Newman v Eizenberg [2009] NSWLEC 1203

Land and Environment Court of New South Wales

CITATION : Newman v Eizenberg [2009] NSWLEC 1203

APPLICANT Newman, Blair & Anor PARTIES : RESPONDENT Eizenberg, Jutta

FILE NUMBER(S) : 20062 of 2009

CORAM: Thyer AC

KEY ISSUES: TREES (NEIGHBOURS) :- damage; neglect of property maintenance; compensation

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 27 May 2009

EX TEMPORE JUDGMENT DATE : 27 May 2009

APPLICANT Blair Newman (Litigant in person)

LEGAL REPRESENTATIVES: RESPONDENT Ms M-L Taylor (Solicitor) SOLICITOR Bartier Perry

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Thyer AC

27 May 2009

20062 of 2009

Blair and Kay Newman v Jutta Eizenberg

JUDGMENT 1 ACTING COMMISSIONER: Some components of consent orders were proposed by the parties at the on-site hearing. However, due to the conflicting evidence of expert reports, apparent lack of investigation carried out for those reports, conflicting evidence in relation to notice of damage, apparent neglect of normal property maintenance responsibilities by both parties for over 25 years, and other matters, I reserved my judgement at that time.

2 Mr and Mrs Newman (the applicant) are the owners of 31 Green Point Road, Oyster Bay. They bought their property in 1981, from Mr Newman's father who had owned it since 1972. They make an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify and prevent property damage, to prevent injury to people, and seeking compensation for various costs.

3 Their written application lists two trees. At the hearing, a third tree was added with the respondent's agreement. The three trees are a Southern Mahogany, a Blackbutt and a Bunya Pine (the trees). They seek orders for removal of the trees, which are growing on the adjoining property to the south.

4 The Newmans' submission includes the following expert reports: 1. Structural Engineering report prepared by Mr Mckerron, dated 30 March 2009. 2. Engineering report prepared by Mr Bonner, dated 28 March 2009. Mr Bonner attended the hearing. 3. Environmental engineering report prepared by Mr Pool, dated 31 March 2009. 4. Statement regarding the Southern Mahogany prepared by Mr Lawson who is a level 2 arborist, dated 4 December 2008.

5 Mrs Eizenberg (the respondent) is the owner of 33 Green Point Road, Oyster Bay (the property), the adjoining property to the south. She moved into the property in 1971. She was assisted at the hearing by her son Ben Eizenberg, and represented by solicitor Mrs Taylor.

6 Mrs Eizenberg's submission includes the following expert reports: 1. Arboricultural comment regarding the trees and a River sheoak prepared by Mr Castor who is an AQF level 5 arborist, dated 10 April 2009. 2. Engineer's report prepared by Mr El-Zahoul, dated 6 April 2009. Mr El-Zahoul attended the hearing.

7 Mr Hoff, Tree Management Officer for Sutherland Shire Council attended the hearing.

8 On the basis that the application has proceeded beyond the directions hearing to this on-site hearing, I am satisfied that: o The applicant is owner of the land in accordance with s 3(1) and s 7 of the Act; o The applicant has made reasonable effort to reach agreement with the respondent in accordance with s 10(1)(a) of the Act; o The applicant has given notice to the parties in accordance with s 8 of the Act; and o The property is "certain land" in accordance with s 4(1), and not land to which the Act does not apply (s 4(2)).

9 I have observed the dividing fence which both parties agree is approximately on the common boundary, and the location of the trees. I find that the Southern Mahogany and the Bunya Pine are wholly on Mrs Eizenberg's property, and the Blackbutt is principally on her property, thus satisfying s 4(3) and s 7 of the Act. As a consequence there is an application that the Court may determine.

10 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property on the land? Is the tree now causing damage to the applicant's property on the land? Is the tree likely in the near future to cause damage to the applicant's property on the land? Is the tree likely to cause injury to any person?

11 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? Further, before determining an application, the Court is to consider the matters in s 12 of the Act. The trees 12 Having observed the trees at the hearing, I find that each is a "tree" within the meaning of that term in s 3(1) of the Act, and appear to be as described in Mr Castor's report.

13 The Bunya Pine (Araucaria bidwillii) is about 13 m tall. It overhangs the roof of the Newmans' home and the concrete pathway between their home and the common boundary. The Newmans say that this tree produces very large, heavy cones that fall from the tree during February each year. The Newmans also say that the path is the only access to their teenage son's living quarters and to the water, pool and boatshed on their property. On that basis, and with my own knowledge of Bunya Pines, I find that the tree is likely to cause injury, thus satisfying the test in s 10(2)(b) of the Act, and I am able to make orders regarding it.

14 The Blackbutt (Eucalyptus pilularis) is about 28 m tall. It overhangs the roof of the Newmans' home and the concrete pathway between their home and the common boundary. I observed, and based on this point of agreement in the expert reports, this tree has lifted and broken the concrete pathway. Also, the Newmans say that dead branches falling from this tree have broken a dozen tiles on their roof since 1983. On that basis, I find that the tree has caused, is causing, and is likely in the near future to cause damage to the Newmans' property on their land, thus meeting all three tests in s 10(2)(a) of the Act, and I am able to make orders regarding it.

15 The Southern Mahogany (Bangalay, Eucalyptus botryoides) is about 25 m tall. It has a large wound up the western side of the trunk from near ground level, damage and evidence of borer attack at several locations higher on the trunk, large dead wood in the crown, and overgrowth of the lower half by ivy. It overhangs the Newmans' property and the entrance path to Mrs Eizenberg's home.

16 Mr Castor's report concludes that he would support removal of the Southern Mahogany because of its basal defects.

17 The Newmans say that dead branches have fallen onto their property. I find that on the basis of its location, the deadwood in its crown, and the condition of its trunk, it is likely to have some failure that causes damage to the Newman's property in the near future, and injury to a person in the longer term, thus satisfying the third test in s 10(2)(a) and the test in s 10(2)(b)of the Act, and I am able to make orders regarding it.

18 As a consequence the Court has power to make such orders as it thinks fit regarding each of the trees, in accordance with s 9 of the Act. Compensation 19 On their supplementary form for compensation, the Newmans list tree removal, damage to the pathway, damage to the dividing fence, and various damage to their house both external and internal. Some of those damages were quantified.

20 They have provided two quotations for removal of Eucalyptus trees on Mrs Eizenberg's property, neither of which clearly specifies which tree(s) it refers to.

21 They have also provided two separate quotations from the one contractor for repair of the pathway and for various building repairs. The quotations overlap to some extent, do not specify what length of the pathway is to be repaired, and I find them confusing in relation to treatment of the west (southern) wall.

22 The Newmans did not press their claim for compensation in relation to the dividing fence. s 12 Considerations 23 Addressing the matters in s 12 which the Court is required to consider: (a) The trees are located very close to the common boundary, and the Blackbutt appears to have a small proportion of its trunk over the boundary. Both the Bunya Pine and the Blackbutt have substantial overhang the roof of the Newmans' home, and the Southern Mahogany overhangs their property and the roof of another building on their property. (b) 1. The Bunya Pine is an exempt species under the Sutherland Shire Council Tree & Bushland Vegetation Preservation Order. I would propose to order removal of this tree, to prevent injury. 2. Consent was granted to Mrs Eizenberg by Sutherland Shire Council for removal of the Blackbutt, valid from 18 April 2008 to 18 April 2009, on the basis of "ongoing damage to the concrete and foundations of the adjoining house." However, on reading Mrs Eizenberg's letter dated 14 May 2008 to Mitchell Reece & Associates (solicitors for the Newmans) it seems that the application was made by the Newmans. 3. Mrs Eizenberg's letter dated 14 May 2008 referred to above states that she was at that time awaiting determination from Council regarding the Southern Mahogany. From the evidence it seems that consent has not been given for removal of the Southern Mahogany. (c) No evidence has been provided that the trees have any historical, cultural, social or scientific value. Mrs Eizenberg moved into her property in 1971. She did not plant the Blackbutt or the Southern Mahogany. (d) The Blackbutt and Southern Mahogany may be remnant native trees. I consider that these two trees make a significant contribution, and the Bunya Pine makes a lesser contribution, to the local ecosystem and biodiversity, through provision of food, shelter and nesting sites, and being substantial components of the bushland fabric of the local area. In this regard, I give little weight to the environmental report by Mr Pool which states "we would see no benefit to the environment by these two trees remaining". He refers to the Blackbutt and Southern Mahogany, and in his two paragraph report gives no information on the natural environmental features or benefits of the trees, restricting his comments to possible property damage. (e) The trees make a significant contribution to the natural landscape and scenic value of the property and the locality, being large, tall and visible. Their location on this waterfront property is effective in supporting the general bushland appearance of the local headland, from locations and properties on Green Point Road, from the water and from locations across the water. (f) The trees make some contribution to public amenity through oxygen production, carbon sequestration, cooling summer shade, reduction of stormwater runoff, and deflection and dispersal of strong winds. (g) Roots of the trees are likely to reduce soil erosion nearby, directly by binding soil and rocks, and indirectly by absorption of soil moisture. (h) Damage

(i) Contribution other than the trees, Act or omission by applicant: 1. Guttering and internal water damage. With regard to water damage inside the Newmans' home, the Blackbutt is likely to be the greatest cause of leaves and twigs in the roof gutters, and has been the cause of tiles broken by falling dead branches. However, the Bunya Pine and the nearby large River Sheoak on Mrs Eizenberg's property are likely to make a substantial contribution to debris in the guttering. The Newmans say they have not installed gutter guard but they clear the gutters every three months. Mr Castor notes in his report that there are only two downpipes for the whole of the Newmans' roof and that the one on the southern side is near the trees. He considers that the southern downpipe would rarely flow due to leaf and twig build-up in the gutters, and that overflow of the gutters is likely during heavy rain events, possibly causing overflow into the eaves and wall cavity. Mr Mckerron's report does not address internal water damage, while Mr Bonner's report notes internal mildew stains but does not explain their cause. The Newman's claim for compensation includes proposed carpet replacement, gyprock and paint, roof insulation and roof gutters. On the evidence provided, and the balance of probability, I find that the internal water damage is likely to be caused by failure of the roof guttering and downpipes, at least in part because of blockage by tree debris. 2. The Court decided in Barker v Kyriakides [2007] NSWLEC 292 , that it was not appropriate to order the removal of the tree or significant interference with the tree on the basis of its dropping of leaves, twigs and the like on the applicant's property. Similarly, I would not order removal of the Blackbutt on the basis of its debris. However, I would propose to order pruning of deadwood to prevent tile damage, and in this case, pruning of overhanging branches as Mrs Eizenberg is agreeable to pruning of smaller branches back to the boundary, and Mr Castor's report supports "reduction pruning" 'of the canopy sections directly overhanging No. 31'. The River Sheoak is not one of the trees in this application, and though I asked their intention regarding it at the hearing, the Newmans did not seek to have it added to the application. 3. In relation to compensation for internal building damage and carpet damage by water, I am not sufficiently satisfied that the damage was caused by the tree, particularly as no specific event causing the damage has been identified. Also, I consider from the Newmans' own evidence, that they have been aware of the need to keep their guttering effective, and have carried out regular cleaning, but not ensured that cleaning or the guttering system was adequate for the conditions. Lastly, the compensation sought for internal damage has not been clearly specified and quantified. For those reasons I find that it is not appropriate to order compensation for the internal damage. 4. Pathway damage. Mr Mckerron, Mr Bonner, Mr El-Zahoul and Mr Castor all find that the Blackbutt is the cause of damage to the adjacent path. On that basis and my own observation, I find the path has been broken and lifted by the Blackbutt. 5. The Newmans say they first noticed damage to the path in 1983. They say that they first advised Mrs Eizenberg of the problem verbally in the mid 1980s, and in writing in 2007. They provide four statutory declarations, from neighbours and their son. Two declarations state that those persons were present when Mr Newman spoke with Mrs Eizenberg about: problems caused by the trees, some 15 years ago (Mr Foster); and the tree causing damage to his house and property, 1999 and 2005 (Aaran Newman). Mr Hickson who is employed to tend the Newmans' garden, states that he has drawn Mrs Eizenberg's attention to the large Gum that has broken the concrete path during "the recent 5+ years". Mr Kieler who lived at 35 Green Point Road states that he and Mrs Eizenberg were both aware of a tree creating damage to the Newmans' property, but he does not give a timeframe for that awareness. 6. Mrs Eizenberg claims that she has no recollection of that verbal or written notice of damage. I note the disagreement of the parties on this point, but am persuaded by the statutory declarations that Mrs Eizenberg has at least been on verbal notice for 15 years. On that basis I would propose to order that Mrs Eizenberg pay some proportion of the cost of repairs to the pathway. 7. I find however, that the Newmans have been careless to be aware of the lifting pathway and its increasing hazard to persons for 26 years without doing any repair. I accept that communication with Mrs Eizenberg may have been frustrating and without result, but that does not justify them neglecting maintenance and repair of their own property for such a long period. I also consider that early repair of the pathway may have been cheaper than that required now, and may have avoided ongoing damage. 8. Mr Castor's report states that in his opinion, it is not conclusive that the Blackbutt needs to be removed. 9. On the circumstances of this case, I would propose to order that the Newmans and Mrs Eizenberg now share the cost of the pathway repair equally, and I would not propose to order removal of the Blackbutt. 10. Damage to house walls and piers . Both Mr Mckerron and Mr Bonner find that the Blackbutt is the cause of this damage. They also both find that piers have "dropped" or "show signs of movement and settling", but neither states that they found any tree roots under the wall, under the piers or visible on the ground under the house. At the hearing, Mr Newman advised that the damaged pathway had not been removed to allow inspection of the ground surface or digging of that area between the tree and the house for roots. 11. The Newmans say that they first noticed cracks in the external and internal southern walls in 1995, and dropping of the piers under the southern part of the house in about 2002. 12. Mr El-Zahoul addresses the external damage only, and concludes it is caused by soil erosion and settlement of the building which is on land that is very steep. At the hearing, he pointed out that the lifted path directs water towards the building, and the gap between the path and wall allows access for the water to erode soil from under the building. 13. Mr Castor inspected the subfloor area of the Newmans' house adjacent the Blackbutt. He found there was no sign of roots having grown under the double brick wall or its stepped footing. In relation to the "dropped" pier, he states "This movement in the pier is not consistent with direct root contact." He also states that "Indirect root influence on soil shrink/swell soil volume is not likely on this site as the soils are predominantly sandstone based and so not reactive." 14. My own observation accords with Mr El-Zahoul, that there is a gap between the damaged path and the wall. I also looked along the line of the wall from the western end, and it did not appear to be bowed in. On the basis of those observations, I favour Mr El-Zahoul's explanation that damage to the building is caused by soil erosion and building settlement. Further, Mr Castor has investigated but found no tree roots under the building; he has identified the soil type, and explained why damage to the piers is not likely to be by tree roots. For those reasons, I prefer the conclusions of Mr El-Zahoul and Mr Castor, that the Blackbutt is not the cause of the observed building damage. 15. On that basis, and with regard to my discussion above about responsibility for property maintenance, I would not propose to order any compensation for building damage to walls, footings or piers, and I would not propose to order removal of the Blackbutt. (ii) Applicant's or tree owner's steps to prevent or rectify the damage: As noted above, the Newmans have given verbal notice to Mrs Eizenberg of damage and problems for at least 15 years, but Mrs Eizenberg appears to have taken little or no any action to rectify or prevent damage. The Newmans have done some pruning of the Blackbutt near their roof, and recently obtained two engineering reports on the house and pathway damage. Mrs Eizenberg has obtained Mr Castor's tree report, and one engineering report on the house and pathway damage. (i) Injury to persons (i) Contribution other than the trees, Act or omission by applicant: In relation to the Blackbutt, the Newmans' neglect over many years to repair damage to the pathway has allowed a trip hazard to remain on their property. (ii) Applicant's or tree owner's steps to prevent injury: Mrs Eizenberg has obtained Mr Castor's tree report . (j) Other matters relevant in the circumstances of the case: (1) It seems that Mrs Eizenberg has some financial hardship. Although she lives on what appears to be expensive waterfront land, her house is old and modest, and does not appear to be well maintained, and the entry path is basic to the point of being dangerous. Additionally, she provided a receipt from Council for payment towards tree lopping; that Mr Hoff explained was part of a Council scheme to assist tree owners with financial difficulties. The proposed work in this case did not go ahead, and the money was refunded. (2) The parties came to some agreement at the hearing, and proposed consent orders as follows: a. Mrs Eizenberg shall remove the Bunya Pine, and prune overhanging branches (but not branches larger than 15 cm diameter) of the Blackbutt back to the boundary, at her cost, within six months; b. The Newmans shall repair the pathway at their cost, within six months, in a manner to avoid problems with the Blackbutt for at least 10 years, and to be at least 100 mm clear of the trunk and 50 mm clear of roots of the Blackbutt; c. Mrs Eizenberg shall have the Southern Mahogany further inspected at her cost within six months, to determine if it is suitable for long term retention. If it is suitable for long term retention, all dead wood larger than 20 mm shall be removed within that six months at her cost. If due to its structure or condition, it is not suitable for long term retention, it shall be removed at her cost within a further three months. Conclusions 24 I find that the Bunya Pine should be removed because of its increasing risk to property and persons.

25 I find that the Blackbutt should not be removed because it appears to have only damaged the pathway, not the building. I find that it may be pruned back to the common boundary, except for larger branches, as that pruning will leave a reasonably balanced tree, and Mr Castor has recommended similar pruning.

26 I find that the parties' proposal that Mrs Eizenberg pay for works to the Bunya Pine and the Blackbutt, and the Newmans pay for repair to the pathway, is a fit and workable remedy to those matters. It allows the owner of each to carry out the work as they wish, and leaves each to meet the cost of repair or maintenance that they have avoided for many years.

27 I find the six month period for orders to be completed is a fit period as Mrs Eizenberg has agreed that she is able to fund the works in that time.

28 I find, on the basis of my observations and the conclusions in Mr Castor's tree report, that the Southern Mahogany is not suitable for long term retention. Further, on the evidence of past problems of communication and property maintenance by the parties, I find it more appropriate to order removal of the tree than to set them a course of ongoing assessment, reporting, treatment and pruning of the tree. Additionally, considering the Newmans desire for certainty regarding the safety of this tree, and Mrs Eizenberg's financial hardship, I find it more appropriate to commit her to the single cost of tree removal, rather than a further report, ongoing maintenance, and the likely need of future reports on the tree. On that basis, I will order removal of the Southern Mahogany, to be completed within six months at Mrs Eizenberg's cost.

29 I find that Mrs Eizenberg should not pay any compensation to the Newmans for building damage, for the reasons explained in detail above, and simply because there is no proof that structural building damage was caused by the Blackbutt. Orders 30 The application is upheld in part and the Court makes the following Orders: 1. These orders apply to 33 Green Point Road Oyster Bay, and 31 Green Point Road Oyster Bay; 2. The Bunya Pine shall be removed, leaving at most a 20 cm stump above ground level. This work shall be carried out at Mrs Eizenberg's cost, within six months of the date of these orders, by an AQF level 3 arborist; 3. The Southern Mahogany shall be removed, leaving at most a 20 cm stump of each above ground level. This work shall be carried out at Mrs Eizenberg's cost, within six months of the date of these orders, by an AQF level 3 arborist; 4. The Blackbutt shall be pruned to remove all branches over the Newmans' property at 31 Green Point Road Oyster Bay, except that no branch shall be cut where its diameter is greater than 15 cm, and the trunk shall not be cut. This work shall be carried out at Mrs Eizenberg's cost, within six months of the date of these orders, by an AQF level 3 arborist; 5. The work described in 2., 3., and 4. above shall be carried out in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees , and the NSW WorkCover Code of Practice for the Amenity Tree Industry (1998) , by contractor(s) with suitable insurances; 6. The work described in 2., 3., and 4. above shall take place at reasonable times, on reasonable notice to the Newmans, and the Newmans shall grant access for the work to be done; 7. The damaged pathway and two steps, being in total about 4 m in length, on the Newmans' property beside the Blackbutt tree shall be repaired or replaced at the Newmans' cost within six months of the date of these orders. The work shall be done in a manner to prevent damage to it from the tree for at least 10 years, and the path/step structure shall be at least 100 mm clear of the tree trunk and at least 50 mm clear of roots of the tree, at the time of completion.

___________________ Peter Thyer Acting Commissioner of the Court The formal orders may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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.