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[2012] NSWLEC 1067
Land and Environment Court (NSW)
2012-03-08
Original judgment source is linked above.
Donna Hardie (Agent for the Respondent) File Number(s): 21176 of 2011
Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1ACTING COMMISSIONER: In September 2010 this Court gave a decision regarding a Camphor Laurel tree in Kogarah. In Awad v Hardie (No 2) [2010] NSWLEC 1258, Senior Commissioner Moore and myself (Acting Commissioner Galwey) found that there was no evidence that tree roots had caused damage to Ms Awad's dwelling. We also concluded that if gutters were blocked by leaves, leading to water damage to the dwelling, such damage could have been avoided through reasonable maintenance. Similarly, we concluded that any risk of injury from fallen leaves and other small debris from the tree could be avoided through reasonable garden maintenance. The application was dismissed. 2The decision concluded at [15] with the following note: "However, we observe, in conclusion, that, in the case of Hinde v Anderson and anor [2009] NSWLEC 1148, the Court dealt with the question as to what might provide a basis of some future application if circumstances concerning the tree were to change and a proper basis for a further application based on that change has been demonstrated to the Court. The circumstances of the principles discussed in Hinde v Anderson also apply in these circumstances." 3A full reading of Hinde v Anderson makes it clear that a new application may be made to the Court regarding a tree that was the subject of an earlier application under the Act, provided that there are changes to the circumstances concerning the tree. 4Ms Awad has made a new application with regard to the same Camphor Laurel tree on the basis that it has caused damage to her property and is likely to cause injury. I must determine if there have been any changes to circumstances regarding the tree and its possible contribution to damage or risk of injury. The application 5Ms Awad's current application, made under the Trees (Disputes Between Neighbours) Act 2006, concerns the same Camphor Laurel tree and the same damage to her dwelling as did her previous application. She seeks the removal of the tree. In fact, the proposed orders in the application are for the removal of the tree by Kogarah Council, at the respondent's expense. A further order is sought for the rectification of the existing colourbond fence along the boundary following tree removal. 6With regard to the inclusion of the local council in the orders sought, I note that s 9 of the Act does not give the Court power to order the local council to carry out any works. Section 17 of the Act describes the process of an applicant requesting the local council to carry out works for which the Court has made orders that the respondent has not carried out. As the Court has not made any orders regarding the Camphor Laurel, this is irrelevant here. 7The application includes a report by Mr Victor Ignatenko, a structural and civil engineer. The report contends that the tree has caused structural damage and will cause further damage and danger to human life. 8Ms Awad submitted photographs showing two branches that have fallen from the Camphor Laurel since the decision of September 2010, along with a statement from Dr Peter Parras (dated 14 December 2011) that she "... recently sustained a fracture of the left foot in the area of the 5 th metatarsal. She states that she lost her footing in her backyard when she tripped over branches and leaves which were overhanging onto her property from her neighbour's backyard." 9In an earlier statement dated 25 August 2011 Dr Parras asserted that the Camphor Laurel tree is causing Ms Awad stress and that she has difficulty cleaning up fallen leaves because of her condition.
On-site hearing 10During the on-site hearing the cracking of tiles and plaster in the kitchen and cracking of plaster in the upstairs bedroom were observed. Their condition has not changed since the on-site hearing of 2010. 11Similarly, the conditions of the outside of the dwelling, the concrete path and the ground in the rear garden have not changed since the 2010 hearing. 12The Camphor Laurel tree was inspected. The tree is healthy and, although it has been lopped in the past, has no major structural defects. There were no signs of recent large limb failures. The tree's condition has not noticeably changed since the previous on-site hearing. Are there changes to the circumstances concerning the tree? Damage to property 13The tree's condition has not noticeably changed since September 2010. The condition of the dwelling has not noticeably changed since September 2010. The only additional information regarding the structural damage claimed by the applicant is the report by the engineer, Mr Ignatenko, dated 25/10/11. I include the body of that report below. STRUCTURAL ENGINEER'S REPORT REFERENCE: Existing large Camphor Laurel tree on the boundary between No. 14 and N0. 16 Park Street Kogarah NSW, 2217. The above site was inspected on the 28 th September 2011. The large camphor laurel tree of about 1200mm diameter at the trunk and approximately 20m in height is located at 3.9m from the corner of the two story [sic] full brick residence at No. 14 Park Street Kogarah. On the ground floor, at the corner of the building closest to the tree, due to roots presence a number of structural cracks have already been observed. The floor is separated from the walls and the tiles appear fractured and split. On the first floor in the same corner, there are some cracks that were similarly developed. It is expected that those cracks will grow substantially due to the presence of the tree. A tree such as this, planted next to houses, fences and brick walls can exhibit very damaging effects to the surrounding structures and can be even catastrophic if the tree fully or partly comes down on or around the house. Significant large tree branches have already fallen down. Australian Standard AS 2870 "Residential Slabs and Footings" in Appendix B2.3 (C) recommends that tree planting next to a house should be restricted to a distance of 3/4 the height of the mature tree. For our case, this distance should be 0.75 X 20m = 15m and not 3.9m. It is therefore absolutely and strongly recommended that the tree be removed as soon as possible as it will create further structural damage to both buildings and danger to human life. 14The report does not assist the Court in any way. It includes the statement "... due to roots presence a number of structural cracks have already been observed." However it is not clear on what investigations this conclusion is founded. In fact, there were no investigations, or at least none mentioned in the report. It is rarely enough for a structural engineer to visually inspect a dwelling, observe that its plaster is cracked, and then observe a nearby tree, and finally conclude that the tree has caused the damage. Vital steps are missing from the process. Steps that may be required include a level survey of the building to identify where the foundations have moved, soil moisture tests to establish the cause of any foundation movement, root investigation and identification, and monitoring over time. 15The statement that "A tree such as this... can be even catastrophic if the tree fully or partly comes down" provides no relevant information about this particular tree or the environment in which it grows. 16Mr Ignatenko's reference to recommended tree planting distances near buildings is out-dated. AS 2870-2011, which replaced AS 2870-1996, includes no such reference. Furthermore, even if this standard had not been updated, a general recommendation for tree planting distances from buildings does not show that this tree has caused damage to this dwelling. 17Mr Ignatenko's final statement that the tree "will create... danger to human life" is, in my mind, akin to an arborist providing expert evidence that a brick wall is dangerous. It may be her or his personal opinion, but it is not their area of expertise. 18The role of a structural engineer, in cases such as is this, is to assist the Court in determining whether a tree has caused or contributed to damage to a property. There is nothing in Mr Ignatenko's report that leads me to be satisfied, as required by s 10(2)(a) of the Act, that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property. 19I understand that Ms Awad contracted Mr Ignatenko in good faith. Ms Awad asked if she might have the opportunity to obtain a more thorough report. As the applicant, the timing of the application has been of her own choosing. Ms Awad has had time to obtain all relevant information. It would be unfair on the respondent to extend the matter by providing the applicant with more time to obtain further expert evidence.
Risk of injury 20Photographs submitted with the application show two branches that were said to have fallen into Ms Awad's garden. They appear to be less than 50 mm in diameter at their bases. Ms Awad states that she tripped on one of these branches and injured her foot. 21To make any orders in relation to injury under Part 2 of the Act, the Court must be satisfied, according to s 10(2)(b), that the tree concerned is likely to cause injury to any person. While I have empathy for Ms Awad's condition, there was no evidence submitted that the tree is likely to fail, and observations made at the onsite hearing did not satisfy me that the tree is likely to cause injury. I understand that Ms Awad has difficulties cleaning up leaves, but such difficulties must also apply to other areas of home maintenance. To my mind the tree does not impose unreasonable levels of maintenance upon Ms Awad.
Fence 22At the hearing Ms Hardie, on behalf of her mother, stated that some fence panelling had been removed by Ms Awad. Ms Awad claimed this was done to allow the survey required as part of the earlier hearings, however photographs supplied by Ms Awad show that fence panels were properly installed after the survey was done. Ms Awad then said that she had someone remove the fence panels, but could not remember why. The fence has not been damaged by the tree and the Court will not be making any orders regarding the fence.
Conclusions 23There have been no significant changes to the circumstances regarding the tree. Nothing in this new application leads me to be satisfied that the tree has caused damage to the applicant's property or that it is likely to cause injury. 24As a consequence, the application is dismissed in its entirety. D Galwey 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: 21 March 2012
Awad
Hardie