TREES [NEIGHBOURS] Damage to propertydebrispotential injurycompensationsufficiency of evidenceMs I Girgis (Agent)
Respondents: Mr M Fozzard (Barrister)
Judgment (8 paragraphs)
[1]
Solicitor: Mr A Bilias
File Number(s): 80041 of 2017
[2]
jUDGMENT
COMMISSIONER: The applicants own a property in Voyager Point in the Liverpool local government area. They have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for a range of orders to be paid for and undertaken by the owners of two trees growing in an adjoining property to the east and rear of the applicants' property.
The applicants contend that the two Golden Cypress trees have caused damage to the applicants' paving, pergola, barbecue and guttering. They are seeking orders for: the removal of the trees, including the removal of all roots and debris from their property; repair of cracked or damaged pergola panels; repair of damaged fence panels; repair of lifted paving; repair, cleaning or replacement of a barbecue and surrounding area; and repair or replacement of damaged tiles and brickwork around the barbecue area.
Apart from the damage they say the debris and roots have caused to their property, the applicants are concerned that given the size of the trees, a strong wind or storm may lead to branch failure and thus potentially to further damage and or injury. The applicants state that the lifted pavers are trip hazards. Further, they state in their application claim form that there is a rodent and insect problem exacerbated or caused by the trees as well as a mould problem; all issues that raise hygiene concerns. The applicants contend that the trees are restricting sunlight to their property and encouraging mould.
The applicants are seeking a sum of $10,823.00 which includes quotes or receipts for: removal of paving and roots and replacement of paving ($3000); out of pocket expenses for the replacement of a pergola and guttering damaged after a storm in 2011 ($2840); pest control and gardening services for the past two years ($2584); and replacement of the barbecue and surrounding structure ($2399).
The applicants rely on a 'Property Inspection Report' prepared by Mr Paul Cavallo of IBI - Independent Building Inspections and dated 19 August 2016. Mr Cavallo was not present at the on-site hearing.
The respondents, through their barrister Mr Fozzard, reject the claim and press for the dismissal of the application. Mr Fozzard specifically objects to the inclusion of Mr Cavallo's report on the basis that Mr Cavallo has not agreed to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 and has not complied with the requirements in that Code in the preparation of his report.
The trees in question are two golden cultivars of Cupressus macrocarpa (Monteray Cypress). They are two of four or five similar trees planted by the respondents in 2000 shortly after the respondents moved onto their property. The respondents value the trees for the shade, screening and general amenity they provide. The trees have been pruned so that little of the canopy overhangs the applicants' property. The two trees have been planted within a metre of the common boundary.
The applicants' property in contention includes a paved area bounded by the applicants' dwelling, back lawn and the rear fence. A pitched roof pergola that is roofed in polycarbonate sheeting covers the majority of the paved area.
The eastern and partially enclosed end of the pergola is close to the dividing fence, and thus close to one of the trees. Beneath the eastern end of the pergola and very close to the fence is a gas barbecue mounted in a brick and tile structure.
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.
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 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.
[3]
The pergola and guttering
The applicants claim that branches falling from one or more of the respondents' trees in a storm in September 2011 damaged the pergola. The application claim form includes an insurance company (Siemsen Group) report stating that several areas of polycarbonate sheeting on the pergola had been damaged across 60% of the sheeting. The report includes the estimated sum for insurable repairs of $2807.64 (including labour, materials and GST). The photographs of the alleged damage are in black and white and do not clearly show the damage, described as 'impact holes', and do not show the tree branch. Page 4/13 of the report notes that no tree removal or 'lopping' is required. The application claim form also includes a quote dated 29.9.11 from AAA Tap Washer King, but not a tax invoice, for $4840.00. There is no evidence to identify what if any work was eventually carried out and who paid for it.
It is unclear from the evidence whether the respondents were advised of the damage and or the claim. Paragraph [8a] in the second applicant's affidavit (in Exhibit B) states that following the insurance claim an arborist was contracted to prune the trees from the applicants' side. The arborist is said to have approached the respondents and a disagreement ensued. The applicants paid the arborist $2000 but the work was not completed. There is nothing in the respondents' material to counter or corroborate this statement. Mr Fozzard for the respondents submits that given the time frame between the incident and the matter now before the Court, the foundation of the Siemsen report cannot be tested.
The only damaged section of Perspex/ polycarbonate sheet I was shown, and for which any evidence is provided (see photograph 2B in Exhibit B) is a section of sheeting at the eastern end of the pergola in the partially covered section of the pitched end. This section of sheeting is cracked between its points of attachment to a central batten. The sheet is on the inside of a section of lattice that extends above the fence line. That is, the lattice is between the polycarbonate sheet and the tree.
The respondents commissioned a Technical Report from Australian Access and Building Solutions. The report prepared by Ms Vesna Giles and dated July 2017, considers the elements of the applicants' property allegedly damaged by the respondents' trees. Ms Giles attended the on-site hearing but was not required for cross-examination. In Ms Giles' opinion (at [7.4.1] Exhibit 1) the crack in the Perspex fascia could have been caused by compression or movement of the structure, temperature fluctuations or from being hit by something from the inside of the pergola (given the lattice on the outside).
Notwithstanding the statement in the Siemsen report, and noting Mr Fozzard's submissions, there is no evidence before me that any failure of a branch of one of the respondents' trees caused the crack in the section of polycarbonate sheeting I was shown. Similarly I am not satisfied that there is sufficient evidence to justify any payment of compensation for past damage. As s 10(2)(a) is not satisfied for this element of the application, the claim for compensation for the pergola is dismissed.
In regards to the guttering, photographs in Mr Cavallo's report and in Exhibit B show gutters blocked with debris from the respondents' trees. In her affidavit, the second applicant states that she cleans the gutters weekly and finds it a "tedious and disgusting job" and she sees how much damage has been caused by the needles. Neither Mr Cavallo nor the second applicant explain or identify what, if any, actual damage has been caused by the debris from the cypress trees.
While I am not satisfied that any damage has occurred to the guttering as a consequence of the leaves, as a matter of discretion I would not make any order for any intervention with the tree on the basis of leaf litter.
In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paragraphs [168] to [173] discusses 'damage' in general. In this discussion, his Honour specifically noted (at [171]) that:
171 However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not "damage to property on the land" within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7.
Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that:
For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.
The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.
There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter.
While mould can be said to be 'damage' (see Wilson v Farah [2017] NSWLEC 91), there is no evidence of the nexus between the mould and the respondents' trees. I also note that the Tree Dispute Principle in Barker has been extended in Hendry & anor v Olsson & anor [2010] NSWLEC 1302 at [11]-[14] to include mould.
[4]
The barbecue and surrounds
In her affidavit in Exhibit B [14], the second applicant states that she cannot cook or use the barbecue area because it is usually covered in pine needles and the tiles on the bench tops are cracked and damaged. Further, she claims that the barbecue does not work because of the damage to the barbecue structure caused by tree roots lifting up the area.
Photographs in Mr Cavallo's report show the brick barbecue structure, into which the metal barbecue is set, to be within 100mm of the metal dividing fence between the parties' properties. Figure 9 in his report shows lifting/ popping of a tile on the top surface of the brick structure, which he states as being the likely result of upward forces from tree roots.
In regards to Mr Cavallo's report, I note Mr Fozzard's objections on behalf of the respondents. That report is included in the Tree Dispute Application Claim Form and is thus part of the initiating process. I agree that the report is severely deficient in its content as it provides no indication of what Mr Cavallo did in order to come to his conclusions that the trees should be removed. As such I find it of very limited value.
In [7.5.1] of her report, Ms Giles notes the cracking in one part of the top of the barbecue and around the edges. In her opinion the grouting or underlying sheet appear to have deteriorated over time. The cracked area could be from something falling onto it (not a branch because it is below the pergola) or general wear and tear.
I observed the cracked mortar between lifted sections of tiles (as shown in photograph 2C in Exhibit B). The brick structure on which the tiles are set and within which the metal barbecue is set appears to be sound with no cracks evident in either the bricks or the mortar. There was no evidence to satisfy me, on the preponderance of probability, that the respondents' trees have caused any damage to the tiles or brick structure or to the barbecue itself. While roots have lifted some pavers (see below), there is no evidence that roots have caused any uplift of the brick structure. There was no evidence of any build-up of debris that would render the barbecue unusable. There is no evidence that the debris is of such a volume that it is entirely incapable of being removed in the course of normal routine external housekeeping - especially as the barbecue is under cover. At the time of the hearing the barbecue area was free of debris.
There is no evidence before me to satisfy s 10(2)(a) in regards to the barbecue and thus there is no jurisdiction to order any interference with the trees on the basis of the barbecue or to order the replacement and or repair of the barbecue and its supporting structure. This element of the application is dismissed.
[5]
Fence
Order F sought by the applicants concerns repairs to fence panels. I was not shown any fence panels allegedly damaged by the respondents' trees. In the absence of any evidence, this element of the application is dismissed.
[6]
Paving
While the majority of the extensive area of pavement beneath and beside the pergola is in very good order, there are a number of sections at the eastern end that are lifted. The lifted sections are generally within 3m of the boundary fence. Photographs in both Mr Cavallo's and Ms Giles' reports show lifted tiles with roots beneath. During the on-site hearing I observed a root beneath one of the lifted pavers. In her report, Ms Giles' opines that the respondents' trees are likely to have contributed to the movement of the pavers in and around the barbecue area.
I am satisfied that roots from one or more of the respondents' trees have lifted the pavers. The lifted pavers also constitute a tripping hazard with the associated risk of injury. As a consequence I am satisfied that the relevant tests in s 10(2) are met and the court's jurisdiction to make orders is engaged.
As stated above, the lifted areas are in relatively discrete areas and the majority of the paving is in good order. There is no evidence to suggest that the entire area of paving be removed and replaced or that any extensive removal of roots is required, or indeed that the removal of the trees is warranted at this stage. Orders will be made for the sections of lifted pavers to be removed, the roots beneath severed cleanly and removed, and then the pavers replaced on compacted bedding material. This work is to be carried out at the respondents' expense.
[7]
Injury
As stated above, I am satisfied that the pavers lifted by tree roots are a trip hazard and orders will be made to rectify the situation.
Considering other aspects of the injury claim; the applicants contend that there is a rodent and insect problem exacerbated or caused by the trees. It is assumed that the order seeking reimbursement for money spent on pest inspections goes to this claim.
In Robson v Leischke at [189] Preston CJ notes that the cause of any damage or potential injury must be the tree itself and the fact that a tree may provide habitat to animals or insects, which may be a concern to an applicant, is beyond the scope of the Trees Act. Section 7 of the Act requires any damage or potential injury must be as a consequence of the tree. Therefore the claim for pest control expenses is dismissed.
The second applicant raises concerns about the general safety of the trees. As neither party engaged an arborist, the observations of the trees are based on the arboricultural expertise I bring to the court. I observed the trees to be healthy with no obvious structural defects. The limited extent of selective root removal anticipated in the making of the orders to rectify the paving is unlikely to destabilise the trees. Should the contractor carrying out the work have concerns, the respondents will be ordered to engage an arborist to assess the situation.
[8]
Conclusions and Orders
On the basis of the evidence before me I am not satisfied that the limited damage to the applicants' property warrants the removal of the trees. However, as discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.
Therefore, the orders of the Court are:
1. The application to remove the trees is dismissed.
2. The application for compensation is dismissed.
3. The respondents are to engage and pay for an appropriately qualified and experienced paving contractor to relay only those sections of the applicants' paving within 3m of the rear fence which have been displaced. The displaced sections are to be lifted, any underlying roots cut cleanly and removed, and the pavers reset onto compacted subgrade. Root removal is strictly limited to the areas of displaced paving. Should the contractor be concerned about the extent of root removal, the respondents are to engage an arborist to assess the situation.
4. The applicants are to provide all reasonable access on reasonable notice for the quoting and carrying out of the works in (3).
5. The work is (3) is to be completed by 31 October 2017.
Judy Fakes
Acting Commissioner of the Court
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Decision last updated: 01 August 2017