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Fang v Li & Anor [2017] NSWLEC 1503

Background

On 19 September 2017, judgment was delivered in Fang v Li & Anor [2017] NSWLEC 1503 to remove two trees pursuant to s7 of the Trees (Dispute Between Neighbours) Act 2006 (NSW) (‘Trees Act’) and established a new tree dispute principle for claims for structural damage to property caused by a tree.

The applicant’s application encompassed the following:

  • removal of a Tulip Tree which he claimed had damaged his property and would cause further damage if not removed and repair costs to his property caused by the Tulip Tree;
  • pruning of a Turpentine Tree which he claimed was likely to cause injury to people on his property.

Judgment

The Court ordered that both the Tulip and Turpentine Trees be removed for the following reasons:

Turpentine Tree

  • The Court found that adequate pruning of the Turpentine tree would remove so much of the crown that the tree would no longer be viable. As such, it was likely to cause injury in the near future and therefore must be removed.

Tulip Tree

  • Although the Court was satisfied that limbs that had fallen from the Tulip Tree had caused damage to the applicant’s property. The Court found that if appropriate pruning was done, further damage in the near future was unlikely and therefore did not order the Tulip Tree to be removed on this basis.
  • In light of the tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292, the Court found that leaves sitting in the gutter although might have contributed to the damage (e.g. degradation of guttering or blocking of the gutter) was not found to have caused the damage. The Court found that such damage could usually be avoided by the applicant undertaking reasonable maintenance of their properties.
  • The Court did not find the roots of the Tulip Tree to be the cause of damage to the applicant’s dwelling but they were found to have caused damage to his pathway and a PVC pipe. For this reason the Tulip tree was ordered to be removed.
  • The Court found that the damage to the pathway and PVC pipe existed at the time the applicant purchased the property, therefore he had suffered no material loss. For this reason, the Court did not make any order for the respondent to pay other expenses (regarding repairs and compensation) to the applicant.

Implication for Council – Tree Dispute Principle

This judgment establishes a tree dispute principle in providing “guidance where applications made pursuant to Part 2 of the Trees Act 2006 include claims for rectification of, or compensation for, structural damage to property caused by roots of a tree”.

The judgment listed the matters for investigation which would assist in forming a sound chain of reasoning to demonstrate causation, and to eliminate other facts for claims [59]:

  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.”

It is important to note that [60] “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 the 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”.

 

For a full copy of the judgment, please click here.