Mahadik v Jones

[2024] NSWLEC 1411

Land and Environment Court (NSW)|2024-03-11

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Court

Land and Environment Court (NSW)

Decision date

2024-03-11

Source

Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

Background

COMMISSIONER: Mahesh Mahadik (the applicant) and Carol and Lynn Jones (the respondents) are neighbours in Ingleburn. The Joneses have lived at 23 Renault Place since building their dwelling in 1987 on the vacant lot they bought a year earlier. A mature grey ironbark (Eucalyptus paniculata) (the tree) stands in their yard next to their eastern boundary, as it did when they purchased their property. Until 2012, the adjoining property to their east (21A Renault Place) was vacant. Mr Mahadik bought 21A Renault Place in 2012 and has lived there since his dwelling was constructed in 2013. Branches and debris have fallen from the Joneses' ironbark onto Mr Mahadik's property, causing damage. Mr Mahadik has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) seeking orders for the Joneses to remove the tree. In his originating application, Mr Mahadik sought no compensation, but did seek the costs of his application.
A hearing was held onsite on 11 March 2024. The Court viewed the tree, both properties, and elements of property damage pointed out by Mr Mahadik. The Court heard evidence from Robert de Jong of Arbor Express, an arborist engaged by the Joneses to assess and report on the tree, and submissions from Mr Mahadik and from Mr Duffy, solicitor for the Joneses.
The originating application identified Carol Jones as the only respondent. Lynn Jones is Carol Jones' husband. Both Carol and Lynn Jones own their property and may be affected by any orders the Court makes. Lynn Jones is joined as the second respondent.
At the end of the onsite hearing, I reserved my decision.
In the days following the hearing, further branches fell from the tree. Mr Mahadik applied to present further evidence to the Court. The Joneses filed a Notice of Motion objecting to any further evidence. At a further hearing on 22 May 2024, I determined to reject the Joneses' Notice of Motion, and proceeded to hear further submissions from the parties regarding any new evidence. It is in the interest of the parties to have all current issues dealt with, rather than Mr Mahadik making a further application to the Court to present new evidence. I note here that the new evidence arose from a change in circumstances following the first hearing. If not for allowing the evidence as part of these proceedings, Mr Mahadik would be able to make a new application due to the change in circumstances: see Hinde v Anderson [2009] NSWLEC 1148. Considering any changes to the tree within these proceedings will avoid additional costs and time associated with a new application.

[4]

The tree

Before discussing the tree, I first consider the merits of the report by the arborist engaged by the Joneses.
The report by Mr de Jong is dated 4 March 2023 (Exhibit 3). Mr de Jong holds an AQF level 5 qualification in arboriculture. Although Mr de Jong agreed to be bound by the expert witness code of conduct (the code) at Schedule 7 to the Uniform Civil Procedure Rules 2005 (UCPR), this was not included within the report but was done via a separate note afterwards.
In an earlier version of this report, Mr de Jong recommended removal of deadwood from the tree and an aerial inspection of its crown. In this final version, completed following the aerial inspection, he recommended further weight-reduction of several branches.
This matter falls within the Court's Class 2 jurisdiction, in which the rules of evidence do not strictly apply. Nevertheless, if an expert agrees to be bound by the code, then the report is given certain weight that another report might not be given.
The belated acknowledgement of the code by an expert might demonstrate that the expert did not prepare the report with the code's requirements in mind. However, by acknowledging the code later, an expert may demonstrate that their report does comply with the code regardless that they did not acknowledge this within, and at the time of preparing, the report. As Black J observed in First Class Securities Pty Limited v R Neuhaus [2019] NSWSC 1261 (at [10], with my emphasis in bold): "On the other hand, in Welker v Rinehart (No 6) [2012] NSWSC 160, to which Mr Glasson draws attention, Ball J declined to make an order in respect of three expert reports, following a comprehensive review of the applicable authorities. His Honour noted that in that case the experts had done what is sought to be done here, by swearing a further affidavit indicating that they had read the Code and agreed to be bound by it and that, having read the Code, they confirmed that they held the opinions expressed in the report and did not wish to alter any of them. His Honour referred to several earlier authorities, and to the Court of Appeal's observations in Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Limited above. In particular, his Honour referred to the observation of Young JA (with whom Beazley JA and Handley AJA agreed) (at [63]) that: "The Court may consider that the assumed "real risk" [that the expert will have committed to a particular form of opinion from which he or she will not withdraw] is non-existent or minor. If so, in the case where an expert makes an initial report without having the Code in mind and then is shown the Code and swears that in fact he or she did abide by it and now affirms the original report, the evidence should be admitted. Again, if the court can see that he or she is not just rubber stamping the original report, the later report should be admitted into evidence.""
Mr de Jong has not complied with the code's requirements. He has not included details of all investigations. His final recommendation (in Section 8) begins: "Following the aerial inspection of the tree…" Yet in the Scope (in Section 1) he states: "The inspection does not include… aerial inspections." Mr de Jong undertook a risk assessment of the tree using the Quantified Tree Risk Assessment (QTRA) methodology. He did not clearly explain in the report critical assumptions on which he based his risk assessment. For instance, in answer to a question from me during his oral evidence at the hearing, Mr de Jong explained that he did not take into consideration the risk of branches falling and breaking tiles, as he was only assessing 'unacceptable' risk and, in his mind, small branches breaking tiles is 'acceptable'. He did not identify this assumption in his report.
Because Mr de Jong has not complied with the code, his belated acknowledgement of the code, and agreeing to be bound by it, appear more as 'just rubber stamping the original report' (see above at [18]). His report is therefore not given the weight of an expert report. In particular, while I rely on Mr de Jong's report for some general information about the tree, I cannot rely on his risk assessment. In this decision I rely on my own arboricultural expertise and experience, particularly in relation to tree risk.
The tree is a grey ironbark (Eucalyptus paniculata) approximately 20 metres tall. It stands in the Joneses' garden close to the common boundary shared with Mr Mahadik. Its broad crown extends over Mr Mahadik's property, including above his dwelling. Some dead branches remain in the crown despite recent pruning. Pruning done by the Joneses' contractor in March 2024 removed more branches over the Joneses' property than above Mr Mahadik's property. While the crown's form is typical for the species, some branches above Mr Mahadik's property appear overextended, with a higher likelihood of failure than other branches. I noted three branches that, in my opinion, are likely to fail within the next 12 months.
The tree appears healthy. I observed no fungal pathogen affecting the tree's overall condition, as was claimed by Mr Mahadik.

[5]

The tree has caused damage to the applicant's property

Mr Mahadik submitted that on 20 September 2023, a branch failed and damaged tiles on his dwelling's roof and part of the roofs structure. Other intermittent branch failures have damaged tiles.
Prior to the hearing, on 9 March 2024, the Joneses engaged contractors to prune the tree. A branch fell and hit Mr Mahadik's roof, damaging tiles. In an email to the Court on 10 March 2024 (Exhibit C), Mr Mahadik wrote: "I request that you issue an order against the neighbour to repair any damage caused to my roof as a result of their actions." The application was not amended to include any such orders and Mr Mahadik did not send the email to the Joneses. Attached to the email were photographs showing the branch and broken tiles on Mr Mahadik's roof.
Mr Mahadik provided photographs showing several examples of branches on his roof and broken roof tiles.
Roof tile damage resulted in water damage internally, to the ceiling. Mr Mahadik provided photographs showing water damage to the ceiling.
An insurance claim lodged by Mr Mahadik for water damage was denied. A letter from his insurer (in Exhibit B) noted maintenance issues at his property, including debris in roof gutters restricting water flow and causing water ingress. The insurer informed Mr Mahadik that he must replace broken tiles, remove all debris from roof gutters and valleys, and make his home watertight.
At question 14 of his application (Form H, Exhibit A) Mr Mahadik wrote: "I don't expect any compensation, but I would appreciate it if they could remove the tree. I've never asked my neighbour to pay because I value our good relationship."
In Mr Mahadik's Notice of Motion filed on 8 April 2024, seeking re-opening of the matter for further evidence, Mr Mahadik also sought orders of compensation of $4,210 for repairing damaged tiles ($310), roof guttering ($2,500), security cameras ($200) and internal items such as the ceiling, a mattress, a mattress cover and a bedsheet (together $1,200). A video included with his affidavit showed water ingress to his dwelling's ceiling.
Mr Mahadik also claims that debris from the tree has damaged his roof gutters and tainted water in his water tank.

[15]

Actions and omissions of the parties

The Jones engaged contractors to prune the tree in or around early 2014 and again in March 2024 after receiving a copy of Mr Mahadik's application and prior to the onsite hearing. I note that the recent pruning has removed more branches over the Joneses' property than over Mr Mahadik's property.
Further evidence provided by Mr Mahadik at the 22 May 2024 hearing showed broken tiles, which, according to Mr Mahadik, were broken when a branch fell on 13 March 2024, two days after the first hearing. He stated (in Exhibit D) that water damage occurred on 17 March 2024. Mr Mahadik was apparently aware of the broken tiles on 13 March 2024, so had not taken any action to prevent water ingress in the 3-4 days prior to water ingress. If I am to accept that the tree caused the water damage, I would not order compensation for that damage due to Mr Mahadik's failure to take reasonable action to prevent the damage.
Other elements of Mr Mahadik's belated compensation claim appear to apply to elements of earlier damage for which he had stated in his original application he did not seek any compensation.
For the reasons set out here, when I consider below the appropriate orders to make, I find it would not be appropriate to order compensation.
Mr Mahadik has claimed that debris from the tree collected in his gutters, resulting in water ingress to his dwelling and internal damage. The debris, he opined, damaged his gutters and contaminated water in his water tank. He worries that someone will slip on debris that accumulates on the ground. He complained that cleaning up the debris is onerous.
The Court established the following principle in Barker v Kyriakides [2007] NSWLEC 292 (at [20]): "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."
The Joneses' tree is nothing out of the ordinary. It sheds the usual amount of leaves, twigs, flowers, fruit and seeds that is expected for such a tree. The extent of property maintenance beneath the tree is nothing unusual. For these reasons, I find that any property damage or injury resulting from a lack of property maintenance is something that Mr Mahadik can prevent on his property.

Mahadik v Jones

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Judgment (35 paragraphs)

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