Strata Plan 4834 v Zhang; Strata Plan 4834 v Huynh

Land and Environment Court (NSW)|2012-05-10

The application and relevant background 1ACTING COMMISSIONER: In suburban Allawah a residential unit building constructed during the 1970s has a set of four brick garages along its rear boundary. There is cracking to the brick walls of some of these garages and also to their concrete floors and to the concrete hardstand area in front of the garages. The Strata Plan (SP4834) claims that damage has been caused by two trees, one on each of two neighbouring properties. This judgment deals with both applications, which are made under the Trees (Disputes Between Neighbours) Act 2006 (the Act). 2The applicant seeks removal of both trees on the grounds that they have caused damage to property and that one of the trees drops seed pods that are itchy to residents of the units. They also seek compensation of $24,769 from both respondents as follows: $1,380 paid for concrete grinding carried out; $21,860 quoted for concrete replacement not yet carried out; $440 paid for legal advice; and $1,089 paid for an engineer's report. 3With regard to the last two items above, these are costs, which Commissioners do not have the power to award. To pursue those matters would require a Notice of Motion to be heard and determined by a Judge of the Court. 4The two respondents live on two properties to the northeast of the applicant. 5Mr Zhang enjoys the benefits of his tree but, in a letter to the Court dated 24 April 2012, has expressed some willingness for the tree to be removed, if done so at the applicant's expense. In that letter he also sought compensation for the cost of an engineer's report and for the loss of his time spent dealing with the matter, to a total of $1,800. As stated above, I do not have the power to award such costs. Mr Zhang also argues that the applicant has not provided evidence demonstrating that his tree has caused damage to their property. 6Ms Huynh enjoys the benefits of her tree and does not wish to remove it. She disputes that her tree is causing damage to the applicant's property. 7For the Court to make any orders, there are several jurisdictional tests that must be satisfied. Firstly, according to s 7 of the Act the tree must be situated on adjoining land. Secondly, the Court must be satisfied, according to s 10(2) of the Act, 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. If these tests are met, the Court is not obliged to make the orders sought by the applicant but may make orders described in s 9 as it thinks fit to remedy, restrain or prevent damage to property or to prevent injury. Before making any such orders the matters in s 12 of the Act must be considered.

Onsite view 8The hearing took place onsite, beginning with a view of the damage on the applicant's property followed by an inspection of the trees and land on the respondents' properties. The plan below indicates the location of the main features referred to in the judgment.

Damage to the applicant's property 9A single structure comprising four brick garages was built along the rear boundary of the applicant's property in the 1970s. The walls are of single brick construction. The rear wall of Garage 1 bulges inwards and has cracks. There is minimal cracking to the floor and other walls of Garage 1. We were informed there was no damage to Garage 2 and were then taken to Garage 4. There are cracks in the rear wall and floor of Garage 4. 10The hardstand area in front of the garages has cracks running through it. These have been ground down to remove trip hazards. The lip along the front of some garages has also been ground down in places to allow the garage doors to close properly.

Norfolk Island Hibiscus and the respondent's land (20070 of 2012) 11Mr Zhang's land is at a higher level than the applicant's land. Consequently, ground level along his rear boundary is at least half a metre above the base of the rear garage wall, with the soil being up against that wall. 12The Norfolk Island Hibiscus (Lagunaria patersonia) is a healthy mature tree. It is approximately 50 cm from the garage wall at ground level.

Camphor Laurel and the respondent's land (20071 of 2012) 13Ms Huynh's land is also at a higher level than the applicant's land so that ground level along her rear boundary is approximately a metre above the base of the rear garage wall. Soil on her land is against the garage wall. 14The Camphor Laurel (Cinnamomum camphora) is healthy and mature. There are two stems and it is difficult to determine if they are two stems of the one tree or if they are two separate trees that have grown against each other at ground level. Here it shall be regarded as a single tree. It is approximately 30 cm from the garage wall at ground level. The base of the tree also extends beyond the fence line separating the respondent's land from the land to her southeast, 23 Lancelot Street. The fence along that boundary is not exactly straight, so the exact alignment of the boundary is unclear; however it seems apparent that, at ground level, a small part of the Camphor Laurel is on another's land. The tree's crown is broad and spreads across two other properties in addition to the respondent's and applicant's: 23 Lancelot Street and 22 Illawarra Street. 15Ms Huynh's evidence includes a report on the Camphor Laurel by Frederick Janes, Angophora Consulting Arborist. Mr Janes describes the tree as having good health and good structural integrity. He estimates its age at 60 to 70 years and concludes that, since January 2011 when Ms Huynh purchased her property, the growth of the tree's root system "would have been very minimal adding very little extra pressure if any to the brick wall." He recommends retention of the tree.

Joint engineers' report 16The applicant and each of the respondents engaged separate engineers to assess the situation. At the preliminary hearing of 20 March 2012 the Court directed at 14(c) that "the party's individual engineering experts are to consult and prepare a joint report". That report, dated 13 April 2012, was prepared by Chris Morris of CPM Engineering (engaged by Mr Zhang), Curtis Payne of RHM Consultants (engaged by the applicant) and Vadim Topolinsky of T.O.P Consulting Group (engaged by Ms Huynh). The opening sentence of the report states: This report is a summation of our agreed opinions from our site meeting on 11 April 2012. 17The engineering experts state that the garages are of "single brick wall construction". 18They state that the concrete driveway and hardstand area "are moderately cracked". Regarding cracking of the garage floors they state: Some of the garage slabs are cracked, however the observed cracking is consistent with what would be expected given the concrete age and condition... 19Regarding the damage to garage walls, they state: Access was available to all garages, numbered 1 to 4 right to left. There is minor to moderate cracking in most of the rear brick walls, which are constructed in 110mm single skin masonry. Further, in investigating around the garages, they have been built below the natural ground level of the adjoining properties at the rear - meaning that the single brick rear walls are acting as retaining walls (around 1m deep for Garage 1 to around 0.5m deep for Garage 4). It is reasonable to assume that the soil level may have been increased by the neighbouring properties over time, particularly behind Garage 1, and this is a contributing factor. 20They conclude that: The rear single skin brick wall of the garage(s) is acting as a retaining wall, an action for which it does not have sufficient structural capacity and will certainly be under stresses it was not designed or constructed for... 21They further conclude that the cracking sustained by the garages and concrete is a result of several factors: the age and construction of the walls and concrete; influences from the sewer and stormwater easement adjacent to the rear boundary; and tree roots. 22It is important to note at this point that the engineers, when discussing 'trees' in the report, are referring to the two trees that are the subjects of the two applications. When they conclude that tree roots are a causal factor they write: c) Tree Roots. The two large trees are likely to have slowly been affecting the walls... 23The two following paragraphs are pertinent with regard to the level of contribution each tree has made to the damage. Given the age of the garages and trees, we conclude that the cracking in the garage walls would have commenced within the first say 20 years - before the trees were large enough to cause damage. Then in later years as the trees grew, they are likely to have added to the stresses on the walls and increased the crack widths. In proportioning cause, we agree that the trees are likely to be responsible for around 10 percent of the damage caused to the garage walls overall. Given the cracking is larger in Garage 1 - we agree that the Camphor Laurel is likely to be responsible for around 30 percent of the damage caused to the Garage 1 rear wall only. We find it difficult to attribute the cracking of the driveway slabs to the trees given their distance from the damaged concrete area and minor cracking of the garage slabs which are much closer. 24I accept the findings of the engineers' joint expert report and proceed on the basis that both trees have contributed to damage of the garage walls but are unlikely to have caused damage to the concrete driveway, hardstand area and garage floors. 25Mr Topolinsky was the only engineering expert present at the hearing, where he stated that the garage walls are not at risk of failing in the near future and that this is also the opinion of the other two experts. 26Mr Topolinsky's statements of opinion regarding the likelihood of the trees, and particularly the Camphor Laurel, contributing to further damage to the garage walls were less convincing. He suggested that although it was his opinion that the Camphor Laurel had contributed to damage, it is not contributing at present and is unlikely to contribute to further damage. This seems to be based on the notion that the tree is mature and the roots will not grow any larger. I do not accept that the roots of the tree will not grow larger.

Does the Court have jurisdiction? 27Turning to the jurisdictional tests, it is apparent that both trees are on land adjoining the applicant's. The Camphor Laurel may be partly on other land also, but is principally on Ms Huynh's land, and so is considered to be situated on her land according to s 4(3) of the Act. Another landowner may partly own the tree, and certainly has an interest in it and could be affected by any orders to interfere with the tree, and this is considered later. 28As I accept the findings of the engineers' joint expert report, I acknowledge that both trees have caused damage to the applicant's garage walls by contributing to that damage, and therefore one of the tests at s 10(2) is satisfied. Only one of the tests needs to be met for the Court to make orders, even if other tests put forward by the applicant are not met. Therefore the Court's jurisdiction is enlivened in regard to both applications and orders can be made as the Court thinks fit to remedy, restrain or prevent damage to property or to prevent injury. 29Before making any orders the Court must consider matters in s 12. I will relate the relevant matters to the various claims of damage and the orders sought.

Concrete grinding 30Firstly, the engineering experts could not confidently attribute the cracking of the concrete slabs to the trees. It is likely that other factors have caused that damage (s 12(h)(i)). 31Secondly, in 2011 the applicant engaged a contractor to grind concrete on the driveway and hardstand area to remove trip hazards, and at the front of some garages to allow the doors to close. The respondents submit that they were not informed of this and were not given the opportunity to assess the need for grinding nor to obtain quotes for works for which they are now being asked to pay (s 12(h)(ii)). 32Thirdly, even if the damage was attributable to the trees, most of that damage seems to have occurred prior to either respondent owning their property. In Kristeller v Matis [2012] NSWLEC 1027, Fakes C discussed this issue at [16] as follows. At 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. 33Similarly, former owners of the respondents' properties have not been joined in these proceedings, although the damage seems to have largely occurred prior to the respondents' ownership of their properties (s 12(j)). 34Considering all of the above, this part of the compensation claim is dismissed.

Future concrete replacement 35The applicant claims $21,860 for replacing the damaged concrete slabs. 36As above, the engineers could not confidently attribute such damage to the trees. 37Again, parties that owned the respondents' properties when the damage largely occurred have not been joined in these proceedings. 38The applicant claims the full amount from each respondent. Of some concern to me also is that, at the hearing, Ms Borg, agent for the applicant, stated that "...it is unlikely that the concrete replacement will be done" but that she received some advice from a lawyer (not paid for) that she should "... go for as much as you can get." 39Based on the above, this element of the application is dismissed. As a result compensation will not be ordered.

Risk of injury 40One of the grounds for seeking removal of the Norfolk Island Hibiscus is that its seed pods "are itchy to the residents" of units on the applicant's property. Direction (6) at the preliminary hearing of 20 March 2012 states: Note: When an application is made for an order to prevent injury to any person and the "injury" is an illness, allergy or similar medical condition, specific supplementary directions [see Schedule B] will be made concerning evidence in such cases. Supplementary Directions [Schedule B above]:

Further to direction 6 of the principal directions in this matter, the applicant is to provide, by the close of business on 17 April 2012 any statement of medical or arboricultural evidence and any supporting medical or arboricultural peer reviewed literature relied upon in support of a claim that a tree which is the subject of the application is a "likely cause of injury to any person";
Any expert evidence concerning matters contained in 1 above is to include acknowledgement that the expert has read and agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. 41Despite this direction, the applicant provided no evidence with regard to residents' allergic or other physical reactions to the pods of the Norfolk Island Hibiscus. Consequently the Court will not consider this justification for removal of the tree.

Damage to property 42The Court has accepted that the trees have contributed to damage of the garage walls. With this in mind the relevant matters in s 12 are: S 12(a). Both trees are situated close to the common boundary with the applicant's land. They are at some distance from the premises but in close proximity to the applicant's garages. S 12(b). Interference with the trees would require consent from Kogarah City Council under the Environmental Planning and Assessment Act 1979. Such consent has not been obtained. S 12(b1). Interference with the tree would not require approval under the Native Vegetation Act 2003. S 12(b2). Both trees could be pruned without adverse impacts but this would not prevent further root growth or the possibility of contribution to further damage. S 12(b3). Both trees contribute to the landscaping of the land on which they are situated. The trees provide shade and contribute to the properties' amenity. S 12(c). No evidence was provided that the trees have any historical, cultural, social or scientific value. S 12(d). The trees are not native and not part of the native ecosystem but both respondents say the trees attract birds. S 12(e). The trees contribute to the natural landscape and scenic value of the respondents' properties. S 12(f). The Camphor Laurel is a large tree that can be seen from the street and contributes to public amenity. S 12(g). Removal of the trees is unlikely to have a significant impact on soil stability or the water table. S 12(h)(i). Other factors have contributed to damage of the garage walls. The two trees' contribution has been estimated at 10% of overall damage; the Camphor Laurel's contribution to Garage 1 damage at about 30%. The main contributing factor is likely to be that the walls are acting as retaining walls when not built for this purpose. S 12(h)(ii). Apart from some correspondence no action has been taken to prevent or rectify damage to the garage walls. S12(i). The likelihood of injury is not a consideration in this matter. S 12(j). There are no other matters that I consider relevant.

Preventing further damage 43Having considered the matters above, the object of any orders as set out under s 9 of the Act is to "remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree the subject of the application concerned." Despite Mr Topolinsky's opinion expressed at the hearing, I do not accept that roots of the trees have stopped growing. And although root growth is but a minor contributing factor to the damage, it will nevertheless continue to contribute to damage in future. The walls may be inadequately constructed, drainage along the walls may be missing; but if the trees remain the damage may worsen. The engineering evidence is that the garage walls are not dangerous and if their condition doesn't worsen they will not need repair in the near future. Rebuilding the walls to an adequate and appropriate standard for the situation may allow the trees to remain, but would be significantly more expensive than tree removal and it is quite possible that, soon after any such works, the current owners of the trees, or subsequent owners, could have the trees removed. With this in mind I find that removal of both trees is the most suitable option.

Other property owners to be given opportunity to be heard 44Due to the spreading nature of the Camphor Laurel's crown, it is clear that any orders for its removal may require access to two other properties that it overhangs; properties whose owners are not party to these proceedings, One of those properties may even have a higher interest in the tree by virtue of being, at least minimally, part owners of the tree. These property owners have not had the opportunity to be heard on the issue of orders for removal of or other interference with the tree, or on the issue of access should such orders be made. It would be appropriate that they be provided with the opportunity to be heard before any orders are made.

Conclusions 45For reasons described earlier in this judgment, no orders for compensation will be made. 46As no medical or other evidence was provided regarding allergic or other reactions to seed pods of the Norfolk Island Hibiscus, this being the applicant's concern of risk of injury, the Court did not consider risk of injury when determining what orders to make for that tree. 47The Court relied on the evidence provided in the engineers' joint expert report. Considering the various factors contributing to damage of the applicant's garage walls, the likelihood of further damage occurring in the future, and the options available for preventing any further damage, removal of both trees seems the most appropriate action. Each respondent would bear the cost of removing their tree. 48The Camphor Laurel's crown overhangs two other properties whose owners were not joined to the proceedings. As the base of the tree appears to spread partly onto one of those properties, that property owner may also be a part owner of the tree. Both property owners deserve the opportunity to be heard on issues regarding the tree in general and specifically on issues regarding property access required, should orders be made for tree removal. 49Although the additional property owners mentioned above are not directly affected by orders for the Norfolk Island Hibiscus, as a matter of tidiness and efficiency the two applications will remain combined so that final orders for both applications will be made after the further hearing directed below.

Directions 50I therefore give the following directions. (1)The applicant is to serve, by personal service and by no later than 4.30pm on Thursday 21 June 2012: (a)a copy of this judgment; (b)the supplementary hearing notice direction provided with this judgment; (c)a copy of the Tree Dispute Application (20071 of 2012) concerning the Camphor Laurel located on 21A Lancelot Street, Allawah; (d)the Tree Dispute Claim Details (20071 of 2012); and (e)a copy of the respondent's solicitors' Notice of Appearance on the owners of 23 Lancelot Street and 22 Illawarra Street, Allawah. (2)The applicant is to file, by no later than 4.30pm on Thursday 28 June 2012, proof of service of the documents required by (1) on the owners of 23 Lancelot Street and 22 Illawarra Street, Allawah; (3)Any of the owners of 23 Lancelot Street and 22 Illawarra Street, Allawah who wish to be heard about the matters set out below are to file with the Court and serve on the applicant and the respondent to the application (20071 of 2012, through the respondent's solicitors, Maclarens Lawyers) any material concerning: (a)the application for removal of the Camphor Laurel located on 21A Lancelot Street, Allawah; (b)whether or not the Court should make any order for removal of or interference with the tree; and (c)the provision of access to that person's property in order to facilitate removal of or interference with the tree if such an order were to be made; (4)The matter is set down for a further hearing in Court at 3:00PM on Wednesday 11 July 2012 for the purpose of hearing from any of the owners of 23 Lancelot Street and 22 Illawarra Street, Allawah who wish to be heard. D Galwey Acting Commissioner of the Court

Amendments 26 July 2012 - Plan inserted Amended paragraphs: 8 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 July 2012

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Judgment (16 paragraphs)

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