Land and Environment Court New South Wales

• Medium Neutral Citation: Kunz v Palgi [2013] NSWLEC 1015
• Hearing dates: 17 January 2013
• Decision date: 17 January 2013
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

The application is dismissed

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to property; tree not shown to be cause of damage; application dismissed
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: APPLICANT; Walter Kunz; RESPONDENT; Silva Palgi
• Representation: APPLICANT; Ugo Parente (Marsdens Law Group); RESPONDENT; Lynne Worrall (Solicitor)
• File Number(s): 20994 of 2012

Judgment

1 ACTING COMMISSIONER: Approximately seven years ago Mr Walter Kunz first noticed that a section of concrete paving near a rear corner of his Lansvale property was cracked and lifting. In February 2012 he received advice from an arborist that the damage was caused by roots of a neighbouring tree. He has applied to the Court under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) seeking orders for the owner of the tree to pay for the its removal, poisoning of roots, compensation for the cost of repairing the damaged concrete and also for the applicant's legal costs.

2 Regarding the last matter, Commissioners do not have the power to award costs, so that would require a Notice of Motion to be heard by a Judge. For the Court to make the other orders I must first be satisfied that the neighbour's tree has caused the damage. I must then consider a range of matters set in s 12 of the Act before making any orders as I see fit according to s 9.

3 Mrs Palgi owns the neighbouring property on which stands the dead trunk of the tree that Mr Kunz says has caused the damage. She refutes that the damage is caused by her tree.

4 The onsite hearing allowed a view of the paving, the tree and other relevant evidence from within both properties. Both parties were represented by solicitors and Mr Tarmo Rae, Mrs Palgi's son, provided additional information on behalf of his mother.

The situation and its background

5 Mr Kunz says the damage was caused by roots of the Camphor Laurel tree adjacent to the common boundary between the two properties. According to Ms Palgi the tree was self-sown. Approximately five years ago she had branches cut from the tree and the tree was poisoned, so that all that remains is a dead stump about eight metres tall. According to Mr Kunz, suckers continued to grow from the roots after that and he regularly poisoned these on his property. The last time he did this was almost one year ago. There were no suckers present at the time of the hearing.

6 Mr Kunz pointed out the section of concrete that he says has been damaged. It is about 25 years old. Its edge is above the adjacent area of gravel and a separate stepping stone. A crack runs across the paving and ends at the down pipe on the rear wall of his dwelling. Mr Kunz says the raised edge of the concrete creates a trip hazard. Ms Worrall, on behalf of Mrs Palgi, pointed out that there are cracks in the concrete driveway at the front of the property and in driveways and concrete on other properties, including her own. These cracks are additional to the straight joins in Mr Kunz's concrete that he says were part of the construction. Ms Worrall pointed out that the soil is a reactive clay and that the construction method of the concrete may be inadequate for the conditions.

Has the tree caused the damage?

7 I accept that the lifting of the concrete is "damage", however minor that damage may be. The persuasive burden, to satisfy the Court that the tree has caused this damage, lies with the applicant. For this purpose, Mr Kunz relies on a report by Mr Wayne Back, of Above All Tree Services, dated 5 February 2012. The report, which takes the form of a letter to the applicant, claims that roots of the Camphor Laurel are active and are causing damage. However there is nothing in the report that demonstrates damage has been caused by tree roots. (Despite a recent letter stating that the report complies with the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005, its author was unaware of any Court application at the time of writing the report.) Mr Kunz says a large root can be seen coming from the base of the tree; that this root once extended under the fence and caused the damage; but the root was cut by the respondent's son six weeks ago. Mr Rae, Mrs Palgi's son, says the root was cut two years ago and only exposed by digging six weeks ago. He says the excavation allowed observation of the root and it can be seen to grow along the boundary, not beneath the fence and into Mr Kunz's property. Bringing my own expertise to the matter I find it more likely that the root was cut some years ago. It did not appear to grow onto Mr Kunz's property.

Other factors likely to have contributed to damage

8 On the evidence before me, I am not satisfied that the applicant has demonstrated the tree caused damage. Even if I were to accept that it has contributed, and is therefore a cause of damage, there are many other possible contributing factors.

9 There are several other trees in the vicinity, including a large Silky Oak.

10 The soil is reactive - it swells and shrinks with soil moisture changes.

11 The concrete is 25 years old. Other areas of concrete that appear to be a similar age, such as the front driveway, have cracks present.

12 The crack in the concrete ends at a downpipe. It is possible that a leak from this pipe has contributed to a change in soil moisture and caused soil to swell, which could lift and crack the concrete.

13 After the tree was poisoned, local soils may have recharged with rainfall, as the tree was no longer extracting moisture. Again, this could lead to swelling of the soil.

14 Considering these other possible causes, the applicant must satisfy the Court that the tree has made a significant contribution to the damage, and he has not done this. In summary, any contribution of the tree may be so minor as to not warrant making orders.

The respondent took reasonable action

15 This discretion is allowed under s 12(h) of the Act, where other contributing factors must be considered. This same section requires consideration of steps taken by the parties to prevent or rectify damage. I note that, although Mr Kunz first noticed the damage approximately seven years ago, he did not bring it to Mrs Palgi's attention until about a year ago, after the arborist assessment. Well before then, Mrs Palgi had the tree cut and poisoned. It is reasonable for her to think that, if there was a problem, she had taken care of it. If there was no mention made of compensation at the same time, she would be right to think she had dealt with the issue.

Conclusions

16 Considering the foregoing, I find that there is insufficient evidence to demonstrate that roots of the Camphor Laurel caused the damage. There are many other possible causes. It has certainly never been demonstrated to Mrs Palgi that her tree has caused damage, so she has been entirely reasonable in not taking further action since cutting and poisoning the tree. Consequently, the application is dismissed.

Orders

17 The orders of the Court are:

(1) The application is dismissed.

__________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 30 January 2013