Kamfam Pty Ltd v Robertson

[2012] NSWLEC 1150

Land and Environment Court (NSW)|2012-05-07|Before: Preston CJ

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2012-05-07

Before

Preston CJ

Catchwords

TREES [NEIGHBOURS] Damage to property

Source

Original judgment source is linked above.

Catchwords

TREES [NEIGHBOURS] Damage to property

Judgment (12 paragraphs)

[1]

Judgment 1COMMISSIONER: This is an application under s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Narrabeen against the owners of a Camphor Laurel tree growing on an adjoining property. 2The applicant is seeking orders for removal of all parts of the tree, killing of all roots growing on their property, prevention of any regrowth of any part of the tree, and compensation for damage to property claimed to be caused by the tree. In the event that the tree is not removed, the applicant seeks orders for the ongoing maintenance or compensation for clearing excessive leaf litter and the cost of installing larger roof flashings. These orders are sought on the basis that the tree has caused damage to the applicant's property and could cause injury to any person. 3Orders are also sought for compensation for lost rent while repairs were made to the applicant's dwelling during September and October 2011 as well as reimbursement of the costs of the application and reports associated with the making of the application. 4With respect to costs, Commissioners do not have the jurisdiction to award such costs; a separate application by way of a Notice of Motion must be made. Costs hearings are heard by the Registrar or a Judge of the Court. 5In regards to compensation for lost rent, this is beyond the Court's power under s 9 of the Act. In Robson v Leischke [2008] NSWLEC 152, Preston CJ at [217] considers the Court's powers under s 9 of the Act in regards to what orders can be made. In part His Honour states: 217...The Court may make an order to "remedy damage to property" (s9(1)) and this may include making an order requiring the payment of compensation "for damage to property" (s 9(2)(i)). An order requiring payment of the compensation for economic loss that is consequential on damage to property is not an order requiring payment of compensation "for damage to property" and it does not remedy "damage to property"....

[3]

The tree, the site and relevant background 10The tree is a mature Camphor Laurel growing on the southern side of the respondents' back garden close to the dividing fence between the parties' properties. The tree is healthy with no obvious structural defects and with less than 10% of the canopy being dead wood. A portion of the canopy overhangs the applicant's property - in particular the carport and the northern side of the roof. The timber dividing fence has been constructed to accommodate part of the root crown of the tree. The tree is well in excess of one metre in diameter; the respondents estimate the tree to be at least 100 years old. 11The respondents have owned their property since 1975. The tree was very large when they moved in. According to the Affidavit of Mr Paul Robertson, the paling fence between the properties was erected in 1977. Prior to the erection of the fence and the extension works, the previous owner of the applicant's property obtained permission from (the then) Warringah Council to "substantially lop" the part of the canopy that overhung his property. 12The applicant purchased the property in 1996. It is a free-standing single storey dwelling comprising the original fibro cottage and a 1970s brick-veneered extension and associated carport. The previous owner built the extension. [A building report obtained by the applicant considers the cottage to date from the 1950s with the extension built around 1980, however, the respondents' evidence is that a former neighbour played in the tree in 1928 and the cottage dates from 1910-1920s with the extensions being built in 1977]. It appears as though the property was rented by Ms Frampton, the daughter of the previous owner, from 1987 until 2002. 13According to Ms Frampton's Statutory Declaration, between 2000 and 2002 there were problems with water leaking through the roof into a front bedroom. She informed the new owner (Mr Jerry Kamminga/ Kamfam P/L) about the leaks. According to her statement Mr Kamminga carried out a number of repairs but the roof continued to leak until she was served with an eviction notice. In her statement, Ms Frampton also states that at the time she left the kitchen was 24 years old, there was a crack in the brickwork above the arch, and an old crack in the driveway.

[4]

The hearing, evidence and submissions 14The on-site hearing commenced with an inspection of the tree from the respondents' property. Its condition is summarised above. 15The following observations were made on the applicant's property. The driveway along the northern side of the dwelling comprises 4 slabs. There most easterly slab (slab 1) is cracked, the next slab to the west, slab 2 has a crack across one corner (near the house), slab 3 is in good order as is slab 4. There is some displacement of the join between slab 3 and 4 near the patio. The paving to the west is brick with some undulations. The driveway slabs between the street and slab 1 are in good order. A section of soil between the dividing fence and slabs 2 and 3 has been excavated revealing several large woody roots. The driveway in this section is edged with a solid concrete beam. There appears to be some lifting and tilting of some of the slabs. However, overall the driveway appears in reasonable condition and is serviceable. 16Three brick columns support the northern side of the carport. The column to the east is displaced off vertical (this column is at the western end of the concrete edge beam near slab 3). There are large woody roots in close proximity to the base of this column. The remaining two columns to the west also show signs of displacement however there is no evidence of any roots at their bases. 17The carport is also supported by the 1970s verandah. The verandah roof is supported by one brick arched column and one or two timber post/s. There is separation of the mortar in the column between two rows of bricks about 2 m above the patio floor. There is some separation of mortar and a degree of displacement in the brick steps that adjoin the column and lead to the patio. The concrete floor of the patio appears to be in good order. 18The new addition appears to have been constructed on a strip footing. The original part of the cottage sits on brick or stone 'stumps'; most of which appear to be dry stacked and uneven. 19The interior of the dwelling was inspected; the renovation work has been completed but the location of the alleged damage was pointed out. 20The skillion roof on the northern side of the house was inspected and the areas where water ingress was alleged to have occurred were noted. Similarly, the applicant indicated where additional flashing and waterproofing had been installed/ applied. 21Some debris from the tree was seen on the roof. Several branches of the tree are in contact with the roof of the house and carport. 22The guttering has been removed from the house. The old guttering was still on the premises and its condition was noted. 23The material tendered in evidence for the applicant includes a 'Special purpose property inspection report' undertaken by Cromer Consulting Services dated 3 November 2011. This report includes many photographs of the damaged dwelling and associated structures. The applicant also tendered a summary of the compensation claim and associated invoices and quotes. Amongst other things, the respondents' material includes the affidavit of Mr Robertson, technical material on metal roofs, some correspondence between the parties, and an arborist's report prepared by Naturally Trees. 24The applicant acknowledged the water damage to the front bedroom. It appears that the property was re-let and tenanted between 2002 and 2011. At the end of that ten-year tenancy, the applicant became aware of the accumulated water damage to the property and substantial internal repairs were carried out. 25The applicant contends that the water damage to the interior of the house is a direct result of the build up of leaf litter on the roof, which prevented water moving down the roof into the guttering. They also contend that the excessive leaf drop limited the ability of the guttering to remove the water. When questioned about the frequency of roof cleaning, the family members representing the company stated they cleaned the roof maybe two or three times a year, which they considered should be more than necessary in ordinary circumstances. 26The respondents contend that the roof has not been installed at the required pitch to enable run-off. Similarly, they contend that there is a degree of incompatibility with some of the roofing materials, which could affect its performance. Technical data on roofing materials from Bluescope Lysaght was included in the respondents' material. They submit that there are gaps in the flashing that have allowed water to enter the dwelling. 27The applicant contested this assertion and some time was spent looking at the technical data sheets. 28In regards to the problems with the driveway, carport columns, verandah arch and steps, the applicant contends this damage is due to uplift caused by roots from the Camphor Laurel. The applicant submits that the former owner was a builder and that the damage was not evident when the property was purchased. The applicant relies on the report by Cromer Consulting as well as statements made by a property maintenance contractor who undertook the renovation work; that is, the damage is due to the tree. The author of that report is of the opinion that the majority of the damage is due to the tree. 29The respondents contend that the change in level of the driveway and the cracking near the patio is due to subsidence caused by water running off the house and directly onto the sandy soil (there being no guttering on the house). Similarly, they argue that subsidence because of flooding has also affected the brick columns supporting the carport and the brick archway on the verandah. They further contend that the carport and verandah supports were not built as approved in that the three brick columns closest to the fence are much closer. The approved plans indicate that there should have been five supports at least 900 mm from the fence with the one closest the street forming a brick arch connected to the house. The plans show that the columns were to be built on substantial footings. Similarly there should have been four support posts for the verandah in addition to the brick arch. The plans also show that the driveway was to be gravel and not concrete. 30The applicant claims that since 2003 Kamfam P/L advised the respondents that the tree was causing problems to its property. There is no actual evidence of any correspondence from the applicant in any of the exhibits. There is an email from the respondents to Mrs Fisher (as the applicant's representative) dated July 2004 in response to a letter from her regarding the tree dated 12 April 2004. The email does not make it clear as to whether the letter was in regard to specific damage or potential damage. The applicant disputes some of Ms Frampton's statements regarding the condition of the property. 31In regards to the injury claim, the applicant states that on two occasions a branch or branches fell onto a parked vehicle. The respondents state that there is no evidence this happened, they were not notified and in their experience, nobody has ever been injured by branches falling from the tree. 32In regards to the fence, the fence is a timber paling fence built in 1977. At the base of the tree, the palings were cut to accommodate the roots. There are several loose palings along its length and some slight displacement near the tree. Several posts appear to have decayed at their base. Several sections of fence at the rear of the property have collapsed due to pressure from vegetation on the respondents' property.

[6]

The internal damage 37The applicant contends that an unacceptable build up of leaves contributed to the internal damage to the house and that the respondents should compensate the company for the renovation work. In this regard, I make the following findings. 38While the applicant was aware of the water leakage in one of the bedrooms prior to 2002, it was not aware of the full extent of the problem until 2011. The photographs in the application indicate that the damage was quite extensive. It would seem to me that this represents a failure to adequately or regularly inspect the property and then to take action to manage or prevent the problem. Similarly, the applicant blames the leakage on what they say was an unacceptable level of leaf litter and other detritus on the roof. If this were in fact the cause of the problem, it would seem that clearing the flat roof only two to three times per year was insufficient. 39In regards to the technical specifications for metal roofing, I find that they are of little assistance as the relevant tables give no units (that is metres/ centimetres) for the length of roofing sheets. On the face of it, it was clear that there was some slight (probably compliant) fall but likewise, any debris left for too long could lead to the backing up of water. It was also clear that while some repairs and waterproofing had been carried out, prior to this there were clearly gaps in the roof and flashing that would have allowed penetration of water. 40While it is clear that debris has fallen onto the roof, I am not satisfied that this has caused the damage to the dwelling. Therefore I am not satisfied to the level required by s 10(2) that jurisdiction is engaged for this element of the claim. 41If I am wrong in this, as a matter of discretion, I would not make any orders requiring payment of compensation. Firstly, there is no evidence to indicate that the respondents were advised of the alleged water damage in any timely manner and so the claim for compensation. This has denied the respondents any opportunity to take action. Secondly, and more relevantly, the Court has a long-standing Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 in regards to the dropping of leaves etc. It states: 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. 42There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the applicant has convinced the Court of exceptional circumstances. Some recent examples include - Inbari & anor v Rankin [2010] NSWLEC 1236, Lazarus v Le [2010] NSWLEC 1118. 43There is nothing before me to conclude that the applicant's sitaution is exceptional enough to depart from that principle. 44Therefore no compensation will be ordered for any item in the claim that concerns the roof, guttering, electricity box and internal rennovations (kitchen, carpet, cork tiles/lino, sliding door, electrical wiring, ceiling repalcement and painting) claimed to have been damaged by water.

[8]

The carport, steps and brick arch 47Given the size of the exposed roots and their proximity to the most easterly of the brick columns closest to the fence, I am satisfied that the roots have contributed to the displacement of that column. That is, there is a nexus between the tree and the damage and therefore s 10(2) is satisfied for this element of the claim. While no roots were exposed, it is possible that the second column is likewise affected but less likely that the most distant column is significantly affected. 48However, as the jurisdiction is engaged for part of that structure, before any orders can be made under s 9, a number of discretionary factors must be considered under s 12 of the Act. Relevant to the brick columns:

The tree is on the respondents' property and close to the brick column (s 12(a));
Limited root pruning could be carried out to enable the erection of timber posts on concrete footings (to replace the brick columns) without causing undue harm to the stability or health of the tree (s 12(b2));
The tree provides the respondents with shade; it contributes to the amenity and natural landscape of the respondents' land; and given its size and prominence in the street, it has intrinsic value to public amenity (sections 12(b3)(e)(f));
It is clear from the evidence that the former owner of the applicant's property built the brick piers much closer to the fence line, and therefore the tree, than was approved. There is no evidence to prove whether the as-built footings are of the same depth and dimensions as shown on those plans. In regards to the end column to the west of the tree, it is possible that water pouring onto the base of that column has contributed to its instability. The structures are also about 35 years old and some wear and tear would be expected. Therefore, I consider that there are factors other than the tree that have contributed to the condition of the columns (s 12h(i)); 49After considering the discretionary matters in s 12 and in the light of the evidence of the root, I am satisfied that the respondents should make a contribution to the cost of replacing the brick columns. The brick columns are to be replaced by timber posts set on stirrups set in individual concrete footings. The applicant's quote for this work includes removing and replacing the roof of the carport. This seems excessive as it seems unusual that props could not support the roof while the columns were being removed and replaced. However the applicant, and should they wish, the respondents, is/are to obtain at least three quotes for the removal and replacement of the brick columns. Orders will be made for root pruning to be carried out by or under the supervision of an arborist if any excavations are required for the new footings. Any new footings are to be the minimum dimensions required to support the posts and the roof. If no new footings are required, any root within 100 mm of the existing footing can be cleanly cut by or under the supervision of an arborist engaged by the respondents. 50With respect to the steps and the brick arch, I am not satisfied that there is any evidence to prove to the level required by s 10(2) that the roots have caused the cracking and displacement of these structures. The approved plans show that there were to be at least five to seven posts/ columns to support the verandah and carport roof. My recollection is that there were three posts, including the one brick column, that support the verandah roof. Therefore, in the absence of any confirmation of the presence of roots sufficiently large to displace the corner of the patio, it is equally possible that there may be excessive loading on the single brick column. 51In any event, as s 10(2) is not satisfied in this regard, no orders will be made for any compensation for or repair of the steps and brick archway and this element of the application are dismissed.

[12]

Conclusions and orders 58On the evidence before me, I am not satisfied that the majority of the applicant's assertions have been proven to the degree of satisfaction required by s 10(2). 59However, as determined in Hinde v Anderson & anor [2009] NSWLEC 1148, if the circumstances change, a fresh application can be made. However, if the circumstances have not changed and an application is made, the proceedings may be dismissed - see McCallum v Riordan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093. 60Therefore the Orders of the Court are: (1)The application to remove the tree and its roots is dismissed. (2)The application for compensation of internal water damage to the applicant's dwelling, damage to the roof and guttering, damage to the driveway, damage to a brick archway and steps, and future costs associated with roof maintenance is dismissed. (3)Within 60 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist to raise the canopy of the tree to achieve a minimum distance of 2m above the roof of the applicant's carport and dwelling.[NB this does not include the removal of any major first order branches, large woody stems or secondary trunks.] In addition the arborist is to remove all remaining dead wood and stubs greater than 30 mm in diameter from all parts of the canopy that overhang the applicant's property. (4)The work in (3) is to be carried out in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. (5)The respondents are to give the applicant and their tenant at least two working days notice of the commencement of the work in (3). (6)The applicant and their tenant are to provide all necessary access for the work to be undertaken safely and efficiently. This includes allowing limited vehicular access (eg. light truck and chipper) onto the applicant's property. (7)Within 60 days of the date of these orders, the applicant is to obtain 3 written and itemised quotes for the removal and replacement of the three brick columns that support the northern side of the applicant's carport. The brick columns are to be replaced with timber posts in accordance with the description of the works given in [49] of this judgment. The respondent is also at liberty to obtain one or more quotes for the same work within the same time frame. Within the 60 days, the parties are to have exchanged quotes and agree on a contractor. Any works beyond the removal and replacement of the columns with posts are to be separately itemised on all quotes. (8)Within 120 days of the date of these orders, the works in (7) are to be completed or order (9) lapses. If the respondents consider it necessary, they are to engage and pay for an arborist, minimum AQF level 3, to supervise and or carry out any root pruning associated with the removal and replacement of the columns with posts. (9)The respondents are to reimburse the applicant 50% of the cost of the works in order (7) within 21 days of the receipt of a tax invoice for the completed work. (10)Within 60 days of the date of these orders, the respondents are to engage and pay for a fencing contractor/ or to undertake the work themselves, to reinstate the collapsed panels at the western end of the fence; and to repair and or replace the section of fence 2 m either side of the base of the tree. Any repairs to any other sections are to be agreed, separately itemised and the costs shared equally by the parties. (11)The respondents are to give the applicant and their tenant at least two working days notice of the commencement of the work in (10). (12)The applicant and their tenant are to provide all necessary access for the work to be undertaken safely and efficiently.

J Fakes 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: 06 June 2012

Kamfam Pty Ltd v Robertson

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Catchwords

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Catchwords

Judgment (12 paragraphs)

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Cases Cited (8)