Pearson v Humphrey & anor

The assessment process 8In applications under Part 2 of the Act, the key jurisdictional tests are found in s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned 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. 9The 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...". 10If any of the tests in s 10(2) are met for either of the trees the subject of the application, the Court's powers under s 9 of the Act, to make any orders it thinks fit, are engaged. This requires the consideration of a number of discretionary matters in s 12 of the Act.

Relevant background 11The application and claim form contain number of building reports and a quote from a builder. Material filed by the respondents included additional material and alternative quotes. The material filed by the parties contains considerable detail in regards to their actions; the key events are described below. 12The applicant purchased her circa 1925 property in 1993. The original three bedroom dwelling included an attached laundry and toilet at the rear. The footings for the dwelling are brick piers and perimeter brick wall; the rear toilet and laundry is slab on ground. 13In 2004/ 2005, approved extensions were carried out. These comprised a carport and a tiled living room at the rear of the dwelling that incorporated the original toilet and laundry into the dwelling. The yard adjoining the rear of the dwelling was landscaped and drained. 14In 2007 a new dividing fence was erected between the parties' properties. 15The respondents purchased their property in late 2011/ early 2012. 16In or about late March 2013, the applicant noticed cracks in a number of living room tiles at the base of the laundry step. The tiles sounded 'drummy' when tapped. 17In attempting to identify the cause of the cracking, the applicant excavated concrete and soil around the perimeter of the toilet and laundry walls and the associated sewer pipe. This exposed a number of fibrous roots. 18Concerned by the number of roots, the applicant removed an edge tile and a section of the skirting board from the living room between the toilet and laundry steps. This revealed extensive growth of roots - identified by an arborist (Tony) from Ability Tree Services as being consistent with those of the nearby Date Palm. 19That arborist advised the applicant that it would cost about $3000-$5000 to remove the palm and that a crane would be required. The crane would need to be located on the applicant's driveway and the applicant would have to indemnify the arborist against any damage that may occur to her dwelling when the palm was craned over her house. 20In April 2013, the applicant engaged a building consultant, Mr Allan Faugeras and Mr Rodney Moore, a building contractor, to inspect and report on the damage. 21Mr Faugeras' report states that the dwelling was generally found to be in good, sound condition. A deflection in the rear exterior brick wall has resulted in two inverted cracks above what he determines to be the primary "invasion" point of the "offending" tree roots. These are presumably the stepped cracks in the brickwork towards the top of the toilet wall. He recommends consideration be given to underpinning the rear 'pavement' slab. 22Mr Faugeras also notes "additional damage/ invasion" to the earthenware sewer pipes and recommends replacement with PVC pipes. 23In regards to the tiles, he recommends removing the tree roots and re-tiling. 24Mr Faugeras strongly recommends the removal of the tree. In addition he recommends the construction of a trench between the tree and the dwelling to "prevent the sudden removal of the founding material" when the tree stump is pulled out. This opinion is presumably based on his interpretation of the proposed method of removal of the tree...seemingly like a weed being pulled from the ground - roots and all. 25Based on Mr Faugeras' report, Mr Moore prepared a detailed quote. The quote includes $10, 568 for underpinning, repair of brickwork and repainting; $7,260 for replacement of sewer pipes; $14,625 for removal and replacement of tiles - laundry, toilet and living room; and $4,965 for a 6m long trench between the tree and the dwelling. 26In May 2013 the respondents engaged Mr Denis Barnett, building consultant, to inspect the applicant's property and review Mr Faugeras' report. Mr Barnett's report post-dates the excavations carried out by the applicant. 27Mr Barnett concludes that the damage to the applicant's property did not result from the migration of the Phoenix Palm root system. He considers the damage is due to inadequate site excavation for the new slab/ not in accordance with the Building Code of Australia; poor drainage resulting from the directing of roof water onto the ground near the wall; unsatisfactory construction methods of the laundry and toilet floor slabs - no edge beam, and movement of the moderately reactive clay soil under the slabs which has caused cracking and separation of the walls and floor tiles. He considers that these gaps have provided a void for the migration of the palm roots. 28In a second report, Mr Barnett estimates the necessary works would cost about $6,125 in total (underpinning, repair of bricks, repainting and removal and replacement of tiles).

Evidence on site 29As is the usual practice in these matters, and in order to ensure the Court's jurisdiction, the hearing commenced with an inspection of the trees on the respondents' property. The trees are located on the respondents' land and the species are as identified in the application. 30The respondents stated that another arborist advised that the palm could be felled into the respondents' garden with the lower part of the trunk left to decompose. The respondents plan to remove the fronds and severed sections themselves. The Photinia will be dismantled and the stump ground. 31On the applicant's land, the fence was observed to be in good order with only a very minor deflection. It was agreed that should any damage be caused to the fence during the removal of the palm, the arborist would be responsible for the repair of any damage that may occur. 32The area at the base of the external walls of the laundry and toilet, including around the exposed sewer pipe, was inspected. As the excavation had occurred some months before the hearing, no fresh roots were seen. There was some dislodgment of soil at the base of the wall. 33The applicant confirmed that while the sewer had been blocked in the past, it was not currently blocked and Mr Faugeras did not inspect the internal condition of the pipes. 34Internally, the roots of the palm were clearly visible along the wall and the top of the floor in the north-western corner of the living room between the steps to the toilet and the laundry. Other nearby tiles were found to be drummy. The roots could be seen disappearing behind the laundry door architrave but the architrave appeared undamaged. 35The floor tiles in the laundry and toilet were found to be in good order. A section of fibrous sheeting wall had been removed from the laundry - no roots were found behind it. 36In regards to the Photinia, some surface roots from it were observed in the vicinity of the concrete plinth beneath the hot water service but no damage had occurred.

Findings 37Despite Mr Barnett's assertions, I am satisfied that the roots from the palm have caused damage to the floor tiles in the applicant's living room and at the base of the laundry step. The relevant consent authority approved the living room slab and there is no evidence to suggest that it is in any way faulty. I also accept the evidence that the spikes on the palm fronds have caused injury and could continue to do so. Therefore s 10(2) is satisfied for the palm. 38In regards to what orders should be made, while a root barrier could be installed to prevent further incursions into the applicant's property, and orders could be made for ongoing removal of dead fronds, the respondents have agreed to remove the palm. While the palm contributes to the scenic value of the respondents' property, I agree that removal is a practical solution in the circumstances. 39Once the palm is felled as proposed, the roots will gradually die and disintegrate. As the roots will be left in situ, there is no need for any unnecessary trenching between the tree and the dwelling. 40Orders will be made to ensure the work is done safely and to a professional standard. 41With respect to the compensation for rectification of damage alleged to have been caused by the palm, I am not satisfied that all elements of the claim are valid. 42As stated above, the trench is unnecessary. As the sewer pipe is not blocked and the palm will be removed, the replacement of the pipes is not justified. I am not persuaded by any of the reports that any underpinning is required or that the respondents should pay for any reinstatement of the concrete surrounds the applicant removed when investigating the problem. 43I accept Mr Barnett's classification of the soils as moderately reactive. With the expertise I bring to the Court I accept that while roots may have exacerbated the extraction of water from reactive soils, the normal wetting and drying and therefore swelling and shrinking of reactive soils, particularly under exposed north-western corners of buildings, can result in the cracking of brickwork. I am not satisfied on the evidence that any orders should be made for any rectification of those cracks at the respondents' expense. 44As stated above, the floor tiles in the laundry and toilet are in good order. While on aesthetic grounds, the applicant is keen to have the same tiles throughout the laundry, toilet and living room, I find it difficult to justify the removal of perfectly sound and functional tiles from those rooms when no damage has been caused to them by the respondents' palm. 45In the process of discovering the cause of the cracked tiles. The applicant removed part of a skirting board and dislodged some plaster. The roots did not cause this damage and therefore rectification of that damage at the respondents' expense would be unreasonable. 46The respondents have owned their property for less than two years, however absent any evidence as to how much palm roots can be expected to have grown in that period, I can see no reasonable alternative than to require the respondents to pay for the removal and replacement of the tiles in the applicant's living room. Unfortunately, it appears that the tile is no longer available and the entire floor will have to be redone with new tiles. It was agreed that if the original tiles can be sourced, only the damaged area would be retiled. 47The applicant is concerned about the potential for pests to use the roots to access parts of the dwelling. The Trees Act does not cover damage that may be caused by insects or other organisms that may be attracted to a tree or use it for habitat (Robson v Leischke [2008] NSWLEC 152 at [189]). 48In regards to the Photinia, I am not satisfied on the evidence that it has caused, is causing or could in the near future cause damage to the applicant's property or injury to any person. 49The near future has been determined to be a period of 12 months from the time of the hearing (Yang v Scerri [2007] NSWLEC 592). While there is a surface root near the base of the water heater, this could be cut without causing any harm to the tree. In regards to the proximity of foliage to the chimney and the potential for fire, the court has no jurisdiction to make any orders, as the tree would not be the cause of the fire. 50Therefore, the Court has no jurisdiction to make any orders for the removal of the Photinia but I note the respondents' intentions to remove it.

Orders 51Therefore on the basis of the foregoing, the Orders of the Court are: (1)The application is upheld in part. (2)Within 30 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to fell or dismantle the Phoenix canariensis into the respondents' property without causing any damage to the dividing fence. (3)The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4)Should it be required, the applicant is to provide, on reasonable notice, all necessary access for the work in (2) to be carried out safely and efficiently. (5)The parties are to obtain quotes (ideally at least three in total) for the removal and replacement of all tiles in the living room of the applicant's dwelling. The replacement tiles are to be of comparative quality. Should matching tiles be found, the work is to be limited to the north-western portion of the room. (6)The work in (5) is to be carried out in accordance with industry best practice and with any relevant industry standards by a licensed and appropriately insured contractor. (7)The applicant is to provide all access on reasonable notice for the purpose of quoting. (8)Once the parties have agreed on the nominated contractor, the applicant is to engage that contractor and the respondents are to pay the contractor any necessary deposit. (9)The work is to be completed within 6 months of the date of these orders and the applicant is to pay the contractor the remaining balance of the quoted price. (10)The respondents are to reimburse the applicant the amount of the remaining balance within 21 days of the receipt of a tax invoice for the completed works.

Judy 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: 25 October 2013