Foran v Khiabany & anor

CASES CITED: Robson v Leischke [2008] NSWLEC 152

APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

08/20262 Robyn Foran v Shahnam Aminy Khiabany & Massy Amini

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Citations have been inserted.

The consequence of the Court's decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

1 COMMISSIONERS: Until very recently, a substantial Leyland Cypress tree grew on a property at 4 Blackbutt Street, Wyoming. Ms Foran, who lives in the property to the north, at 6 Blackbutt Street, had made an application to the Court for the removal of the tree and for compensation for damage to the concrete slab on the driveway immediately adjacent to the tree and a further concrete slab forming part of the pathway to her house (and running along the front of the house).

2 Between the time of lodgement of the application under the Trees (Disputes Between Neighbours) Act 2006 and the time of the hearing, the tree has been removed and the tree's owners have given evidence to us that the stump of the tree has been poisoned.

3 Although the tree has been removed, consistent with the position set out by Preston CJ in Robson v Leischke [2008] NSWLEC 152 at para 144, the Court still has jurisdiction to hear and determine the compensation application as the tree was in existence, on the adjoining property, at the time the application was made to the Court.

4 With respect to the tree and its poisoning, we are satisfied that, with the exception of the removal of such roots as may be necessary to re-lay portion of the driveway, it is not necessary to make any order with respect to the stump or other roots of the tree. We are not, as a consequence of the tree's removal, required to make any determination as to whether we would have made an order for removal of the tree had it still been standing.

5 However, we are still required to consider the tests contained in s 10(2)(a) of the Act concerning the damage that Ms Foran submits has been caused to her property by the tree. We are satisfied, on the balance of probabilities, that it is likely that some damage has been caused to her property by the roots of the tree and, as a consequence, the Court's jurisdiction is enlivened.

6 It is relevant, in our consideration of the possible impacts of the Leyland Cypress, also to have regard to two Cocos Island Palm trees which were growing on Ms Foran's property and which were removed (according to an invoice she has shown us) in February 2005. One of those palm trees was immediately adjacent to an expansion joint in the pathway to her house (being the expansion joint between the slab at the foot of the stairs and the slab leading to the driveway) and the other being located in a curve in the upper driveway slab in the vicinity of an expansion joint - being the expansion joint where the lifting in the driveway slab and its displacement from the principal driveway slab leading to the Council's road reserve has taken place.

7 It is convenient, for the purposes of this decision, to deal, separately, with the two elements of concrete slab - that on the pathway and that on the driveway.

8 We turn first to deal with the question of the slab between the driveway and the house. We have considered the line of concrete marking shown on the brickwork, by this slab, across the face of the house. It discloses a significant degree of subsidence of the face of the slab immediately adjacent to the house and a degree of lifting of the subsided slab in the immediate vicinity of the stump of one of the Cocos Island Palms removed in 2005. This displaced expansion joint is some 8 to 10 m from the Leyland Cypress but the Cocos Island Palm which has been removed was some only 300 mm from this displaced expansion joint. We are not satisfied, on the balance of probabilities, that there is any significant likelihood that that damage to this slab was caused by the Leyland Cypress. Indeed, on the contrary, we are satisfied, on the balance of probabilities, that it is likely that this displacement of this slab was caused by the Cocos Island Palm.

9 Further, we note that neither Mr Kingdom, an arborist of Advanced Treescape Consulting, who provided a report to the applicant, or Mr Sheaves of East Coast Property Inspections, her building consultant, who provided two reports to the applicant, deal with this displacement at all. Indeed, the building consultant's report make no mention of the pathway to the house.

10 This element of Ms Foran's compensation claim is therefore rejected.

11 We now turn to the question of the displacement of the slab in the driveway. This slab is presently displaced, in an almost uniform extent, across the face of the driveway by approximately 5.5cm - that is the slab closest to the house is approximately 5.5 cm higher than the main slab leading to the Council's road reserve. The stump of the second Cocos Island Palm in the vicinity of this slab and the stump of the Leyland Cypress, in relative terms, are in approximately similar positions with respect to the slab but on opposite sides of it.

12 There is, immediately adjacent to the stump of the Leyland Cypress, also a substantial root from it leading under the slab. This root was exposed during the course of the hearing. The slab also shows cracking immediately above that root.

13 The displacement of this slab has risen by approximately 0.5 cm since the first of Ms Foran's building reports in mid-2007. On Ms Foran's evidence, the displacement now is approximately double the level of displacement at the time she says she brought this matter to the attention of the respondents in mid-2006.

14 The respondents do not accept that the displacement of the slab was part of the discussion that took place at that time. It is their recollection that the discussion concerned the tree itself rather than the driveway. Whether or not that is the case (and we are of the view that it is not necessary so to determine for the purposes of this hearing), we are satisfied that Ms Foran drew to the attention of the respondents her concerns about tree in mid-2006 when the extent of the displacement of approximately half that which is now evidenced.

15 As earlier mentioned, the displacement is comparatively uniform across the face of this slab. Part of the increase may be caused by settlement of the downhill slab and part by displacement by tree roots. Any downhill settlement may be caused by the evacuation of sand underneath that slab - as discussed in Ms Foran's building consultant's report.

16 However, the uniformity of lifting and the proximity of the two sets of tree roots (from the removed Cocos Island Palm and from the now removed Leyland Cypress) cause us to conclude that it is reasonable to accept that each of these trees will have contributed to the lifting of the upper slab and possible subsidence of the lower slab.

17 We could not be satisfied, on the balance of probabilities, that the Leyland Cypress was the sole cause of lifting of the upper slab and any resulting downhill subsidence.

18 We have also considered the extent to which the lifting may have taken place since Ms Foran discussed the tree with the respondents in mid 2006.

19 Ms Foran has provided with a number of quotations for the proposed replacement concreting. The areas of concrete, in the two quotations, do not appear to have any dimensional relationship to the size of either of the slabs that are the subject of the application. The replacement main driveway slab quoted is some 3 m by 4 m but the whole of this displaced slab is actually of a greater length and a much lesser width.

20 As we are satisfied it is appropriate to order that the respondents only make some contribution to the replacement of a portion of the driveway slab, we consider that the appropriate way to do this is if Ms Foran undertakes a cutting of the upper slab 2 m from the present expansion joint toward the house with replacement being a length of new slab built to an appropriate standard (being a reinforced 100 mm thick concrete slab to the appropriate technical concrete specification). We consider that would be the maximum appropriate work of rectification to contemplate.

21 We are satisfied that the contribution of the trees on either side of the driveway to the displacement requires that the amount of work to be paid for, on an apportionment by tree basis, would be 50% attributed to Ms Foran's tree and 50% to the respondents' tree.

22 The fact that the displacement was not drawn to the attention of the respondents until it was approximately 50% of the now present displacement is, consistent with comments on notice and opportunities to abate made by Preston CJ in Robson v Leischke at para 207, a matter that requires a further adjustment to any contribution.

23 Before coming to the precise calculations that we have made, it is appropriate to note a number of other matters concerning the procedures in this application.

24 The first is that, when the matter was first set down for preliminary hearing on 19 May 2008, Mr Hudson, the solicitor then appearing for the applicant, noted that he had been unable to serve the respondents with the application. The matter was stood over for a further preliminary hearing on 16 June. On that occasion, Mr Hudson indicated that he had still been unable to effect service. As a consequence, the Court made orders, pursuant to s 8(2) of the Act for a form of substituted service on the respondents. That substituted service was on the solicitors who are acting for the respondents on the sale of the property (but subject to a right of denial of service on the basis of lack of instructions to accept it) and, without right of denial, on the estate agents acting for the respondents on the sale their property.

25 The respondents, having attended the hearing today, have confirmed to us that the appropriate point of future service upon them of documents (including this decision and any orders arising from it) is through the solicitors acting for them on the sale of the property.

26 A further matter to which we should turn, before detailing the orders that we propose, is the element of Ms Foran's compensation claim for reimbursement of the costs of the two building consultant's reports and the arborist's report.

27 With respect to the two building consultant's reports (made in mid-2007 and in late 2007), these reports merely address tree roots coming from the now removed Leyland Cypress. They make no mention whatsoever of roots from the stump of the Cocos Island Palm which was removed on the northern side of the driveway. Although neither report mentions the lifting of the pathway slab, this is understandable as it is a late addition to Ms Foran's compensation claim. However, the failure to make mention of the uniformity of lifting across the face of the expansion joint and the fact that the reports are silent on possible impacts from roots to the north is inexplicable and entirely inappropriate. This defect in their analysis significantly lowered the value of these reports in our understanding of the issues involved.

28 A similar general proposition arises with respect to the arborist's report. The arborist's report notes the existence of one of Cocos Island Palms in the site plan attached to his report. He concludes that the Leyland Cypress "is the major cause of the damage to the front slab". No significant discussion is made of the contribution that may have been made by Cocos Island Palm (apart from mentioning that the palm had been present and may "have been capable of raising a cement slab because of its fibrous root ball"). He made no attempt to comment on any possible proportional attribution of the damage between the two trees. This failure also renders that report of insignificantly utility to us.

29 For reasons of these significant defects in these reports, we are not prepared to order any reimbursement of the cost of any of those reports to Ms Foran.

30 With respect to the orders to be made, we have earlier concluded that what needs be replaced is a 2 m length of slab from the expansion joint towards the garage. This needs to be removed and replaced with a 100 mm thick reinforced slab. We have concluded we should make an allowance for the respondents to contribute one quarter of the cost of that but only after that work is completed. 31 The orders of the Court therefore will be that: 1. If the respondents are provided, through the solicitors representing them on the sale of their property, Rishworth Dodd & Co, with a copy of a receipted invoice including concreting for the replacement of a 2 m section of the driveway from the expansion joint towards the house, the respondents are to pay a quarter of that cost to the applicant; 2. The amount so due is to be paid within 60 days of the date of service upon their solicitors of the receipted invoice; and 3. If their solicitors cease to act for them for the purposes of these orders, the respondents are to advise the applicant within 28 days of the new address at which they can be served with a claim for payment pursuant to (1).

32 We have also carefully considered whether we should provide an upper limiting amount to the amount of compensation to which the respondents are exposed. We have reached the conclusion that we should do so.

33 Although the concreters have quoted Ms Foran an amount of $100 per sq m based on a larger area of concrete at 150 mm thickness, we consider that we would take the area involved for the replacement discussed (which is approximately 6 sq m), and also allow about $100 per sq m which, given the now smaller size of the job, will offset the lack of slab thickness now required.

34 We think that a further allowance of a similar sum should be made for the concrete cutting and disposal of the element of the slab to be removed. We consider a further contingency sum, of one third of the total amount, would be appropriate. This results in allowing costs of $600 for the concreting; $600 for the removal and one third of the total of $1200 (that being $400) for a contingency sum - thus making a total of $1600. One quarter of $1600 is the maximum amount, therefore, which the respondents will be required to pay to the applicant on the presentation of the appropriate receipted invoice. As a consequence, the respondents' liability for the replacement of portion of the upper slab will be limited by the orders to $400. Tim Moore Judy Fakes Commissioner of the Court Acting Commissioner of the Court

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