Land and Environment Court New South Wales Medium Neutral Citation: Hopkins v Luff [2018] NSWLEC 1069 Hearing dates: 12 February 2018 Date of orders: 12 February 2018 Decision date: 12 February 2018 Jurisdiction: Class 2 Before: Galwey AC Douglas AC Decision: The application is dismissed. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; adduced evidence does not demonstrate causation; respondent not informed of tree root growth at earliest opportunity; retaining wall inadequate; application dismissed. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Yang v Scerri [2007] NSWLEC 592 Category: Principal judgment Parties: Neil Hopkins (Applicant) Robert Luff (First Respondent) Rosemary Luff (Second Respondent) Representation: Neil Hopkins, litigant in person (Applicant) Robert Luff and Rosemary Luff, litigants in person (Respondents) File Number(s): 343754 of 2017 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. The Hopkins (Mr Hopkins is 'the applicant') bought their Gladesville dwelling in 1996. One half of a duplex development, it was newly built. The Luffs ('the respondents'), their neighbours to the southeast, reside at their dwelling where they have a garden with trees, including two mature pecan trees. One of the pecans ('the tree') is less than two metres from the boundary fence, and less than four metres from the Hopkins' dwelling. 2. The land slopes down to the northwest. When the Hopkins' dwelling was built the land was excavated to the boundary, resulting in a one-metre difference in ground level either side of the boundary. On the Hopkins' side of the boundary (the lower side) this required a retaining wall. This retaining wall, up to a metre or more tall, is of thin sandstone, without piers and with infrequent drainage points through it. Between the retaining wall and their dwelling is a narrow paved path. 3. In 2016 the Hopkins noticed cracks in their sandstone wall and uneven sections of their path. They raised their concerns with the Luffs. They raised their concerns again in October 2017, requesting removal of the tree. Within several days of this they had a 4-metre section of the wall repaired. 4. Mr Hopkins has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking the following orders: 1. Removal of the tree; 2. $900 compensation, being 50% of the cost of repairing the wall; 3. $2,900 compensation, being 50% of a quote for repairing the path. 1. The onsite hearing allowed us to view the situation. We bring our own arboricultural expertise and experience to this matter. Hopkins' submissions 1. The section of wall that needed repair was that part closest to the tree. Other parts of the wall, although slightly cracked, were not so damaged and did not require repair. Mr Hopkins argues that this demonstrates tree roots caused the damage. 2. When the contractor removed this section of the wall for repair, he found several roots, which he cut. These roots, Mr Hopkins contends, must be from the pecan, as there are now no other large trees nearby. 3. When he put a path and drainage alongside their dwelling, Mr Hopkins found tree roots along the dwelling wall and says they must have been from the pecan. He cut these roots at the time. 4. Roots have regrown into this area, beneath the path, and Mr Hopkins suggests they are lifting the path. He says these roots must be from the pecan tree, and that they are also likely to damage the service pipes in this area, being water, gas and stormwater. 5. Mr Hopkins informed the Luffs of the issues. He says that because the roots are from the Luffs' tree, the Luffs should pay compensation. 6. Mr Hopkins argues that only removal of the tree can prevent further damage. Luffs' submissions 1. The Luffs say the tree is valuable to their property, providing them with shade, amenity and privacy. They say they have always been responsible tree owners, pruning or removing trees when necessary, and allowing neighbours to prune them when needed. 2. The tree was there when the Hopkins dwelling was built, and when the land was excavated. The Luffs say that the presence of roots would therefore be expected, but the wall's design and construction does not reflect this. 3. The Luffs argue that 20 years of use from the retaining wall and path is reasonable, and that some maintenance might then be expected, whether that be due to roots or for any other reason. 4. The Luffs have been given no arboricultural or engineering reports to demonstrate the cause or justify the claims. They say this has deprived them of the opportunity to assess what action they should take. 5. The Luffs state that water flow across the land was an issue that their local council addressed some years ago with public works. They argue this indicates the presence of drainage issues at the site, which were inadequately dealt with during design and construction of the Hopkins' dwelling. Our findings The wall 1. The wall appears to be inadequate even for the single purpose of retaining one metre of soil. Thin sandstone flagging approximately 50 mm thick is joined by mortar. There is no sign of any pillars. We accept the Luffs' proposition that the presence of the tree was apparent to the designers of the Hopkins' dwelling. It would be reasonable to expect roots in this area, and that the retaining wall would be designed with this in mind. A few roots can be seen in a photograph taken by the contractor repairing the wall last October, but there is insufficient evidence to satisfy us that roots caused this damage. However, even if we were so satisfied, and we found that the tree's roots had damaged the wall, we are of the view that the wall is not constructed properly for its purpose. Having considered this, as required by s 12 of the Trees Act, we would not make any orders for this element of the application. Furthermore, we accept the Luffs' argument that they were not given opportunity to assess the cause of damage, to obtain their own quotes, or to comment on the quality of works and whether they were adequate for the ongoing situation. It would now be unreasonable to expect them to pay for those works. Therefore this element of the application is dismissed. The path 1. The Hopkins' path is lifted in places by a couple of centimetres. Relatively small roots can be seen near one such area. They may be from the pecan, but there are other possible causes for the path's movement. By Mr Hopkins' own admission the area was boggy, requiring him to pave the path between their dwelling and the boundary, where earlier they had only gravel. Mr Hopkins' photographs show wet clay prior to the laying of the path. Any reactive clay here may swell when wet and cause lifting. These conditions may also have encouraged root growth in the area. 2. When Mr Hopkins paved the pathway alongside their dwelling in 2011, he photographed and cut roots he found in this area, roots he alleges were from the Luffs' pecan tree. Despite this, he constructed the path without any root barrier along its edge. Notably, he did not at that time inform the Luffs that he found pecan roots, nor show them the photographs which he has shown us today. He declared during the hearing that he did not discuss the tree's roots with the Luffs until June 2016. 3. We are of the view that there were two opportunities for a root barrier to be installed along the edge of the path, one at the time of construction, and another when Mr Hopkins installed the extra section of path, at which stage he observed roots growing here. Mr Hopkins is asking us to accept that roots are the cause of lifting, and that the roots belong to the pecan tree, despite presenting very little evidence to demonstrate this. However, for the reasons described above, even if we accept that the tree's roots are a cause of the damage, we are of the view that root growth, and any resultant damage, could have been reasonably prevented. Consideration of this, as required by s 12 of the Trees Act, leads us to dismiss this element of the application also. The tree 1. This healthy pecan tree appears structurally sound without any major defects. It is mature and so is now relatively stable in size, with only slow growth. Roots would typically be expected to extend beyond the boundary, which is less than two metres from the stem. 2. The tree contributes to amenity within the Luff's property as well as the broader landscape; it provides shade and cooling. It may even reduce the amount of hydrostatic pressure on the retaining wall by absorbing soil moisture. Though it might be feasible, the Hopkins have not shown, to the level of satisfaction required at s 10 (2)(a) of the Trees Act, that the tree is likely to cause damage in the near future, a period we regard as 12 months as per Yang v Scerri [2007] NSWLEC 592. We therefore see no need to order the tree's removal. Orders 1. As a result of the foregoing the orders of the court are: 1. The application is dismissed. ____________________________ D Galwey Acting Commissioner of the Court ____________________________ J Douglas 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: 16 February 2018