Ms Li stated at the hearing that the respondents will pay $500 to Mr Fang by way of compensation for the excess. 2. Because limbs of the Tulip Tree damaged Mr Fang's property, the Court's jurisdiction is enlivened with regard to this element of his application. 3. Ms Li and Mr Xie engaged arborists to prune the tree approximately one month before the hearing, after the limb failure of 18 March. Arborists removed decayed and hazardous limbs from the crown, and reduced the extent to which limbs overhang Mr Fang's dwelling. From my observations during the onsite hearing, I find that the pruning appears reasonable, was done according to appropriate standards, and no obvious (from a ground-based inspection) defects remain in limbs over Mr Fang's property. The respondents proposed, via alternative orders, an undertaking of regular inspections and pruning. 4. Mr Fang also contends that, despite the pruning done in May, future limb failure cannot be ruled out, especially during storm events that are likely in the near future, or within the next 12 months. He is of the view that all limbs overhanging his property should have been removed. 5. There is no requirement for the respondents to remove all limbs that extend beyond the common boundary. I accept Mr Fang's contention that storms are likely within the next 12 months, a suitable period to consider as 'the near future', as the Commissioners found in Yang v Scerri [2007] NSWLEC 592. I also accept that limb failures are possible during such storms, but I do not accept that limb failures are likely. Pruning has sufficiently reduced the risk of further limb failures in the near future. This does not prevent me making orders for pruning or removing the Tulip Tree. I have already found that limbs have caused damage, so it would be possible to make orders for pruning if I considered they were needed. Given my opinion on the likelihood of limbs causing further damage in the near future, however, I would not make orders for pruning or removing the tree on this basis. Leaves and other debris 1. Mr Fang says his bathroom ceiling is mouldy due to water ingress that occurred when gutters were blocked by the tree's leaves. He pointed this out during the onsite hearing. 2. Firstly, there is nothing to demonstrate that the Tulip Tree's leaves, rather than leaves of other nearby trees, were blocking gutters. If I accept Mr Fang's contention that leaves were from the Tulip Tree, I consider the damage to the ceiling is a result of water ingress. The tree has not directly damaged the ceiling – its leaves were merely sitting in the gutter. Water damage may have been prevented by routine maintenance of the gutters. Even where leaves or twigs have been found to contribute to damage (for instance to degradation of guttering), the Court has consistently found, since Barker v Kyriakides [2007] NSWLEC 292, that such damage could usually be avoided by applicants undertaking reasonable maintenance of their properties. No orders will be made on this element of the application 1. As a consequence of past damage from limbs falling onto Mr Fang's roof, the Court's jurisdiction is enlivened regarding damage by above-ground parts of the Tulip Tree. For the reasons described above, however, I do not find any basis for making orders on this element of the application. The Tulip Tree – below ground 1. Mr Fang says roots of the Tulip Tree have damaged his dwelling, a concrete path and a pipe. The damage that he contends is caused to the dwelling by the tree, and that is documented in his two engineering reports, is comprised of: * a vertical crack at the junction of the original part of the house and the family room extension; and * a 'stepwise' crack (as described by the engineers) above and below the bathroom window in the single-storey extension, close to a large tree root and a short distance from the first vertical crack. 1. Mr Fang says roots have lifted and damaged the concrete path alongside the dwelling, adjacent to the common boundary. He also says roots have grown against and damaged a PVC pipe beneath that path. Engineering reports 1. Mr Fang first engaged Simon Fagg, of Shirley Consulting Engineers, to undertake investigations of the damage in August 2016. Mr Fagg's 'Precis of Site Inspection' describes observations from an inspection on 5 August, including, among others: * the centre of the Tree is located 2.2 m from the external wall; * the base of the trunk is approximately 1.2 m in diameter; * [the concrete path has] no visible expansion joints or sections; * the [dwelling's external] wall is a masonry rendered wall; * stepwise cracking (up to 1.5 mm wide) existed around the bathroom window in close proximity to The Tree; * a vertical crack existed at the junction of the single and double storey sections of the building. 1. Mr Fagg returned to undertake further investigations on 18 August, by which time the "concrete path had been removed over a section approximately 4 m in length". He observed the following in his report. * During the site inspection, a test pit was dug just north of the Bathroom window. The test pit revealed: * Two roots of 260 mm and 130 mm diameter were growing under the footing…; * There were two flattened uPVC pipes originally 100 mm [diameter]. One of the pipes was now 140 mm wide by approximately 30 mm high; * The roots were growing under the footing directly below the 1.5 mm wide stepwise crack…; * A 20 mm copper pipe was located close to the concrete footing. 1. Mr Fagg concluded, without further discussion, that roots from the tree "…have lifted and caused damage to the concrete path" and "…caused minor cracking to the external wall". 2. Mr Fagg's report contains photos showing the damage described, and showing the large roots growing beneath the removed path and against the PVC pipes. The report predates Mr Fang's application to the Court by many months and does not include any acknowledgement that he has read or agrees to comply with the Uniform Civil Procedure Rules 2005. This is perhaps unsurprising, as the nature of the investigation appears to have been to provide Mr Fang with information so that he might determine how to proceed, rather than being a statement to assist the Court. I am not suggesting that Mr Fagg has done any less than what was asked of him. 3. Mr Fang then engaged Mr Paheerathan to prepare a report addressing the damage. The purpose of this report appears to be to support Mr Fang's application, as Mr Paheerathan states on page 1 that he has read the Code of Conduct for Expert Witnesses (Schedule 7 to the Uniform Civil Procedure Rules 2005) and agrees to be bound by the Code. 4. Schedule 7 of the Uniform Civil Procedure Rules 2005, at clause 3, requires that every report prepared by an expert witness for use in Court must state, specify or provide, among other items: * the reasons for each of the expert's opinions; * that a particular matter or issue falls outside the expert's field of expertise. 1. The explanation of Mr Paheerathan's brief is limited to "we inspected the above property to investigate the impact of the tree that is adjacent to the western boundary…". 2. Mr Paheerathan gives a few basic details of the tree, including "Height: Over 10m (Estimation)". Mr Scales' arboricultural report describes the tree as being 24 metres tall. 3. Mr Paheerathan follows these basic tree details with an "Executive Summary" as follows: The tree should be removed and necessary remedial measures be carried out. 1. This is followed by "Observations". There is no description of any investigations undertaken nor what methods were used, but it is apparent from Mr Paheerathan's observations that the pit dug by Mr Fagg and his associate, exposing roots, pipes and foundations, remained open for Mr Paheerathan to observe. 2. Some of Mr Paheerathan's observations bear a striking resemblance in their wording to the earlier observations of Mr Fagg. On page 2 Mr Paheerathan states: "A stepwise cracking (up to 1.5mm wide) existed on the external wall around the bathroom window"; and "The PVC pipe was originally 100mm in diameter and is now 140mm wide by approximately 30mm high." Mr Paheerathan lists several references on page 3 of his report, but does not include Mr Fagg's report in that list. 3. Mr Paheerathan states, early among his observations, that the single-storey section of the dwelling "appears to have been lifted vertically by the root" but does not explain how he came to this conclusion. No measurements of building levels are included in the report. 4. At the third paragraph of his "Observations" Mr Paheerathan states: The roots caused cracks on the wall comes into direct physical contact with structures to make direct structural damage through tree root growth, and the root could exert forces to cause cracks on external wall and to lift the single storey section. [sic] 1. I take this to mean that Mr Paheerathan is of the opinion that tree roots have directly caused damage by lifting the foundation above it as it grows in girth, rather than indirectly causing damage by absorbing soil moisture and leading to greater soil shrinkage than might otherwise occur. 2. In his following "Comments" Mr Paheerathan states: "It can be visually observed that one of the tree root [sic] has damaged the building", again without explanation as to how this conclusion was reached. Despite his apparent conclusion that damage has been caused directly by pressure of a tree root against the footing, and not indirectly through soil drying, Mr Paheerathan refers to AS 2870 Residential slabs and footings, and suggests: For Class M sites, the minimum distance for mature trees is ¾ the height of the trees (see Reference ii). Therefore, the distance for such tree would be 9m, but the tree is located approximately 2.2m from the building, which is not acceptable. 1. Apart from his misunderstanding of the tree's height, Mr Paheerathan is referring to setback recommendations to minimise trees' effects on soil moisture around footings (indirect damage), despite his earlier observation that cracking is a result of direct damage (roots growing in girth against a footing). 2. Mr Paheerathan makes comments regarding the potential of limbs falling from the Tulip Tree and causing damage or injury. According to his documented qualifications and experience, these comments fall outside his area of expertise. 3. Mr Paheerathan's report, containing less than three pages of text and lacking sound reasoning for its conclusions, is inadequate for the seriousness of an application seeking orders for the removal of a large tree and a potentially large amount of compensation. It provides little or no assistance to the Court. AS 2870 and other documents regarding root damage 1. I note that the setback distances referred to in AS 2870 address indirect damage that may arise from tree roots affecting soil moisture, thereby affecting soil shrinkage. This standard and other documents addressing tree roots and structural damage, including some of those referenced in Mr Paheerathan's report, have been referred to by many other engineers in reports regarding structural damage. Often their application is at best misunderstood, at worst misapplied. Mr Paheerathan's use of this and other documents here provides an opportunity to address this issue. 2. Mr Paheerathan's report lists the following references: 1. Arborist Report dated 24 January 2017 [after the date of his own report], prepared by Rui Fang [actually prepared by Andrew Scales]; 2. Australian Standards: AS2870 Residential Slabs & Footings; 3. CSIRO: BTF18 – Foundation maintenance and footing performance; 4. Archicentre: Cracking in brickwork; 5. The Richmond Valley Council: Landscaping guidelines for urban village areas; 6. Goulburn Valley Water: Tree roots – a growing problem; 7. United States Geological Survey: Ficus macrophylla by Forest Starr, K Starr and L Loope; 8. The Board of Statewide: Trees & tree roots – Best practice manual. 1. Some of these documents accompany the copy of Mr Paheerathan's report filed with Mr Fang's application. It is unclear if Mr Paheerathan attached these documents to the report, or if Mr Fang has located and printed them. Mr Fang certainly stressed their importance, referring to them repeatedly during his submissions. This prompts me to comment on their relevance. 2. Firstly, I note that the section referred to in AS 2870 is an Appendix. It is not part of the main body of the standard, where the obligative auxiliary verb 'shall' is used. It is an informative appendix that uses the suggestive auxiliary verb 'should'. It is a guideline, rather than a requirement of the standard. The guidelines within this appendix were developed by the committee that promulgated the standard, without explicit reference to the data on which they were based. 3. Appendix B to AS 2870 at clause B2.3(c) suggests setbacks for trees from buildings using the following wording: Restrictions on trees and shrubs Planting of trees should be avoided near the foundation of a building or neighbouring building on reactive sites as they can cause damage due to drying of the clay at substantial distances. To reduce, but not eliminate, the possibility of damage, tree planting should be restricted to a distance from the house as follows: (i) 1½ x mature height for Class E sites. (ii) 1 x mature height for Class HI and Class H2 sites. (iii) ¾ x mature height for Class M sites. Where rows or groups of trees are involved, the distance from the building should be increased. Removal of trees from the site can also cause similar problems. Alternatively, the footing system may be designed for the effect of trees, for example as given in Appendix H. 1. While a homeowner may choose to refer to this when selecting what type of tree they might plant or where to plant it, to use this guide as justification for removing any tree within these relative distances of dwellings would be patently absurd. In a suburb like Wahroonga, where this matter arises, to remove all trees within a distance from dwellings of ¾ their height, or even more than their height when in groups or in problematic soils, would leave a scene of rooftops rather than the well treed landscape that seems to be valued by those living here. 2. Secondly, the mere reading of guidelines such as those in AS 2870 and other documents, including those in Mr Paheerathan's reference list, does not and cannot in any way satisfy the Court, as required at S 10(2), that the tree concerned has caused, is causing or is likely to cause damage to the applicant's property. A mountain of general references cannot replace the specific investigations required to demonstrate a nexus between roots of a specific tree and damage to a specific property. Most built structures have trees in their vicinity, but not all structural damage is attributable to trees. 3. Thirdly, Appendix B2.3 of AS 2870 includes distances to trees as only one of several issues requiring attention when trying to maintain stable soil moisture conditions in moderately–extremely reactive clay soils. Other issues requiring attention include: * Site drainage; * Avoiding overwatering gardens close to building footings; * Maintaining pipes and downpipes, repairing any leaks promptly; and * Designing footing systems to withstand the effects of trees. 1. The final point above can only be implemented at the time of building. The others are all site issues that can contribute to soil moisture changes and movement of footings. Yet Mr Paheerathan, like many other engineers who have prepared expert reports for matters before this Court (and others), has not turned his mind to these possibilities, even for the purpose of discounting them. Mr Marshall stated during his oral evidence that tree roots may have been one factor contributing to damage of Mr Fang's dwelling, but the likely explanation is a more complex interaction of multiple factors. I accept this to be the case. It can be difficult to identify and prove a cause of damage. However the Court's ability to be satisfied that tree roots have caused damage is often assisted by the elimination of other possible causes. 2. Similarly, publications such as the CSIRO document referenced in Mr Paheerathan's report and other informative documents promulgated by local governments and utility organisations, although developed with helpful intentions, do not demonstrate in a case before the Court that a tree of a certain species, or within a given distance of pipes or footings, is causing or is likely to cause damage. Tree dispute principle: demonstrating cause of structural damage 1. At this point, it may assist future parties applying to the Court pursuant to Part 2 of the Trees Act, where such applications include claims of structural damage to property, to provide some framework for inquiry that might assist an engaged expert to carry out the relevant investigations that would assist the Court to consider and determine the matter. This list of investigations is not exhaustive, but would assist in forming a sound chain of reasoning to demonstrate causation, and to eliminate other factors. Each site is unique, and each situation may require its own combination of investigations. 2. In cases where it is alleged that tree roots are causing structural damage to a building or other property, consideration of the following matters, via appropriate investigations, may provide useful information. 1. If roots are found near footings, especially in areas where footings have moved, it is necessary to identify the tree to which the roots belong. This may be possible by physically tracing a root's path, or may require microscopic or DNA analysis. An arborist can provide useful information regarding species and growth traits of any nearby trees. 2. It is important to collect information on the building's history and construction methods, as well as the history of the surrounding area, including any trees removed in recent years. 3. The age, depth and construction type of the footings, especially in areas where footing movement is identified, is relevant and should be investigated and reported. 4. Identifying the part of the building or structure that has moved, and in which way it has moved, is critical to determining causation. This might be done by undertaking a survey of the building or structure to identify and be able to demonstrate where and how it has moved and the nature of the movement (whether lateral, rotational or vertical). This is important as some movements of a building or structure may not, in the circumstances, be possible to attribute to a tree. 5. Knowledge of where the building is still actively moving, during which seasons, and in which directions, will further assist in identifying causation. Where time constraints allow, this might be done by repeating the level survey over time, as well as monitoring any cracking patterns. 6. Where footing movement is identified, it is important to know the ground conditions and soil moisture conditions in the vicinity of movement, as well as in other areas for comparative purposes. This can be done by undertaking routine soil investigation, such as boreholes for soil classification and soil moisture testing. If these conditions vary over time as a consequence of seasonal or other climatic conditions, more extensive testing to ascertain the impact of such variable conditions may be required. 7. Downpipes and other pipes near the building, especially those near any areas of relatively higher soil moisture levels, can contribute to movement of footings. Therefore, the condition of all downpipes and other pipes should be investigated and reported. 1. To the extent to which the Court must be satisfied of causation, the burden of proof lies with the applicant. Such investigations would ordinarily be expected of an engineer engaged by an applicant to demonstrate the cause of structural damage. It would be unusual for an engineer to be able to demonstrate cause by simply recording the locations of cracking and noting the proximity of trees and locations of tree roots. Reports that include consideration of the above matters, with photographs and plans that clearly show their findings, would greatly assist the Court. Damage to the dwelling 1. Mr Fagg has undertaken some necessary investigations at Mr Fang's property to identify the presence of tree roots near areas of damage. His excavation of the ground beneath the path leaves the Court in no doubt as to the cause of damage to this section of the concrete path and to the PVC pipe. Two large roots from the Tulip Tree have grown beneath the path. One of these roots has filled the space where the pipe once was, distorting it severely. This, using Mr Paheerathan's words, can be "visually observed", as can the path being lifted by the large root directly beneath it. However the direction of movement of the dwelling's footing cannot be visually observed and requires some measurement. The crack is obvious, but does not get wider toward the upper part of the wall, as often happens when pressure from below lifts and cracks a section of wall. 2. Mr Marshall's oral evidence was that, at the time of construction, an expansion joint should have been installed at the junction of the original part of the dwelling and its extension. He said its absence would contribute to the vertical crack at this junction. He suggested such cracking results from differential soil moisture levels and footing movement. He stated that the construction of the extension would have changed existing soil moisture conditions. He said the proximity of the bathroom window to the junction, and the inherent weakness created in a mortar wall by the presence of a window such as this, along with differential footing movement, could explain the stepwise cracking at the window. He acknowledged that the activity of tree roots may have contributed to any variations in soil moisture. I accept that there are other possible causes, apart from the presence of tree roots, for cracks in the dwelling wall. 3. The Trees Act does not require the tree to be the exclusive cause of damage to property, only a cause. Jurisdiction would be enlivened if the tree is one of several contributing factors. However, when other factors have not been eliminated, it is essential that the nexus between the tree and the damage is clearly demonstrated. The evidence adduced has not achieved this. 4. For the reasons outlined above, I cannot be satisfied as required by s 10(2)(a) of the Trees Act that the Tulip Tree has damaged Mr Fang's dwelling. I will therefore not be making any orders resulting from this element of the application. 5. Had I been satisfied that the Tulip Tree's roots caused damage to Mr Fang's dwelling, this would make no difference to the orders I will make below. If repairs to the dwelling are required, Mr Fagg recommends in his report only to repair "any of the minor cracking" to the building. For reasons outlined below at paragraphs 70–72, the respondents would not be responsible for any of the cost of such repairs. There would therefore be no orders for repairs or compensation, and orders being made for the tree on other grounds, outlined below, would not be altered. Concrete path 1. The two roots uncovered by Mr Fagg are relatively large (130 mm and 260 mm in diameter) and are directly beneath the lifted section of the concrete path. Photographs of this section of path, taken prior to its removal, and the descriptions from both Mr Fang and Ms Li, show the path was lifted vertically approximately 150 mm. This is more than minor cracking. There is no other likely cause of this damage, and I am satisfied that the tree has caused this damage. PVC pipe 1. One of the large uncovered roots grows against the PVC pipe and has distorted it. The pipe is so crushed that it appears it must be almost blocked and unable to perform its function, although what that function might be is not apparent and is not known by the applicant. There is no other likely cause for this damage and I am satisfied that the Tulip Tree's root has caused the damage. How to remedy, restrain or prevent the damage? 1. Because I have found that the Tulip Tree's roots have damaged Mr Fang's path and pipes, the Court's jurisdiction is enlivened in regard to this element of the application. 2. Section 12 of the Trees Act requires the Court to consider a range of discretionary matters. Of particular relevance here, in my mind, are: the timing of the damage; the timing of each party purchasing their properties and of each party becoming aware of the damage; actions taken by the parties; any protection afforded the tree under other Acts; and the tree's social and environmental benefits. Timing of the damage 1. The applicant purchased his property around the middle of 2013; the respondents purchased theirs approximately a year later. In his 'Summary of Communication' (Exhibit F) Mr Fang states that he first approached Ms Li around September 2014. Ms Li's own affidavit confirms this. 2. During the onsite hearing Mr Fang stated that he first noticed the damage soon after he purchased the property. He had not observed it prior to purchase, not because it wasn't there, but because he did not look. By his own description the pathway down that side of the dwelling was overgrown. There is no evidence that Mr Fang commissioned a pre-purchase property inspection, although this is common practice for those purchasing a property. If such a report was obtained, I am unaware of its contents. Mr Fang apparently became aware of the damaged path when he first went to that part of the property after purchasing it. There is no evidence that Mr Fang then communicated any concerns to the owner of the respondents' property. 3. Based on the adduced evidence and observations, I am of the view that the condition of the path, pipe and dwelling immediately prior to recent investigations was similar to their condition at the time Mr Fang purchased his property. It is likely that roots beneath the path were of a size similar to their present size. Firstly, then, Mr Fang has not suffered any significant material loss due to roots of the Tulip Tree. Secondly, it follows that during the time the respondents have owned their property, the condition of Mr Fang's property has not changed significantly as a result of the Tulip Tree's roots. Previous owners of their property have not been joined as a party to these proceedings, but because the damage existed at the time of Mr Fang's purchase, that would make no difference to the outcome here. For these reasons, regardless of the actions now required to repair the damage, the respondents will not have to pay for those repairs. Benefits of the tree 1. Mr Palmer says the tree has high value due to its size and age. Its healthy large canopy contributes to local amenity. It is within a Heritage Conservation Area of Ku-Ring-Gai Council. Its owners appreciate its shade and aesthetic benefits. The tree appears to be an important part of their garden landscape. It has been here for decades and would take many decades to replace with a tree of similar stature 2. In a letter to Mr Fang in 2015, Ku-Ring-Gai Council's Tree Management Officer explained that, even though the Tulip Tree was less than three metres from a dwelling, there were no such exemptions to Council's tree protection policies within this Heritage Conservation Area. Furthermore, it was most likely that the tree's owners would be required to submit a Development Application if they wished to remove it or carry out any more than minor maintenance pruning. In my mind, when considering the tree's benefits, this requirement puts additional weight on the Tulip Tree's value within the local landscape and the consideration that must be given to alternatives to tree removal. The tree was there first 1. Mr Doyle, referring to the Court's finding in Black v Johnson (No 2) [2007] NSWLEC 513, suggested the presence of roots would have been apparent at the time of the extension's construction on Mr Fang's property, or at least their presence ought to have been expected and considered, given the proximity of the large tree on neighbouring land. Certainly the tree is older than the single-storey extension. Mr Doyle argues that the path and pipe should have been installed in such a way as to allow root growth without resulting in damage. Mr Doyle seems to suggest that this is a reason not to provide any remedy. However Black v Johnson (No 2) makes it clear that the existence of a tree prior to construction of a building ought to be considered, not for the purpose of avoiding orders for remedy or prevention where they are required, but for apportioning the costs of any works required to remedy or prevent damage. I have already found that the respondents will not be responsible for the cost of any works on Mr Fang's property, so I do not need to consider apportionment. 2. In response to Mr Doyle's argument, Mr Fang argues that council records demonstrate all works were approved. Given my findings above, this has no bearing on the outcome or orders. Can the damage be remedied without removing the tree? 1. Neither party presented any substantial evidence regarding repair of Mr Fang's PVC pipe and concrete path near the tree. Mr Fang says he cannot replace the concrete path and PVC pipe with the tree roots left in place. Arborists for both parties pointed out that roots that have caused damage are within the Tulip Tree's structural root zone, where the roots that anchor and support the tree are likely to be found. I accept that cutting roots of this size, at this short distance from the tree's stem, would be likely to leave the tree unstable and prone to windthrow failure. This disqualifies the option of severing the roots and installing a root barrier to prevent further damage in this area. 2. It appears that the concrete path could be repaired with the roots remaining in place, but these roots would inevitably damage the path again before too long. As for the PVC pipe, it is not clear that there is sufficient room to replace the pipe beneath the path if the roots are left intact. 3. I asked Mr Doyle if the respondents proposed any solutions that might allow the tree to remain. He suggested that the path might be replaced with a gravel path, and that it may be possible to find another route for the pipe but this would take some further research. It is not the role of the Court to research alternative solutions. Just as the burden of proof for satisfying the Court of the cause of damage lies with the applicant, when a respondent's tree is found to be causing damage the burden for finding suitable alternatives to tree removal, that the Court might order, to some significant extent lies with the respondent. In the absence of any definite solution to ensuring the applicant has a concrete path and functioning pipes that will remain undamaged, I see no alternative to ordering removal of the Tulip Tree. 4. I note that the consideration of the near future in s 10(2) of the Trees Act is part of the jurisdictional test, but when it comes to making orders at s 9 there is no requirement to only prevent damage that might occur within 12 months. Mature tree roots may grow in girth relatively slowly. While it would be possible to replace the concrete path and pipe in their existing locations without any significant damage occurring within 12 months, it would be unreasonable to do so knowing that further damage would be inevitable within a few years. I see no alternative to ordering removal of the Tulip Tree. Tree removal may affect soil moisture and footings 1. Following removal of the tree, soil moisture patterns may change. This may affect footing movement. Mr Paheerathan acknowledges this on page 3 of his report; and Mr Marshall expressed the same opinion at the hearing. Any resulting damage to Mr Fang's dwelling would not be as a result of the tree. Rather it would be a consequence of changed soil conditions following the removal of the tree – removal that Mr Fang is requesting. Conclusion 1. Limbs are likely to fall from the Turpentine within the near future, but due to its structural form pruning is not a viable solution. The tree must be removed. 2. Limbs of the Tulip Tree have fallen onto Mr Fang's dwelling, but the tree has been pruned and appears unlikely to shed any more limbs in the near future. The respondents have stated they will compensate Mr Fang for the excess on an insurance claim. I will not order compensation for any damage resulting from limb failure. 3. Although I can't be satisfied that the Tulip Tree's roots have damaged Mr Fang's dwelling, I am satisfied that they have damaged his path and a pipe. In the absence of a solution that would allow the tree's retention without further damage to the path and pipe, orders for the tree's removal are to be made. 4. I find that the damage principally existed at the time Mr Fang purchased his property, so he has not suffered any material loss. The respondents have not caused any damage through either their actions or lack of any action. Therefore the respondents will not bear any of the costs of works to remedy or repair damage on Mr Fang's property. Because of this, no orders are required for works within Mr Fang's property. He may organise whatever works he wishes to repair his property and remove tree roots within his property, the only limitation being that roots not be interfered with prior to the Tulip Tree's removal, as any damage to structural roots may lead to windthrow failure. 5. The respondents are to remove the Tulip Tree, leaving no more than a two-metre stump. If a stump remains it is to be poisoned to prevent regrowth. Naturally if they wish to leave a lower stump, or grind out the stump and roots, they may do so. Orders 1. As a result of the foregoing findings and reasoning, the orders of the Court are as follows. 1. Mr Yong Xie is joined as the Second Respondent in these proceedings. 2. Within 60 days of the date of these orders, the respondents are to engage a suitably qualified (minimum AQF level 3) and experienced arborist, with appropriate insurances, to remove both the Turpentine and the Tulip Tree. 3. If tree stumps remain, they must be no taller than 2 metres and the arborist is to poison them as soon as practical after removing the trees. 4. The works are to be done in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry. 5. The respondents are to give the applicant 14 days' notice of these works. 6. The applicant is to allow any access to his property required for the works during reasonable hours of the day. 7. The applicant is not to interfere with any of the Tulip Tree's roots greater than 50 mm in diameter on his property prior to the tree's removal. ____________________________ 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: 19 September 2017