Kristeller v Matis

Relevant background 6The applicant has owned her property for approximately 20 years. According to a chronology of events compiled by Mr Christmas on the applicant's behalf, in March 2011, the applicant became aware of cracks to a low brick wall, a brick retaining wall, brick steps and a concrete path in the vicinity of an established Hoop Pine growing on the eastern side of the respondent's property. At that time, the respondent was not the owner of the property on which the tree was growing. 7On 13 April 2011, the applicant's solicitors wrote to the then owner of the property advising him of the damage and requesting him to remove the tree and to rectify the works outlined in a quotation from Allneeds Property Maintenance dated 3 April 2011 for a sum of between $8718 - $11,578 plus GST. 8On 19 April 2011, the former owner, by his statement a qualified civil engineer, responded questioning the assumption that the tree was the cause of the damage and proffering other possible causes. The letter makes an offer to remove the tree and the sharing of the costs of doing so. The letter also advises that the property had been recently sold. 9On 23 May 2011 the applicant wrote to the respondent's husband stating that it was believed that the property had been purchased by them and advised them of the issue with the trees and the damage. This was presumably before settlement. 10The respondent and her family moved into the property in June 2011. Further correspondence between the parties is included in the applicant's bundle of evidence; this includes an email from the applicant's solicitor to the respondent's husband pressing the applicant's desire to have the trees removed without delay and attaching a report from the applicant's structural engineer Dr Felix Barda. 11On 7 th November 2011, the respondent lodged an application with Woollahra Council for the removal of the tree. In material supplied by Woollahra Council's Team Leader - Trees and Landscape, Mr Andrew Simpson, the tree was inspected on 22 November, the Council received the Tree Dispute application on 24 November, and the approval was granted on 14 December after a period of notification to adjacent properties. 12The trees were removed on 31 January 2012 but the stumps remain.

Jurisdiction 13In applications made under Part 2 of the Act, the key jurisdictional tests are found in s 10(2). Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that any tree subject to the application has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. Since the review of the Act in 2010, the Court has jurisdiction to hear matters in which trees have been removed, however, enough of the trees remain to satisfy the Court as to their location in relation to the areas of alleged damage. 14In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29, Craig J at [29] cites Preston CJ in Robson v Leischke [2008] NSWLEC 152, who makes it clear that the Court must be satisfied as to the existence of a causal connection between a tree that is the subject of an application and the damage or injury claimed by an applicant. The tree need only be a cause to engage the jurisdiction. 15Further in Smith & Hannaford , Craig J considers the level of satisfaction required by the Court of the causal nexus between a tree and any damage. At [62] Craig J states that "something more than a theoretical possibility is required in order to engage the power under the [Trees Act]". The level of confidence required is at least, the "bare preponderance of probability". 16At the commencement of the hearing I drew the parties' attention to a number of cases where claims for compensation had been made against recent owners of a property subject to an application under the Trees Act. These include Smith & Hannaford , as well as Thornberry & anor v Packer & anor [2010] NSWLEC 1069 at [5] and Cincotta v Huang & ors [2011] NSWLEC 1086. The Court has held that an application for compensation for damage to property must be made against the owner of the tree at the time the damage occurred; this may not be the current owner of the tree. If a property has changed hands in the period over which the damage is said to have occurred, an applicant may make an application against the current owner/s but the former owner/s may be joined in the proceedings. If the current owner is the respondent, any orders for compensation will be based on the incremental increase of the damage that occurred during their period of ownership. The compensation, if awarded, is likely to be apportioned accordingly. In the matter before me, the previous owners have not been joined. 17As a consequence, the Court must be satisfied not only of the causal nexus between the tree and the damage, but of the extent of the damage that may have developed since June 2011 to the end of January 2012, that is, from the time the respondent settled the property to the time the tree was removed - a maximum period of eight months. Mr Christmas contends that as the respondent was notified in May, the period should be longer.

The hearing and findings on causation 18The stumps of the trees were inspected. Tree 2, was a small diameter tree of a size not requiring permission under council's Tree Preservation Order. No issues of current damage were pressed about this tree however, concerns were raised about future damage that may have occurred. From the evidence of the small size of the stump, it is highly unlikely that any orders would have been made for any interference with this tree as the Court has consistently upheld the guidance decision in Yang v Scerri [2007] NSWLEC 592, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. 19The damage alleged to have been caused by Tree 1, the larger of the two trees is: the displacement and cracking of a section of low brick wall between the properties (on top of which is a panel of timber lattice); the displacement of sections of a concrete path on the applicant's side immediately adjacent to the wall; the cracking and displacement of a brick retaining wall some distance below the tree; and the cracking and fretting of bricks on the top of the retaining wall that forms the top of several steps. 20The size of the stump as well as the evidence of the applicant and a nearby neighbour Mr Taylor, suggest that the tree was a mature specimen. Growth rings were evident and would suggest that annual incremental growth in more recent years has been no more than 10mm or so. 21Dr Barda was on site to provide assistance to the Court. The photographs he took in (presumably) late September 2011 were used to assess any subsequent movement that may have occurred in each of the elements in contention. The basis of Dr Barda's report is that the damage to the boundary wall, retaining wall and path is due to root growth and that the resulting damage to the path is a dangerous trip hazard. When questioned as to whether he carried out any excavations to confirm the presence of roots he said he did not as it would have been too difficult. 22With respect to the low brick boundary wall, Dr Barda contends the bowing and cracking has been caused by the tree. Whilst no roots were exposed, I am prepared to accept, on the bare preponderance of probability, that the tree has caused the displacement, and to that end, s 10(2) is satisfied for that element of the application. The question of how much damage has occurred in the eight-month period is unclear however, there do appear to be more cracks than shown in the photographs. Given the extent of the bowing of the wall, I am very surprised that it was only noticed by the applicant in March 2011 as it would appear to something that would occur gradually and not suddenly. 23The section of lattice on top of the wall did not appear to be damaged. There may be a slight displacement of one of the posts but Dr Barda's report made no mention of it and nothing was pressed at the hearing. 24In regards to the footpath, it is the second slab to the north of the retaining wall that is most in contention. It would appear that the bowing of the boundary wall has caused the minor sideways displacement of this section of concrete path. However, the slab appears to have subsided significantly on its eastern edge. This has resulted in exposed edges on the eastern sides of the adjoining sections of path, which to some extent, could be considered to be trip hazards. The subsidence on the south-eastern corner of the slab seems to have increased by 10-20mm since the photographs were taken. Again I am surprised that this was not noticed earlier than March 2011. 25The respondent contests the cause of the subsidence. Apart from no roots being observed, it was pointed out that the path is on a slope and is laid on the soil beneath which is sand. Apart from recent heavy rainfall, the applicant regularly hoses the area and workers relocating a gas service have also hosed the area. The suggestion being that the underlying sandy soil has been washed away from the edge of the slab leading to the subsidence. The applicant contends that during the time they have resided there, there has been a lot of rain and regular cleaning. 26On the evidence before me, I am not satisfied to the level required by the Act that the tree has caused anything other than the slight sideways displacement of the slab. It would appear from the gap beneath the slab that sand has been washed away. I am not satisfied that the increase in the level of subsidence and the resulting trip hazard since the respondent took ownership of her property, that the tree is the cause. 27With respect to the brick retaining wall, Dr Barda contends that the cracking is due to extra loading placed upon it by the roots of the tree. He considers there can be no other explanation. He says that the absence of weep holes in the wall is not an issue. 28Given the distance of the stump from the retaining wall and the absence of any proof of root growth behind the wall, I cannot be satisfied that the cracking of the wall is due to the tree and not some other cause including soil and water movement, adequacy of the structure and any damage that may have been occasioned to it by other activities. It is unsubstantiated speculation that the wall has been damaged by the tree and therefore s 10(2) is not satisfied with respect to this element of the application. 29Similarly, I am not satisfied that the fretting and cracking of several bricks on the top of the retaining wall that form the top of three brick steps is in any proven way caused by the roots of Tree 1. It would seem to be that a reasonable explanation could be that wear and tear associated with the normal use of the stairs over time has caused the degradation of the bricks. I note similar cracking of at least two bricks at the eastern end of the wall. 30Therefore in summary, I am prepared to accept that the tree has caused damage to the low brick boundary wall and the slight sideways displacement of one section of concrete path. Therefore s 10(2) is satisfied for these elements of the application, and the Court may consider what orders, if necessary should be made. I am not satisfied to the level required by the Act of the causal nexus between the tree and the subsidence of the path, the cracking and slight displacement of the brick retaining wall, the condition of the bricks along the top of the wall that form a step, and any alleged damage to the section of timber lattice fence. Therefore, the orders sought for compensation of these elements of the application are dismissed.

Apportionment of compensation 31The quote provided by Allneeds does not itemise each element of work with the exception of a sum of $3600 +GST for a new lattice fence and support posts. Nor does it specify the length of wall or pathway to be removed and replaced. However, given the findings summarised in [30], the Allneeds quotation is redundant. 32The question still to be considered is what proportion, if anything, of the costs of rectification of the brick boundary wall and the concrete slab should be borne by the respondent. 33In regards to the sideways displacement of the path, I am not satisfied on the evidence of the photographs included in Dr Barda's report that there has been any discernable change. Therefore, I do not consider the respondent should bear any cost of rectifying that displacement. 34With respect to the wall, it does appear that the bricks have cracked in the time since the photographs were taken and the hearing. Any rectification of the displacement would necessitate the dismantling and rebuilding of the wall so the fact that additional cracking has occurred would not substantially increase the cost of its rectification. However, some further degradation has occurred but given the relatively short period that the respondent has owned her property and the relatively limited growth a mature tree a mature tree could be expected to make in such a brief time, I am limiting the respondent's contribution to 10% of the cost of rebuilding of the displaced one section of the low brick dividing wall. 35Therefore the Orders of the Court are: (1)The application is upheld in part. (2)Within 30 days of the date of these orders, the applicant is to obtain two quotes for the removal and replacement of the one displaced section of low brick dividing wall between the parties' properties. In that time, should she wish to, the respondent is to obtain one quote. Copies of the quotes are to be given to each party. If the respondent does not wish to obtain a quote she must advise the applicant in writing within that timeframe. The quotes are to clearly state the scope of the works including, but not limited to, the removal and replacement of the existing lattice panel, any excavation, length of wall and so on. (3)Within 7 days of the receipt of all quotes, the parties are to agree on the choice of contractor. If no agreement is reached, the cheapest quote must be selected. (4)The applicant is to engage and pay for the nominated contractor. (5)The respondent is to allow access for quoting and the carrying out of the works on two working days notice; verbal notice is sufficient. (6)The works are to be completed within 90 days of the date of these orders otherwise order 7 lapses. (7)The respondent is to pay the applicant 10% of the costs of the work in order (2) within 21 days of a receipt of a tax invoice for the completed works.

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: 17 February 2012