Shields v Monhim & anor

Procedure 4The respondents did not attend the directions hearing or the on-site hearing. Following their non-attendance at the directions hearing, the Registry wrote to the respondents on 28 April 2014 advising them that the Court was satisfied they had been effectively served by the applicant. They were advised that in their absence the Court had made directions (attached to the letter) and the hearing was to take place, on site, on Friday 23 May 2014 at 9.30 am. The letter made it clear that should they fail to appear, the Court may make final orders in their absence and that those orders could include a requirement for the respondents to rectify any alleged damage. 5On the morning of the hearing, I observed a vehicle leaving the respondents' property some ten minutes or so before the hearing was to commence. The applicant later advised me that the person leaving was one of the respondents. I knocked on the front door on three occasions. Although I heard someone inside, nobody answered the door. 6I am satisfied that the respondents were fully aware of the proceedings, but elected not to appear. I am also satisfied that they were duly advised that the matter would proceed in their absence. Apart from the letter from the Court, it is clear from correspondence in the applicant's bundle of evidence that the respondents were on notice of the proceedings and of the basis of the application. 7I proceeded to hear and determine the matter in the absence of the respondents.

The Court's jurisdiction 8In applications under Part 2 of the Act, there are a number of jurisdictional tests that must be satisfied. To begin with, the tree must be wholly or substantially on the respondents' land and the damaged property must be on the applicant's land. 9The next relevant tests are in s 10. Section 10(1)(a) states: (1) The Court must not make an order under this Part unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, 10Section 10(2) contains the key tests; this section states: (2) The Court must not make an order under this Part unless it is satisfied that the tree concerned; (a) has caused, is causing, or is likely in the near future to cause, damage to the applicant's property, or (b) is likely to cause injury to any person. 11Section 10(2) must be applied to all of the trees about which an application is made. The 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...". 12If the tests in s 10 are met, the Court's powers to make orders under s 9 of the Act are engaged. In determining what, if any, orders should be made, the Court must consider a number of relevant discretionary matters in s 12 of the Act.

The trees 13The Camphor Laurel is a healthy, multi-trunked mature specimen growing on the western side of the respondents' property; part of the trunk traverses the common boundary. 14The trunk of the tree has displaced and damaged part of the dividing fence. It was clear that large woody roots from the tree had caused significant damage to the applicant's driveway and garage. Other damage is discussed elsewhere in this judgment. 15The bamboo is growing at the rear of the respondents' property. When viewed from over the fence, it appears as though the bamboo has been cut back and poisoned - this was confirmed by the applicant. The bamboo is at least 5-6m from the dividing fence.

Relevant background 16The applicant has owned his property for about 23 years and the respondents have always been his neighbours. 17In the very detailed and compressive collection of material attached to the application claim form, the applicant indicates that from about 1997 he began to have problems with the blocking of sewer and stormwater pipes. These pipes are about 4 metres from the Camphor Laurel. Between 1997 and 2004, at a cost of $1400.00, there were eight visits by plumbers to clear roots from the pipes. The applicant states that each time this happened he raised it with the respondents. The roots were from the Camphor Laurel. 18Given the cost of engaging plumbers, from July 2005 to February 2014, the applicant hired an electric eel and cleared the pipes on 15 occasions (receipts included in bundle). The hire costs total $995.38. 19In February this year, the applicant engaged a plumber to clear the pipes and inspect and film the pipes ($550.00). 20According to the application claim form, because of the on-going plumbing problems, in 2002, the applicants asked the respondents to remove and poison the tree. 21In 2009 the applicant contacted Auburn Council requesting an inspection of the tree and assistance in speaking with the respondents about the tree and the damage it was causing. Auburn Council obliged. 22In 2009, the applicant sought assistance from the Parramatta Community Justice Centre and subsequently sought mediation. However, this was rejected by the respondents. 23After having been shown the damage to the applicant's driveway, garage floor and garage doors, in August 2013, the respondents lodged an application to remove the tree with Auburn Council. Approval was granted. According to correspondence in the bundle, the respondents wanted the applicant to share the costs of removal, which he refused. 24In March 2014, the applicant filed the Class 2 application with the Court.

Preliminary findings 25Although the respondents' property was not entered, it was easy to see the trees over the dividing fence. In accordance with s 4(3) of the Act, I am satisfied that the trees are situated principally on the respondents' land. 26In regards to the bamboo, the applicant is concerned that unless it is managed, and a root barrier installed, the bamboo may invade his property and create a long-term maintenance issue. The applicant was unable to show me any damage that had been caused to his property. 27The guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in this matter. In regards to injury, the Court considers the risk posed by a tree in the foreseeable future based on the characteristics of the tree/s and the circumstances of the site apparent at the time of the hearing. While injury is not pressed for the bamboo, it is for the Camphor Laurel. 28I am satisfied that the applicant has made a reasonable effort to reach agreement with the respondents and s 10(1) is met. 29On the evidence, I am not satisfied that any elements of s 10(2) are met for the bamboo and therefore the Court has no jurisdiction to make any orders for any interference with it, and that part of the application is dismissed. 30However, given the reasons explained below, I am satisfied that the Camphor Laurel has caused damage to the applicant's property and as s 10(2) is met for this tree, I can consider the orders the applicant seeks. 31Given the proximity of the tree to the applicant's property and the obvious extent of root growth into that property, there is no means of abating the problem and preventing further damage other than by ordering the removal of the tree including the stump. This is to be at the respondents' expense. Although the tree makes a contribution to the amenity of the respondents' property and of the street, the extensive damage to the applicant's property outweighs the benefits of retaining the tree. 32The applicant seeks rectification of the damage he contends has been caused by the tree. He also seeks reimbursement for costs associated with ongoing problems associated with the tree. These issues are discussed below.

Sewer and stormwater 33The clay storm water and sewer pipes are located close to the eastern façade of the applicant's dwelling. The history of blockages is described above. There are many photographs in the application claim form illustrating the masses of roots extracted from the pipes. The most recent images taken from within the sewer show extensive root penetration even after clearing with an eel the previous day. 34In 2008, a blockage of the sewer caused an overflow from the relief gully which resulted in the flooding of the outdoor laundry and the area beneath the floor, with sewerage. This necessitated the removal and replacement of the floor at a cost of $293.00 in materials. 35Although the tree is to be removed, I accept that over the years, the tree roots have damaged the pipes and the most damaged sections should be replaced with PVC. As the respondents have been on notice about these problems for many years, the replacement of the pipes will be at the respondents' expense. 36The section of stormwater pipe from the down pipe on the south-eastern corner of the dwelling to the down pipe on the north-eastern corner of the dwelling is to be replaced. The remaining sections of old pipe are to be cleared of any residual roots. 37Similarly, the section of sewer pipe from the junction adjacent to the north-western corner of the garage, along the eastern façade of the applicant's dwelling to the north-eastern corner of the dwelling (not the verandah) is to be replaced and the remaining sections of old pipe to be cleared of residual roots. 38Any additional works requested by the applicant, such as risers and inspection points, are to be separately itemised and paid for by the applicant.

Concrete driveway 39The driveway comprises an apron near the front gate and then concrete wheel tracks to a concrete apron at the front of the garage. 40It is clear from the photographic evidence and from the site inspection that the roots from the Camphor Laurel have caused extensive damage to at least 10 metres of the driveway strips and the concrete apron adjoining the garage. The many repairs and clearing of the sewer and stormwater pipes have necessitated the removal of some sections of the westernmost driveway strip. 41Although the driveway pre-dates the applicant's purchase of his property and other sections show normal wear and tear, I am satisfied on the evidence that but for the damage caused by the tree, the southern section of driveway would not need replacing. Photographs taken in 2003 show that section of the driveway to be in good order. 42Orders will be made for the respondents to pay for the removal and replacement of the southern 10m of driveway, the concrete apron at the front of the garage and other sections of concrete along the eastern side of the applicant's dwelling. The area is to be levelled in order for new concrete wheel strips and apron to be installed.

Garage floor and doors 43The garage floor is lifted and cracked. A linear crack near the eastern side of the floor is consistent with the line of a large structural root. The shape and the "drummy" nature of the crack indicate more than a hypothetical possibility that this crack has been caused a root. 44I am satisfied on the evidence that the respondents should contribute an amount of 80% of the cost of removing and replacing an area of the concrete floor of the garage. The discounting is due to the age and normal wear and tear of the floor. While this was resisted by the applicant, I consider it reasonable in the circumstances. 45The area to be replaced extends approximately 3.5m from the edge of the garage opening for the width of the garage. Concreters advised the applicant that a 350mm wide strip of existing concrete should be retained along each side so that the new slab can be keyed into the old slab. 46The significant lifting of the concrete apron and front portion of the garage floor resulted in problems closing and securing the garage doors. The doors are timber in good order except for the fact that the lifting of the floor necessitated on-going trimming of the base. With the necessary replacement of the concrete apron and garage floor, there will be no way of securing the doors to the new floor. New doors will be required. The applicant has researched the options and a roller door is less expense than new timber doors.

House footings and repair of kitchen floor 47In March 2014 the applicant engaged Danmor Consulting Engineers to prepare a 'Structural Report'. The 'report' is essentially a catalogue of the damage and a collection of photographs illustrating the various elements of the applicant's claim...all completely obvious to anybody visiting the site. 48The engineer made no other investigations. Assumptions are made about roots lifting the floor structure leading to an uneven floor and the cracking of corner sections of cornices without any proof of root growth beneath the dwelling. Other assumptions are made about possible interactions between roots drying the soil thus further removing support under the building's footings without any investigation of the reactivity of the soil. 49In short, the report is of no assistance to anyone. 50I observed a degree of unevenness in the applicant's kitchen floor. I also saw the now repaired cracks in the cornices. However, I am not satisfied to the extent required by s 10(2) that the tree's roots have caused this damage and that any orders should be made requiring any rectification by the respondents. If there are any roots below this section of the house, once the tree is removed and a trench is dug to remove and install the new pipes, any roots that may be there will be cut and gradually disintegrate.

The fence 51The front section of the dividing fence between the parties' properties comprises a metal panels attached to a timber frame. The trunk of the Camphor Laurel has displaced and damaged the metal fence and the timber frame closest to the tree is broken. 52The applicant has sought further orders pursuant to s 13A of the Dividing Fences Act 1991. In this regard, the applicant seeks orders for the sharing of costs for the replacement of the dividing fence. The timber paling fence at the rear of the properties is in excess of 23 years old and is in a relatively dilapidated condition. The front section is as described in [51]. The applicant seeks orders for the rear portion to be replaced by another timber fence and the front portion by a more contemporary colour-bond fence. 53The Court's jurisdiction under s 13A of the Dividing Fences Act 1991 is engaged by virtue of satisfaction of s 10(2) where a respondent's tree has damaged part of the dividing fence. I propose to make the orders sought by the applicant. However, given the more pressing matters of replacing the sewer and storm water pipes, the time frame for fence replacement will be up to 12 months from the date of this judgment.

Compensation 54The application claim form summarises the elements of the applicant's claim for compensation. The claim totals $4,854.77. 55Commissioners of the Court do not have the jurisdiction to award costs associated with the making of an application, this includes the cost of expert witness reports. Therefore Items 6 and 7, a sum of $952.95 cannot be considered. However, should the applicant wish to claim these costs, he can file a Notice of Motion which will be heard by a Judge or Registrar of the Court. 56With respect to the other items in the claim, the Court has held that the Limitation Act 1969 [s 14(1)(d)] applies to compensation claims under the Trees Act. Therefore there is a six-year time limit, as from the date of the filing of the application, for compensation claims for past damage to an applicant's property (see Maroney v John [2008] NSWLEC 32 at paragraphs [32]-[33]). 57Therefore of Items 1 & 2- plumbing & repairs - the relevant amount, by my calculations is $1487.38. This includes $644.38 for the hire of electric eels between 6.6.2008 and 19.2.2014; $550 for the latest clearing and filming of the pipes on 21.2.14; and $293.00 for materials to repair the damage caused to the laundry floor as a consequence of the blocked sewer in 2008. 58I am not satisfied that the remaining items are reasonable, in particular item 4 a leaf blower and item 5 a sensor light. No claim has been made about leaves and given the Court's consistent upholding of the Tree Dispute Principle published in Barker v Kryiakides [2007] NSWLEC 292, my observation of the site is that such a claim would be unlikely to succeed. Although the paving is uneven, and there is a concern about tripping, I am not satisfied that this cost should be made against the respondents. 59Therefore I propose to make orders requiring the respondents to reimburse the applicant a sum of $1487.38 by 30.6.2014.

Conclusions and orders 60As stated earlier, I am satisfied that the respondents were fully aware of these proceedings but elected not to participate. From the evidence before me, the applicant has spent a considerable amount of money rectifying damage caused to his property by the Camphor Laurel, something the respondents were also aware of. 61I have been careful in my assessment of the damage and in the determination of the orders. The scheduling of the necessary works is intended to provide the parties with adequate time for compliance and to spread the respondents' costs without unduly extending the inevitable inconvenience the applicant will have to endure. 62Given the respondents' unwillingness to participate in these proceedings and their apparent reluctance to take any action to prevent further damage to the applicant's property, the applicant is concerned that the orders of the Court will not be complied with. 63Section 15 of the Act considers failure to comply with an order. Notes on 'Enforcement of judgments and orders of the Court' are provided on the Land and Environment Court's website. It is not the role of the Court to initiate enforcement of its orders. 64The Orders of the Court are: (1)The application is upheld in part. (2)By 27 June 2014, the respondents are to engage and pay for an AQF level 3 arborist, with proof of current, adequate and appropriate insurance cover, to remove the Camphor Laurel on the western side of 32 Asquith Street, Silverwater, to ground level. The roots are to be ground to a depth of 300mm below ground level to a distance 1m inside the applicant's property. The works are to include any necessary removal and reinstatement of the fence. The tree and its stump are to be removed by 30 June 2014. (3)The work in (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4)The applicant is to provide all necessary access for the purpose of quoting and the safe and efficient carrying out of the works in (2) on reasonable notice. (5)By 30 June 2014, the parties are to obtain at least two quotes each from licensed contractors for the following works: (a)The removal of concrete and the levelling of the southernmost 10m portion of the applicant's driveway, as measured from the edge of the garage. This includes the concrete apron at the front of the garage and the driveway wheel track slabs (from the end of the 5th slab when measured from the front gate, inclusive of the concrete apron at the front gate) (see Photograph 1 attached to this judgment). The width of the area to be cleared and levelled is from the boundary fence and the eastern façade of the applicant's dwelling. The depth of the levelling is to enable the replacement of the concrete wheel strips and apron. The quote must include a means of supporting the carport during the levelling works. The quote should also include a separate item for the removal of the area of garage floor described in paragraph [45]. (b)The removal and replacement of the stormwater and sewer pipes as described in paragraphs [36] and [37] of this judgment. The quotes are to include the clearing of the remaining sections of pipe by water-jetting or electric eel. Any additional items requested by the applicant are to be separately itemised and paid for by the applicant. (c)The relaying of the concrete wheel strips, concrete apron and strip of concrete adjoining the southern section of the eastern façade of the applicant's dwelling. The quote should include a separate item for the replacement of the garage floor. (d)Replacement of the garage doors with either timber to the same standard or a roller door. (e)The replacement of the dividing fence along the entire common boundary. The quotes should include three options: a costing for replacement with timber paling for the full length; colour bond for the full length; timber fencing to replace the current length of timber fence and colour bond to replace the current length of metal fence. (6)The applicant is to provide all necessary access for the purpose of quoting and the safe and efficient carrying out of the works in (5) on reasonable notice. (7)By 7 July 2014, the parties are to have exchanged quotes and agree on the cheapest quotes for each item. If there is no agreement or the respondents do not provide quotes, the cheapest quotes obtained by the applicant are to be the basis of engaging the nominated contractors. The applicant is to serve the respondents with his quotes by registered mail. (8)The respondents are to engage and pay for the nominated contractors to undertake the quoted works. The quoted works are to be completed by the following dates: (i)Removal of concrete and levelling (quote in order (5)(a)) by 1st August 2014. (ii)Removal and replacement of pipes (quote in order (5)(b)) by 29 August 2014. The applicant is to pay the contractor for any additional works. (iii)Replacement of concrete (quote in order (5)(c)) by 26 September 2014. (iv)Replacement of garage doors (quote in order (5)(d) by 10 October 2014. (v)Replacement of the dividing fence by 30 June 2015. (9)Within 21 days of the receipt of a tax invoice for the completed works in 8(iii), the applicant is to reimburse the respondents 20% of the cost of replacing the section of garage floor described in paragraph [45]. (10)The parties are to equally share the cost of the cheapest option for replacing the dividing fence. Should one of the parties request a more expense option, any additional cost beyond 50% of the cheapest option is to be paid by that party. On receipt of a tax invoice for the completed work, the applicant is to reimburse the respondents the agreed portion of the quote. (11)The respondents to reimburse the applicant a sum of $1487.38 by 30.6.2014.

J Fakes Commissioner of the Court PHOTOGRAPH 1 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: 26 May 2014