TREES [NEIGHBOURS] Damage to propertyrectification ordered
Judgment (6 paragraphs)
[1]
Judgment
COMMISSIONER: The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of several trees and shrubs growing on the respondent's property as well as rectification of damage allegedly caused by those trees to property on their land.
The applicants are also seeking an order for the reimbursement of the Class 2 application filing fee. In regards to this last request, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.
The orders are sought on the applicants' contentions that the roots from the trees, in particular the large root of a Mulberry tree, have caused, are causing, and could continue to cause damage to the dividing fence, the concrete floor of their garage, and a section of driveway.
The respondent contends that he did not plant the trees and that it is unreasonable to pay for damage to a structure he alleges was constructed without consent and which may not have been constructed to reasonable standards. Questions were also raised about the lack of evidence that roots had caused damage to the driveway as well as the time taken for the applicants to notify him of the alleged damage.
In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:
(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.
Injury is not pressed.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…". In Robson v Leischke [2008] NSWLEC 152 at paragraphs [176] to [189] Preston CJ discusses the requirement for a clear nexus between the tree, the subject of the application, and the damage to property. At [179] in Robson, His Honour notes that a tree that is the subject of the application does not need to be the sole cause of the damage in order to engage the court's jurisdiction.
The applicants have not provided any expert opinion, either arboricultural or engineering. In Exhibit 1, the respondent has included an email from someone called James from TPS - Trees Plants Soil, who apparently inspected the trees and who viewed photographs of the alleged damage. He notes that the roots of what he calls the "Musa", i.e. the Mulberry [correct botanical name being Morus sp.] as being the likely cause of the lifting of the garage slab given the size and proximity of the large root he observed growing from the tree and under the slab (photographs in Exhibit 1).
With the arboricultural expertise I bring to the Court, I identified the trees growing at the rear of the respondent's property and against the common diving fence as comprising: a mature, multi-trunked Mulberry, a Cestrum nocturnum, and three Ligustrum lucidum (Broad-leaf Privet). All plants are commonly considered weed species and are easily self-sown from bird droppings. The multi-stemmed form of the Mulberry and larger Privets indicates that the trees may have been cut to ground level in the past but have since suckered.
Regardless of the species and or their origin, the trees the subject of the application are trees to which the Act applies as they are wholly situated on the respondent's adjoining land.
[2]
The garage floor
There is some dispute over the age and legality of the garage. A MWSD drainage diagram dated 14/5/91 indicates a structure in the position of the current garage. The construction materials, including fibro, would indicate that the garage has been in place for some decades and it was certainly present when the applicants purchased their Riverwood property in 2002. Whether or not it was built with development consent is not a matter for consideration under the Trees Act. However, the age and construction of the slab can be considered as contributory factors.
There is a large structural root clearly visible above the surface of the soil between the Mulberry and the garage in the narrow space between the fence and the garage wall. I am satisfied that this root is from the Mulberry as it has the same bark characteristics. Fine roots were found beneath the slab in the large crack; it is reasonably probable that these arise from the Mulberry.
Thus I am satisfied to the extent required by s 10(2)(a) that this root is a cause of the cracking and lifting of the concrete garage floor and the Court's jurisdiction to consider what orders should be made is engaged.
In the making of orders, relevant matters under s 12 of the Trees Act must be considered. Relevant here:
The Mulberry, and indeed the other trees and shrubs, are very close to and or abut the dividing fence, and as they grow have the potential to cause damage to the fence and to the nearby garage (s 12(a));
As noted above, the garage is likely to have been in place for some decades. During the on-site hearing the first applicant opined that the garage, and therefore the slab, could be up to 50 years old. The lifted section shows some reinforcing of an approximately 50mm thick slab. I also noted the absence of any expansion joints. Apart from the lifted section there are many other cracks in the slab (s 12(h)(i);
In regards to the notice given to the respondent, a letter in the application claim form to the managing agents for the respondent's property indicates that attempts were made to contact the owner in 2013. The owner resides in Melbourne (s 12(j)).
[3]
Findings - garage floor
On the basis of the evidence and with the benefit of viewing the site, I am satisfied that the Mulberry and the Privet trees growing at the rear of the respondent's property should be removed, the stumps ground and any remaining roots poisoned to prevent regrowth. As the Cestrum is intermingled with the base of the Mulberry, this should also be removed.
I am also satisfied that the Mulberry root is a cause of the damage to the concrete floor and that the respondent should contribute 70% of the cost of replacing the slab. I am not satisfied that the full cost should be borne by the respondent given the age of the slab, the absence of expansion joints, its relatively thin thickness and its unknown history of use and thus normal wear and tear.
The applicants have included a quote for the removal and replacement of 15m2 of concrete flooring (Exhibit B). This retains a section of original slab around the edge which avoids the need for any structural work to the garage frame. The specification in this quote from Aus-Con (NSW) Pty Ltd should be the basis of any further quotes the parties wish to obtain.
Orders will be made for an appropriate timetable for the work to be quoted, completed and paid for.
The applicants have also included quotes for incidental works including repainting and recarpeting. There is no evidence that either the paint work or the carpet has been damaged by the respondent's trees; any incidental costs will be at the applicants' expense.
[4]
The driveway
The applicants contend that a 31m2 section of driveway should be replaced at the respondent's expense. They submit that roots from the Mulberry and/ other trees have caused the centre of the section of driveway closest to the garage, and beneath a carport, to be upwardly deflected and cracked.
Unlike the crack in the concrete floor of the garage, while there is a hypothetic possibility, there is insufficient evidence to convince me, to the extent required by s 10(20(a) that the roots from any of the respondent's trees have caused this uplift and cracking. I observed similar cracking and lifting of individual sections of concrete over the entire and extensive length of the driveway from the street to the garage. While some sections of concrete are newer than others, it is likely that the driveway is contemporaneous with the garage and will have been subjected to normal wear and tear. The change in level towards the garage appears to be a deliberate construction to bring the driveway to the level of the garage slab. A new section of pathway has been installed to accommodate the change in levels.
While this element of the claim is dismissed, the removal of the respondent's trees and poisoning of roots will prevent any future damage.
[5]
The fence
The dividing fence between the parties' properties is a 1.8m Colorbond® fence. The majority of the fence is in very good order. The final panel between the garage and the rear fence has been displaced by the large woody root from the Mulberry. I am satisfied to the extent required by s 10(2)(a) that orders should be made for its rectification.
The panel is functional but displaced. Orders will be made for its reinstatement. The repair of this panel may require the resetting of the adjoining panel. This work should be at the respondent's expense and it may facilitate the tree removal process if the fence panel/panels are removed prior to the removal of the trees and reinstated after the removal of the trees.
[6]
Conclusions and orders
On the basis of the findings made in this judgment the Orders of the Court are:
1. Within 30 days of the date of these orders, the respondent (or his agent) is to engage and pay for an arborist with a minimum qualification in Arboriculture of AQF level 3 to remove the Mulberry, Cestrum and all Privet from the rear of the respondent's property. The stumps are to be ground to a depth of 300mm and any remaining woody roots are to be poisoned. Should it be necessary to facilitate the removal of the trees, any adjoining fence panels may be dismantled and stored for replacement by a fencing contractor after the removal of the trees.
2. The work in (1) is to be carried out in accordance with the WorkCover Code of Practice for the Amenity Tree Industry or its equivalent.
3. Within 14 days of the removal of the trees, the respondent is to engage and pay for a fencing contractor to reinstate the displaced panel/ panels of dividing fence.
4. Within 35 days of the date of these orders, the parties are to have obtained and exchanged up to two quotes each for the removal and replacement of 15m2 of the central section of the concrete garage floor to the specifications provided in the Aus-Con (NSW) Pty Ltd quote. If the respondent agrees, that quote may be sufficient. If further quotes are received, the parties are to agree on a suitable contractor. If no agreement can be reached the cheapest quote is to be selected.
5. Each party is to provide reasonable access on reasonable notice for the purpose of quoting and or carrying out the works in orders (1), (3) and (4).
6. The applicants are to engage and pay for the nominated contractor to carry out the works in order (4).
7. The work in (4) is to be completed by 2 February 2018 otherwise order (8) lapses.
8. Within 21 days of the receipt of a tax invoice for the completed works in (4) the respondent is to reimburse the applicants 70% of the agreed quote.
Judy Fakes
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: 15 September 2017