Smith v Ferrero [2022] NSWLEC 1352 (12 July 2022)

Last Updated: 12 July 2022

Land and Environment Court New South Wales

Case Name:	Smith v Ferrero
Medium Neutral Citation:	[2022] NSWLEC 1352
Hearing Date(s):	23 March 2022
Date of Orders:	12 July 2022
Decision Date:	12 July 2022
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	See orders at [41].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage to property – risk of injury – orders for removal of one tree – application for compensation refused – application to remove bamboo refused
Legislation Cited:	Dividing Fences Act 1991, ss 3, 13A Trees (Disputes Between Neighbours) Act 2006, Pt 2 ss 6, 7, 9, 10, 12
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152
Texts Cited:	Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’, 2016
Category:	Principal judgment
Parties:	Warwick Smith (Applicant) Anne Ferrero (Respondent)
Representation:	Counsel: W Smith (Self-represented) (Applicant) A Ferrero (Self-represented) (Respondent)
File Number(s):	2021/329825
Publication Restriction:	No

JUDGMENT

Background to the application

1. COMMISSIONER: On the high side of Pittwater Road in Gladesville, a tall Sydney Blue Gum (Eucalyptus saligna) grows in the front setback of the property belonging to Anne Ferrero (the Respondent), close to the common boundary shared with her neighbour, Warwick Smith (the Applicant). Further along the boundary Ms Ferrero has bamboo growing in a narrow garden bed. Mr Smith alleges that:
   • The gum tree has pushed a timber paling fence out of alignment;
   • The gum tree’s roots have displaced the low brick wall next to the paling fence;
   • The gum tree’s roots damaged a water pipe beneath his driveway;
   • The gum tree’s roots have damaged his driveway;
   • Cracks appearing in parts of his dwelling might be caused by the tree;
   • The bamboo is spreading across the boundary, requiring work to prevent its growth;
   • The bamboo has pushed the timber paling fence out of alignment; and
   • The bamboo drops copious amounts of debris onto his property.
2. Mr Smith has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for:
   • Ms Ferrero to remove the gum tree at her expense;
   • Ms Ferrero to arrange and pay for repairs to the timber paling fence;
   • Ms Ferrero to arrange and pay for repairs to the low brick wall;
   • Ms Ferrero to pay for repairs to the driveway; and
   • Ms Ferrero to install a root barrier along the boundary to prevent further spread of the bamboo in his property.
3. The hearing took place onsite. Mr Smith and Ms Ferrero were each self-represented. Mr Smith relied upon, among other material, a report by C & G Building Consultants dated 23 May 2020. Ms Ferrero relied upon a report by consulting structural engineer Milton Webster, dated 2 February 2022, and a survey plan prepared by Brian Dewing of Burton & Field Pty Ltd dated 24 May 2011. Having made observations of the Sydney Blue Gum and the bamboo during the onsite hearing, I also rely on my own arboricultural expertise.

Framework for this decision

4. The Applicant can apply for orders, at s 7 of the Trees Act.

7 Application to Court by affected land owner

An owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

5. The Court has the power to make orders, at s 9(1) of the Trees Act.

9 Jurisdiction to make orders

(1) The Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned.

(2) ...

6. Orders can only be made in certain circumstances, at s 10 of the Trees Act.

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(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.

7. Before making orders, the Court must consider relevant matters at s 12 of the Trees Act.

12 Matters to be considered by Court

Before determining an application made under this Part, the Court is to consider the following matters:

(a) the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises,

(b) whether interference with the tree would, in the absence of section 6 (3), require any consent or other authorisation under the Environmental Planning and Assessment Act 1979 or the Heritage Act 1977 and, if so, whether any such consent or authorisation has been obtained,

(b1) whether interference with the trees would, in the absence of section 25 (t) (Legislative exclusions) of the Native Vegetation Act 2003, require approval under that Act,

(b2) the impact any pruning (including the maintenance of the tree at a certain height, width or shape) would have on the tree,

(b3) any contribution of the tree to privacy, landscaping, garden design, heritage values or protection from the sun, wind, noise, smells or smoke or the amenity of the land on which it is situated,

(c) whether the tree has any historical, cultural, social or scientific value,

(d) any contribution of the tree to the local ecosystem and biodiversity,

(e) any contribution of the tree to the natural landscape and scenic value of the land on which it is situated or the locality concerned,

(f) the intrinsic value of the tree to public amenity,

(g) any impact of the tree on soil stability, the water table or other natural features of the land or locality concerned,

(h) if the applicant alleges that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property:

(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage,

(i) if the applicant alleges that the tree concerned is likely to cause injury to any person:

(i) anything, other than the tree, that has contributed, or is contributing, to any such likelihood, including any act or omission by the applicant and the impact of any trees owned by the applicant, and

(ii) any steps taken by the applicant or the owner of the land on which the tree is situated to prevent any such injury,

(j) such other matters as the Court considers relevant in the circumstances of the case.

The Applicant made a reasonable effort

8. Mr Smith, or his agent, wrote to Ms Ferrero in 2020 and 2021. This was the first notification for Ms Ferrero regarding some of the issues pressed in these proceedings. While Ms Ferrero claimed a letter had no name or signature, it could be reasonably assumed that the letter was written on behalf of Mr Smith. Mr Smith is elderly, with limited mobility. I am satisfied that the Applicant made a reasonable effort.

The gum tree has caused damage to the Applicants’ property

Pipe damage

9. The Sydney Blue Gum (the tree) grows on Ms Ferrero’s land, its stem against the fence that runs along the side boundary between her property and Mr Smith’s property. This large healthy tree has grown here for some time. A large root from the tree grew in the soil beneath Mr Smith’s driveway. In 2021, a water pipe beneath the driveway began leaking. The driveway surface was removed and the pipe was repaired. Photographs were taken showing the pipe with a large tree root against it. The root is close to the tree. It is a eucalypt root. No other large trees are in the immediate vicinity. Mr Webster wrote at pars 5.1 and 5.2 of his report:

“Based on the photographs at Pages 19, 24, 29, 52 and 53 in the Applicant’s submission, I do not doubt that the tree root shown could have caused the pipe to rupture. I am not qualified to conclusively identify the tree root as that of the Tree T1.”

10. I am satisfied, on the balance of probabilities, that the root is from the Sydney Blue Gum. Photographs clearly show the large root, as it grew in girth, pressed against the water pipe. I am satisfied that the tree damaged Mr Smith’s pipe, causing it to leak and enlivening the Court’s jurisdiction at s (10)(2)(a) of the Trees Act.

Driveway damage

11. Mr Smith’s driveway was also damaged. It appears that the driveway’s condition was caused by several contributing factors: age, wear and heavy vehicles. Nevertheless, damage to the driveway was more severe above the tree root.
12. Mr Webster described the driveway’s construction at par 5.5 of his report, finding it was constructed in at least two separate stages prior to the surface of the entire driveway being stencilled. Mr Webster noted features of damage that were not consistent with root damage, but found at par 5.8:

“Whilst it is likely the tree roots from Tree T1 have affected the driveway to some extent it is my view not likely to affect the vast majority of the driveway...”

13. I find Mr Webster’s report to be a reliable assessment of the damage and its causes. His evidence comes across as objective and considered. I am satisfied that the tree was a cause, even if there were others, of damage to Mr Smith’s driveway.

Fence damage

14. Near ground level, the tree’s stem pushes against the fence, which it has displaced. There is no other apparent reason for this displacement. Mr Webster wrote at par 4.7 of his report:

“The tree by virtue of its growth has displaced the fence post which is immediately adjacent to the tree and with the tree being in contact with the base and top of the fence, has displaced the fence towards the Applicant’s side. The affected length of fence is that distance on either side of the tree through to the next adjacent fence post i.e., 2m to the West and 2.8m to the East. Refer Photograph 1.”

15. I am satisfied that the tree has damaged the fence.

Wall damage

16. Near the fence, and parallel to it on Mr Smith’s side of the fence, is a low brick wall. This too has been displaced by growth of the tree’s root collar. Mr Webster wrote at pars 4.10 and 4.11:

“The dwarf wall is cracked at the tree being laterally displaced by at least 22mm between the two adjacent ends of the wall and the walls also being laterally displaced to some extent. The crack and displacement in the dwarf wall being as a result of the tree growth with expanding girth [sic].”

House damage

17. Mr Smith pointed out some small cracks in a wall that is part of his dwelling. He also claimed that debris from the tree blocked gutters, causing water damage inside his dwelling. The report of C & G Building Consultants attempted to find a nexus between the tree and damage to the dwelling, but I find that Mr Webster’s report, which showed more objective reasoning, addressed each issue and could find no such nexus. I cannot be satisfied that the tree has damaged Mr Smith’s dwelling. If any damage resulted from debris blocking gutters, this might have been prevented by reasonable maintenance: see Barker v Kyriakides [2007] NSWLEC 292 (‘Barker’) at [20].

The Court can make orders

18. The tree has damaged several elements of property, some of which are entirely or partly on Mr Smith’s land. The Court can make orders to remedy, restrain or prevent the damage after considering matters at s 12 of the Trees Act. Relevant s 12 matters are discussed below.

Consideration of relevant matters

Location of the tree and assets

19. The tree is close to the common boundary shared by the parties; its crown spreads partly across Mr Smith’s property. While I find Mr Webster’s report reliable, he appears to err in interpreting the 2011 survey plan. The plan shows a solid line extending from the front boundary to the rear boundary. For a short section near both the front and rear boundaries, a dashed line is close to and parallel to the solid line, but slightly to its north, or towards Ms Ferrero’s property. Mr Webster wrote at par 4.5:

“Based on the Survey drawing by Burton & Field Pt Ltd dated 24 May 2011 at Appendix A Page 21 of this report, the boundary fence is shown to be located on the Applicant’s side of the boundary by 150mm at the front of the properties and 250mm at the rear of the properties. Interpolating to where the tree is approximately located, the fence is approximately 200mm on the Applicant’s property. I am advised by the respondent that the survey showing the fence is the fence which currently exists.”

20. Mr Webster continued at par 4.6:

“The tree at ground level is located mainly within the Respondent’s property adjacent to the boundary fence but encroaching over the boundary by an estimated very approximate 200mm.”

21. On my reading of the survey plan, it is the dashed line that shows the paling fence, which is north of the solid line representing the common boundary. Therefore, the fence is shown to be within the Respondent’s property, not the Applicant’s. Based on the survey plan, it is the dwarf wall that is approximately on the common boundary. The fence has been constructed to its north, probably for reasons of practicality, it being easier to construct the fence in the ground than atop the dwarf wall. At s 3 of the Dividing Fences Act 1991 (the Fences Act), a dividing fence is defined as “...a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary.” The paling fence in these proceedings, which is close to the common boundary, separates the Applicant’s land from the Respondent’s land and is therefore a dividing fence. The dwarf wall, although on the boundary, is not required to support the fence so is not part of the dividing fence (s 3 of the Fences Act). The tree has damaged the boundary dwarf wall and the dividing paling fence.

Council consent

22. Consent would be required from Ryde City Council (Council) to prune or remove the tree. In 2014, Council refused consent to remove the tree following an application from a previous owner of the property. In January 2020, Ms Ferrero applied to Council for consent to remove or prune the tree. Council granted consent to prune the tree, but neither granted nor refused consent to remove it.

Impact of pruning

23. Further damage to the water pipe can be avoided by redirecting the pipe, but to prevent further damage to the driveway, the large root that damaged the pipe would need to be cut between the driveway and the tree. Cutting such a large root only a metre or so from the stem and within the tree’s structural root zone, as would be the case here, is likely to reduce the tree’s anchorage in the soil and increase its likelihood of windthrow failure. The resulting risk of severe damage or injury would be unacceptable for both the Applicant and the Respondent. Retaining the tree would require alternative means to prevent further damage. Alternative driveway construction methods are likely to be significantly more expensive than repairing in a like-for-like manner.

Benefits of the tree

24. The tree is mature, some 20 metres tall, with a broad dense crown. It contributes to the amenity and landscape value of both the Applicant’s and the Respondent’s properties. It provides shading and cooling for both properties. More broadly, it contributes to public amenity and provides ecosystem services such as carbon sequestration, air filtering, rainfall run-off reduction and so on, contributing to the overall benefits of the area’s urban forest.

No reasonable alternative to removing the tree

25. The tree’s removal would result in a significant loss of amenity and other benefits, and should be avoided if reasonably possible. However, in this case, the changes required to the driveway and fence to allow for the tree’s retention would not be reasonable, when balanced against the tree’s benefits. No matter how well-meaning was the person who planted the tree, it was planted, unfortunately so, too close to the fence and driveway. I find the tree must be removed to prevent further damage to property.

Actions of the parties

26. Mr Smith, through actions taken or omitted, has not contributed to the likelihood of the tree causing past or future damage to his property. The tree has grown on Ms Ferrero’s land; it is her tree. I see no reason for Mr Smith to contribute to the cost of the tree’s removal. As is usual in tree matters, the Respondent will bear the cost of removing the tree.
27. Ms Ferrero did not plant the tree. Damage caused by the tree to Mr Smith’s property, if not for the Trees Act, would fall under the tort of nuisance: see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152 at [54]. Ms Ferrero did not cause the nuisance.
28. When Mr Smith first wrote to Ms Ferrero about the tree, his principal concerns related to the risk of branches falling. When he mentioned the possibility of roots damaging pipes or the driveway, he provided no evidence that would demonstrate to Ms Ferrero, other than his own opinion, that damage had been caused, or was likely to be caused, by the tree. Prior to the pipe damage and the driveway section being lifted to expose the root, Ms Ferrero had no knowledge of the root’s presence beneath the driveway. Ms Ferrero did not knowingly adopt or continue a nuisance.
29. Without being presented with persuasive evidence, Ms Ferrero had no reason to remove the tree or to take other steps to prevent damage. For this reason, I find that Ms Ferrero should not contribute to the cost of repairing the driveway damage. Further supporting this finding is the condition of the driveway further from the tree, where cracking and displacement is clearly due to factors other than the tree. Mr Webster found that sections of the driveway were not reinforced and damage there was not caused by the tree.
30. Given the tree’s proximity to the dividing fence, the high likelihood that it would cause damage was foreseeable. Furthermore, once displacement of the fence commenced, the damage was visible from within Ms Ferrero’s property. Ms Ferrero could reasonably have taken steps to prevent further damage to the fence. I note that in 2020, on her application for Council consent, she ticked both ‘prune’ and ‘remove’, writing ‘or’ in between the two. The application to remove the tree was not addressed in Council’s determination of 28 February 2020 (p 22, Annexure B, Exhibit 1), but it might be assumed that they refused consent to remove the tree by only granting consent for pruning works. Nothing shows that Ms Ferrero was encouraged to provide further evidence regarding damage should she wish to press her application to remove the tree. I find that, to some extent, Ms Ferrero did take reasonable action to prevent damage. Council’s acknowledgement of receipt of the application, dated 3 February 2020, stated that the application was forwarded to Council’s Urban Forest Team and the assessment would be based on “...a visual inspection by a City of Ryde qualified Officer.” Ms Ferrero might assume that the tree and its surrounding environment, including the fence, were inspected by a qualified arborist who determined that tree removal was not required. Nevertheless, Ms Ferrero might have engaged a contractor to carry out works to the fence to create some clearance between the fence and the tree, thereby preventing further damage. Ms Ferrero will bear the cost of realigning the section of fence affected by the tree.
31. The dwarf wall is not visible from within Ms Ferrero’s property, concealed as it is by the paling fence. Ms Ferrero had no way of knowing, nor preventing, damage to the dwarf wall. The dwarf wall is old; its condition has deteriorated over many years, mostly before Ms Ferrero came to her property approximately five years ago. The boundary wall is shared property. Because the wall is not a dividing fence (see above at [21]), the Court cannot make orders for repairing or replacing the entirety of the wall; rather, orders would be limited to the damaged section. There seems little point in repairing only this section, so the matter of repairs to the boundary dwarf wall will be left to the parties to resolve.

The bamboo has not caused damage

32. Further back in Ms Ferrero’s property, in a narrow garden bed on her side of the dividing fence, bamboo extends for approximately 26 metres and provides screening between the properties. Mr Smith claims the bamboo has pushed the fence over toward his property, that it spreads into his property, and drops debris onto his property. During the hearing, I inspected the fence but observed no damage I could attribute to the bamboo. Mr Webster inspected the fence closely and found a section approximately 8 metres long was out of alignment, but could not determine if bamboo had contributed to this. He found one post in this section was loose in the ground, perhaps as a result of decay below ground. He thought the issue could be remedied by replacing the loose post and realigning three other posts. I find his conclusions match my own and his recommendations are reasonable. I find the bamboo has not caused damage to the fence.
33. No significant spread of bamboo onto Mr Smith’s property was observed. If he finds the occasional culm on his side of the fence, this could be easily removed. I would not consider that as damage within the context of the Trees Act, so could not make any orders on that basis.
34. Mr Smith might find debris from the bamboo annoying, but he did not demonstrate to the Court that debris has caused damage. Furthermore, it is likely that any damage that might result from debris could be avoided by carrying out reasonable maintenance, as per the principle in Barker at [20]. As a result, the bamboo gives the Court no reason to make orders.
35. Having found no damage caused by the bamboo, I can make no orders to install a root barrier, although I note that Ms Ferrero stated during the hearing that she intends to install a root barrier to prevent any future spread of bamboo onto Mr Smith’s property.
36. Although the bamboo gives me no reason to make orders, I found earlier that the Sydney Blue Gum has damaged part of the fence. According to s 13A of the Dividing Fences Act 1991, this enables the Court to make orders to repair other parts of the fence, an outcome that both parties want. Therefore, I will make orders to repair part of the fence further along the boundary as recommended by Mr Webster.

Conclusion

37. With no reasonable alternative to prevent further damage by the Sydney Blue Gum, orders will be made for its removal at Ms Ferrero’s expense. Its stump must also be ground out. Council consent is not required for Ms Ferrero to carry out these works (s 6(3) of the Trees Act).
38. Ms Ferrero will bear the expense of realigning the dividing fence where it has been pushed by the tree. Should the parties wish to replace or repair the dwarf boundary wall, that is a matter for them.
39. Ms Ferrero could not have reasonably prevented root damage to Mr Smith’s driveway. She had no knowledge of the fact prior to being informed of the root damage to the water pipe beneath the driveway. Mr Smith may repair the driveway as he sees fit; no order is made for compensation for driveway damage.
40. Factors other than Ms Ferrero’s bamboo have likely caused the need to repair a section of the dividing fence toward the rear of these properties. Mr Smith and Ms Ferrero both want the fence repaired. Orders will be made for them to share equally the cost of that element of the dividing fence works.

Orders

41. As a result of the foregoing, the Court orders that:

(1) The application is granted, to the extent of the orders below.

(2) The Respondent is to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the Sydney Blue Gum near her southern boundary and to grind it stump to at least 200 mm below ground level within 30 days of the date of these orders. Tree removal work is to be done in accordance with the Safe Work Australia (2016) ‘Guide to managing risks of tree trimming and removal work’.

(3) Within 60 days of the date of these orders, the Respondent is to engage and pay for a suitably experienced and insured fencing contractor to realign all parts of the dividing fence within 6 metres of the Sydney Blue Gum’s location.

(4) The Respondent is to give the Applicant 5 days’ notice of the works in orders (2) and (3).

(5) The Applicant is to allow all access necessary for the works in orders (2) and (3) during reasonable hours of the day.

(6) Within 30 days of the date of these orders, the Applicant and the Respondent are each to obtain two quotes for realigning the leaning section of the dividing fence toward the rear of their properties, including the remediation or replacement of up to four fence posts as required.

(7) Within 60 days of the date of these orders, the Applicant and the Respondent are to jointly engage and equally pay for the contractor with the cheapest quote from order (6), or another if they agree on one, to carry out the quoted works arising from order (6).

(8) The Applicant and the Respondent are to allow all access necessary for the completion of the fencing works in order (6) during reasonable hours of the day.

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D Galwey

Acting Commissioner of the Court

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