Spillane v Burgess

CASES CITED: Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280

APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENTS In person

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 SENIOR COMMISSIONER: This is an application made pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) by Mr and Mrs Spillane concerning a number of trees that are located on Mr and Mrs Burgess's property adjacent to their house.

2 The trees are located toward the rear of the two dwellings and are separated from the Spillane house by the width of the driveway on Mr and Mrs Spillane's property. The trees are a metre or so inside the fence - which, for the purposes of these proceedings and by agreement, we are treating as being the boundary between the properties (although we have no survey to that effect).

3 Mr and Mrs Spillane seek orders for the removal of all five of the Cypress Pines that are located in this part of the Burgess's property; for costs and for compensation for damage to their house and driveway.

4 Three of the pines are presently alive and two of them are dead. However, for the purposes of the Trees Act, dead trees still constitute trees. The trees appear to have been dead since sometime in 2003 and, although Mr and Mrs Burgess caused the Environment Protection Authority to undertake an investigation of the cause of death and the photographic evidence which we have is consistent with some form of herbicide impact on the trees, it is not necessary for us to reach any conclusions about or express any opinions on the cause of the death

5 It is, however, relevant, for the purposes of these proceedings, to note that those trees have been dead for some considerable period of time - a matter that is relevant when we consider what contribution the trees might have made to damage to the Spillane's property

6 A number of elements in the compensation claim pressed by Mr and Mrs Spillane are outside the Trees Act jurisdiction of the Court completely and a number of them are outside the jurisdiction of Commissioners of the Court when hearing and determining applications under the Trees Act.

7 Those matters that are expressly entirely outside the jurisdiction of the Court are a claim for loss of value to Mr and Mrs Spillane's property and personal compensation for time and stress incurred in preparing the application to the Court. Those claims will therefore be dismissed.

8 Other claims are ones that would fall under the conventional definition of "costs" - being claims for a report prepared by an arborist; a report prepared by Mr Hooley, a structural engineer (to whose report we will make further reference); postage; photocopying and the like. Those matters are properly "costs" of the proceedings and, if in light of our decision, Mr and Mrs Spillane wish to pursue those matters further, they will need to file a Notice of Motion in the proceedings and have those elements separately determined.

9 The substantive compensation elements sought relate to a claim for the replacement of a significant element of Mr and Mrs Spillane's driveway (being a claim for some $4000 of concreting work) and a claim for structural underpinning repairs (using a deep injection method) of some $6300. There is also a claim for repairs to the interior of the Spillanes' house. However, although specific directions were given on 19 May for the filing and serving of details of claims (including quotes for works) in the terms of directions 5, 6 and 7 of the Court's Standard Tree Dispute Directions, no quantified claim for repairs to the interior of the Spillanes' house was served or filed with the Court and, therefore, there is no proper evidentiary basis upon which we could make any award in that regard if we were minded to make some more general award.

10 Mr and Mrs Spillane have also raised the matter of the construction of a root barrier to prevent further damage by the trees (if we were minded not to order removal of the trees). As we are not minded to order removal of the trees (as we are satisfied that a root barrier can adequately address future problems), the appropriate orders - to which we will return - will be that a root barrier should be constructed on the Spillanes' property and that there should be, on the best estimate we are able to provide for it, an appropriate basis for reimbursement of the costs. We take this approach as it is not appropriate to require Mr and Mrs Burgess actually to undertake work on Mr and Mrs Spillanes' property

11 It is appropriate, at this point, to consider history relevant in the matter. Both dwellings were constructed in the early 1970s and both dwellings had rear additions made to them comparatively shortly thereafter by the parties. Neighbour relations have continued in an apparently generally harmonious basis between the parties until late 1999 when a dispute arose between them about the trees and the impact on the Spillanes' house - culminating in a mediation being undertaken at a Community Justice Centre resulting in an agreement in May 2000.

12 It is not necessary for us, for the purposes of these proceedings, to detail the nature of that agreement or any of the matters leading up to it (except to the extent that the uncontradicted evidence of the documents and testimony given informally, during the course of the site hearing, is that the first dispute between the parties about the trees occurred at some time in 1999 - that being some 25 years or so after the trees were planted and some 10 years prior to the date of this hearing).

13 That timing is a relevant matter, as discussed by Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280, where taking into account when the respondents in these proceedings were put on notice about the concerns of the applicants is appropriate for us to consider (as a consequence the provisions of s 12(h)(ii) of the Trees Act). Whether or not there was notice given to the owners of the trees of the concerns about the damage being caused by the trees to them thus giving the opportunity to rectify or remedy the problem.

14 We have had the advantage, in these proceedings, of a detailed report prepared by Mr Taylor, arborist of Australian Tree Consultants Pty Limited, who raises a number of matters. One of these we need to deal with and set aside immediately. In his discussion of the arboricultural issues, on p 9 of his report, Mr Taylor speculates that there was some anecdotal evidence that the area of the Spillanes' house may previously be have been used as a dam with that dam being filled prior to a subdivision of the area taking place. There is no evidence (of any persuasive nature) on this point. In these proceedings, on such an assertion, the burden of proof would fall on the person asserting that proposition - as a consequence, we set aside that proposition from any consideration

15 Mr Taylor's report correctly noted notes that there are two ways that trees might have caused the subsiding impacts are that are the subject of the claim on this side of the Spillanes' house. The first is some form of direct impact by the roots of the trees and the other is what he describes as an associated impact caused by soil subsidence arising from the extraction of moisture from the soil by the roots of the trees.

16 Mr and Mrs Spillane have dug a trench, using what appears to be a ditch-witch style of machine, along the portion of their property between the tracks of their driveway.

17 Mr and Mrs Burgess have hand excavated a trench along their side of the boundary - that boundary being defined by paling fence and by a concrete footing some 150 mm or so deep an on the Burgess's side of the fence. This trench shows that there is an extensive tree root pattern on the Burgess's side of the fence. There is a less significant but nonetheless some present and now severed pattern of tree roots on the Spillanes' side of the fence.

18 The pattern of the roots demonstrates confirmation of what was said by Mr Taylor about the rate at which there will be tapering-off of the roots and the reasonableness in assuming that there might not be any direct physical contact with the footings or other structural elements of the Spillanes' house.

19 This is also consistent with the evidence of Mr Hooley, the engineer for the Spillanes, who makes no assertion that there is some direct physical impact caused by roots on the Spillanes' house.

20 The analysis which Mr Taylor undertook concerned, amongst other things, past rainfall patterns and the fact that, in the Goulburn area, there has been a drought declaration since September 2002 or thereabouts. That there has been a significant change in the rainfall patterns over the period since that time is a matter for our consideration in any apportionment of the rate of damage that might have occurred to the Spillanes' house.

21 We now turn to the question of the extent of the damage to their property. We have had the opportunity of inspecting the exterior of both houses. The other evidence that we have of an engineering nature is from Mr and Mrs Burgess presenting a report prepared by Mr RD Morgan of Tarwind Pty Ltd to us. Despite the fact that the directions that were given prior to the hearing included a specific requirement that any such expert evidence prepared after the date of that direction should include the appropriate acknowledgements for expert witnesses pursuant to the Uniform Civil Procedure Rules 2005 and the expert witness code of conduct (as was specifically noted in those directions) there is no such acknowledgement contained in Mr Morgan's report. As, in our view, Mr Morgan's report is not in any significant extent inconsistent with the report that Mr Hooley has provided, we do not reject Mr Morgan's evidence.

22 However, to the extent that there are differences in their opinions, we give Mr Morgan's report little weight as a consequence of his failure to adopt and acknowledge his obligations to the Court.

23 We accept from Mr Hooley's report reinforced by his oral evidence to us (together with our inspection of the properties) that there has been a pair of unrelated but complimenting impacts on the two properties. The first is the general impact caused by the drought and by localised climatic conditions. The second is that this has, however, been exacerbated by the trees and their roots drawing water out of the soil in the area between the two houses.

24 We have seen evidence of the effect on both residences and, consistent with the opinion of Mr Hooley, we have seen that that tree impact of water extraction is along the edges of the two dwellings closest to the boundary between the two properties - and not significantly evidenced further away from that point - this being consistent with an additional impact of the general settling in the locality caused by the removal of water from the soils by the trees.

25 We have considered how we should address this. We have heard uncontradicted evidence from Mr Hooley that, on the assumption that there might have been a uniform rate of take-up of water from the soils by the trees (at least over the period since they were significantly established in the late 1970s or early 1980s), the impact up until the time Mr and Mrs Spillane drew their concerns to the attention of Mr and Mrs Burgess there might have been at some impact on the Spillanes's property but that that would be between zero and 10% of that (using his best professional endeavours without the ability to undertake detailed calculations or having any basis of such detailed calculations).

26 The rate of the extraction of the available water would have increased although the volume of what are extracted from the soil would have remained constant the consequence of that being is that the impact on the Spillanes' house would have accelerated and after a period of deceleration levelled off in the period since 2000. As discussed in Robson, that is a matter that we appropriately should take into account in these proceedings.

27 We have also had taken into account the fact that there is, at the rear of Mr and Mrs Spillane's property, a substantial Silver Birch tree at approximately the same distance from the rear of their property as the Cypress Pines are on the Burgess's property.

28 We do not consider it is possible to discount that there might be at least some impact caused by that tree's extraction of water from the soil (although Mrs Spillane expressed the opinion to us about the rate at which that tree might remove water from the soil, this was not expert evidence in these proceedings). We rely on our own experience and the general knowledge that we have of the extraction of water by tree roots to conclude that the Silver Birch itself must have also contributed to the removal of water and thus to the settlement in that corner of the Spillane's house.

29 We note, in passing, that Mr and Mrs Spillane had, some decades or so ago (but without precise details of the time that work undertaken), underpinning undertaken in the north-eastern corner of their house because they had had, on their uncontradicted evidence, a burst water pipe that had caused subsidence of that area. We regard therefore the question of the underpinning in that area as being neutral and neither contributing to or acting as any significant offset for the damage that has subsequently been occasioned.

30 Therefore, doing as best we able to do with the material that is presently before us, we have adopted a discount rate of 5% for the damage prior to the date when the matters were drawn to Burgess's attention.

31 We also consider it reasonable to adopt a discount rate for the impact of the Silver Birch on the rear of the property of 20% and that that should be applied to the quotation by the deep injection company, Mainmark Uretek, as the price that has been quoted for repair to the property. This would therefore come to an adjusted price for that of some $4300 on the discounted rate that we propose to adopt.

32 Mr Spillane, at the time of closing submissions, sought to indicate that he wished to explore a second option (postulated by Mr Hooley in his report) of some form of rehydration technology and that, at the end of that period being trialled (of some 12 months from now) if that did not work, the adoption of the Mainmark Uretek deep injection treatment.

33 It is inappropriate, in our view, to expose Mr and Mrs Burgess to the risk of double expenditure. If Mr and Mrs Spillane wish to pursue the alternative technology and then pursue the option of the deep injection technology, that is a matter for them but it is not a matter for which we propose to impose any additional financial burden on Mr and Mrs Burgess nor to provide for any additional period of time for that to be pursued.

34 We also consider that the installation of a root barrier is an appropriate response to prevent future damage being occasioned by the trees (rather than the removal of the trees) because, after consideration of appropriate matters in s 12 of the Trees Act, we are satisfied that they make a modest contribution to the amenity of the area and do not require removal to prevent future damage. There are also no safety reasons to require removal of the trees.

35 The orders of the Court, therefore, are as follows: 1. The application is granted to the extent provided in orders (2) to (11); 2. The applicants shall install a root barrier 900 mm below ground with the top of the barrier to be level with the level of the top of the adjacent driveway strips; 3. The root barrier shall extend from point commencing 2 m on the street side of the front of the applicants' house and finishing at a point 5 m to the rear of the rear wall of the house; 4. The location of the root barrier shall be between the driveway strips utilising the existing trench (extended and deepened as necessary); 5. The respondents shall reimburse the applicants a maximum of $1500 for installation of the root barrier within 60 days of the service on the respondents of receipted accounts for this work (this sum to include amounts on receipts from the digging of the trench prior to the date of these orders); 6. The respondents shall pay the applicants $4000 within 60 days of the service on the respondents of a receipted account of the completed work of deep foundation injection subject of a quotation from Mainmark Uretek; 7. If no receipted account pursuant to order (5) is served on the respondents within six months of the date of these orders, order (5) lapses; 8. If no receipted account pursuant to order (6) is served on the respondents within 12 months of the date of these orders, order (6) lapses; 9. The claim for loss of value to the applicants' property is dismissed; 10. The applicants' claim for time and stress is dismissed; and 11. The applicants' claim for damage to the driveway and to the interior of their property is dismissed.

Tim Moore Judy Fakes Senior Commissioner Acting Commissioner of the Court

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