Large tree roots from an old camphor laurel tree on the street outside a house in Futuna Street, Hunters Hill were causing damage. The tree roots had lifted flagstones on the front path, had caused the front fence to bow and lift, and had made the front gate impossible to lock.
The owner, Dr Donnelly complained to the Hunter’s Hill Council and asked for the tree to be removed. Initially, Council agreed to remove the tree, but after it notified the neighbours and received 21 requests for the tree to remain, Council reversed its position. It decided that the tree was in good health and should be retained.
The Council considered that the interference caused by the camphor laurel roots was trivial and aesthetic only, and that the principles of give and take, and live and let live in a community were more important than the damage to the fence and the path.
The positions of the house owner and the Council became entrenched and so the dispute was adjudicated by the District Court of NSW (Dicker SC DCJ). The decision is Donnelly v Hunter’s Hill Council [2020] NSWDC 76 (1 April 2020).
Findings in relation to the arborist evidence
The Court relied upon the expert evidence of the arborists engaged by the parties to make these findings:
- The tree is a mature camphor laurel specimen about 90 to 100 years old;
- The life expectancy of the tree is likely to be about 15 years;
- The tree is growing on Council’s land – the footpath – very close to the palisade fence at the front of the house;
- The tree is of good health but of reduced vigour with some dieback in the crown area of the tree;
- The tree has multiple trunks from around 1m above ground and multiple branches from 3m above ground following severe past reduction pruning;
- The tree is of high landscape significance in the streetscape and immediate surrounds due substantially to its canopy dimensions and shade;
- If the tree was to be removed the loss of the tree would be partially offset by adjacent large trees, including two large trees on the owner’s property;
- The damage caused by the tree roots includes:
- lifting and tilting of the sandstone entrance gate pier causing the metal support rail from the pier to be deformed;
- displacement and bowing of the sandstone block base of the fence;
- lifting the entire fence opposite the tree; and
- lifting the internal sandstone flagstones on the path to the house.
- Further growth of the tree roots will likely continue to damage the fence and any replacement structure due to the apparent vigour of the tree;
- The roots were within the structural root zone as described in Australian Standard AS4970;
- The certain way of removing further damage from the tree roots is to remove the camphor laurel tree. Installation of a root barrier was not a viable option.
Other facts and findings
The house is a substantial sandstone house constructed in 1889. The owner purchased it in 1980.
In 1989, the Hunters Hill Council approved the construction of a wrought iron fence with sandstone base (the Palisade fence) designed to heritage specifications. The fence was built at a cost of about $100,000 and has stood for about 30 years.
The owner acted promptly to pursue their claim since November 2017 when a builder pointed out the damage.
Two tripping incidents have occurred on the sandstone path; the front gate no longer closes properly due to movement in the pier and is secured by a chain and padlock; and the fence has continued to bow and lift due to a large root (25cm in diameter) pushing against the base of the fence.
The tort of private nuisance
Tree disputes between neighbours are governed by the Trees (Disputes between Neighbours) Act 2006 (NSW). The Tree Act codifies the common law tort of private nuisance and provides a simple, inexpensive and accessible process for resolving neighbour disputes about trees.
However, the Tree Act does not apply to trees owned or managed by a Local Council (s 4(2)(a)), and so it did not apply to the camphor laurel which was growing on the footpath in Futuna Street.
Therefore the owner brought a claim in the tort of private nuisance seeking orders for the removal of the tree and damages against Hunter’s Hill Council, the owner of the tree.
The Court found that the Council had committed the tort of private nuisance:
- It is well established that encroaching roots from a neighbour’s tree is an actionable nuisance. The fact that the tree is located in a ‘leafy garden suburb’ will not preclude a claim based on significant physical damage.
- In this case the damage was material and substantial – the uneven path, the entrance gate no longer closing properly and the bowing and lifting of the front fence. It was not a minor or trifling interference with the owners’ enjoyment of the land.
- Council was aware that the fence would be constructed when it gave approval in 1989 and must be taken to have been aware of the damage caused by the tree roots by the visible damage to the road, kerb and footpath. The damage was brought to its attention by the owner in November 2017, yet Council has failed to take reasonable steps to bring the nuisance to an end.
- The damage by the encroaching tree roots is reasonably foreseeable and there is a real risk of further significant damage.
The Court orders
The Court indicated it will make these orders:
- An award of damages be made to the owner as follows:
- For the cost of repairing the fence, gate and path - $28,765.33.
- For two expert reports pre-litigation - $1,715.
- For interference with and loss of enjoyment of the land - $5,000.
- The tree be removed within four months (at Council’s cost). In exercising its discretion to grant injunctive relief, the Court considered and rejected Council’s arguments for retention of the tree, as follows:
- While expert opinion is divided upon whether the tree can be saved, it is important to obtain some finality and certainty in litigation instead of engaging in further investigation;
- While it is may be possible to modify the fence and the gate to retain the tree, the suggested change will give rise to further dispute;
- The tree has only about a 15 year life expectancy – it is not like a tree with a 50 year likely life where options to save it might be usefully explored;
- To retain the tree “does seem to place the tree and its roots above the plaintiff’s private rights to seek to avoid further unreasonable physical damage to his property”;
- “While community assets and amenity are important, the plaintiff’s property rights must be balanced in the relief granted.”
- The Council pay the owner’s legal costs of the proceedings.
Comments
As can be seen from the photographs the author has taken (below), there is a compelling case for the removal of the tree. The Council agreed, until the local residents opposed it.
Only owners with deep pockets can afford to challenge a Council if the Council refuses to remove a tree growing on a footpath or nature strip on a street, or on a reserve or park that Council owns or manages, where tree roots are causing damage to their property.
The author estimates that in this case, each of the Owner and Council has incurred about $120,000 in legal costs, for a five day court hearing, including the expert witnesses. The owner was successful in this case and so will recover the greater part of their legal costs from the Council.
The legal costs are high because many Councils will argue strongly for retention of trees for aesthetic and streetscape value, even if the tree is undesirable. In this case, the Hunter’s Hill Council strongly argued for the retention of a camphor laurel (Cinnamomum camphora) which is gazetted as a noxious weed under the Noxious Weeds Act 1993 (NSW) by the State Government.
Photographs taken 5 April 2020
The streetscape: the camphor laurel is to the right
The tree roots are forcing the fence to bow at the base & lift
The sandstone pathway has lifted and cracked
The tree roots have damaged the kerb and gutter