Land and Environment Court New South Wales

• Medium Neutral Citation: Bentley v Hart [2013] NSWLEC 1080
• Hearing dates: 26 April 2013
• Decision date: 26 April 2013
• Jurisdiction: Class 2
• Before: Moore SC; Galwey AC

Decision

1)The respondent is to remove the Datura from the planter box in which it is located and to effect such removal within 60 days of the date of these orders;

2)Any roots not removed pursuant to (1) are to be pruned to the boundary of the applicant's property;

3)The work in (1) and (2) is to be carried out by an arborist of AQF level 3 qualifications with appropriate insurances;

4)The work in (1) and (2) is to be carried out at the respondent's expense;

5)The respondent is to grant the applicant access to the respondent's property for the purposes of carrying out works to the applicant's bathroom subject to:

(a)Service on the respondent of a copy of approved plans and conditions of consent for the proposed works from the City of Sydney Council;

(b)Provision of seven (7) clear days notice of each and every occasion upon which access is requested; nomination of the purpose for such access; the names of those persons proposing to access the respondent's property; and proof of insurances by the applicant to the respondent for those proposing to so access;

(c)Access is to be granted between 7:30 AM to 5 PM Monday to Friday and 8 AM to 12 noon on Saturdays;

6)If works by the applicant envisaged by (5) are not completed within 12 months of the date of these orders, the respondent has liberty to apply with respect to (5);

7)The application is otherwise dismissed;

8)The exhibits, other than Exhibits D and E, are returned.

• Catchwords: Root damage
• Legislation Cited: Trees (Dispute Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mr Paul Bentley (Applicant); Ms Katherine Hart (Respondent)
• File Number(s): 21193 of 2012

Judgment

1 COMMISSIONERS: At the rear of a quiet street in Paddington grows a Datura tree in an elevated planter box raised some 700 millimetres above the adjacent path level. The planter box has, as one of its edges (it being generally triangular in shape with a slight curve to its front) - the eastern edge of the planter box - formed by the wall of the adjacent property. Immediately within that adjacent property is a portion of a bathroom constructed at some indeterminate time in the past prior to the acquisition of the property by the applicant in these proceedings. The applicant has, however, at a time in the mid 1980s, undertaken a renovation of that bathroom which included a retiling of it.

2 The applicant now brings an application pursuant to pt 2 of the Trees (Dispute Between Neighbours) Act 2006 concerning what is claimed to be damage to the bathroom caused by the roots of the Datura.

3 This morning we inspected the site, observed the tree and the planter box within which it is growing, and inspected the bathroom on the applicant's property. During the course of the site inspection, we heard informally given evidence by consulting engineers and arborists retained by each of the parties.

4 We were asked to conclude that the damage to the tiling that has been occasioned to the applicant's bathroom has been caused by the roots of the tree. We have in evidence before us a series of reports for each of the applicants and we heard concurrent oral evidence of a multidisciplinary character given by the four experts to whom we have referred.

5 In the respondent's second bundle of material, there is a survey (at p 20) that shows the location of the tree immediately adjacent to the relevant portion of the applicant's property. Extrapolating as we are able to from the stairs and rear wall, excluding the storage cabinet on the applicant's property, it is clear that the entirety (or if not the entirety, virtually the entirety) of the eastern element of the planter box is located adjacent to and butting up to the applicant's wall that forms that eastern planter box boundary.

6 In the evidence presented on behalf of the applicant by Mr Home, an arborist, there are a number of photographs of the roots of the Datura that show quite clearly, particularly at the photographs on pp 9 and 10 of that material, where there are roots of the tree penetrating the mortar joints of the wall of the applicant's bathroom.

7 We were invited to conclude that a variety of elements of lifting of tiles in the applicant's bathroom were caused by the roots of the tree. Reliance in this regard was placed on a photograph showing fine root penetration behind the cupboards in the applicant's kitchen, photographs that were taken at the time of renovation of the applicant's kitchen. We were invited to conclude that such tree root penetration had occurred at the relevant locations in the applicant's bathroom.

8 We are unable to so conclude. Contrary to the position with respect to the photographs relating to the kitchen where the tiles had been removed, none of the tiles upon which reliance is presently placed have been removed to expose any roots. The single tile that has been removed which is at the rear of the laundry facility located within the applicant's bathroom is clearly explicable on the visual evidence shown to us where there has been moisture penetration at a level at or slightly above ground level in the outside ground. There was, at the location where that tile had been removed, no evidence of tree roots behind it. None of the other tiles had been removed.

9 Given the extent of the bowing and cracking that were displayed in the tiles that we were shown, we are unable to be satisfied on any reasonable evidentiary basis that those tiles that are subject to bowing on the southern wall of the applicant's bathroom has been caused by any interference or intervention by the roots of the tree. A similar position applies with respect to the bowing of the tiles on the northern wall immediately adjacent to the applicant's kitchen.

10 We are, however, satisfied, with respect to the cracking of some four tiles (clearly shown on photograph 8 of Mr Home's report) that, in the southwestern corner of the bathroom, immediately above the bath, there is cracking of tiles that is quite different from and readily able to be distinguished from the nature of the bowing in the tiles that occurs at other locations in the bathroom.

11 Indeed in this regard, in addition to the evidence given by the applicant's consulting engineer on that, the respondent's consulting engineer, Mr Birzulis conceded that it was likely that the cracking in that area, given its distinctive nature, was occasioned by pressure on the wall immediately to the west, a point coincidental with major roots at the basis of the Datura.

12 Whilst there was a reservation expressed by Mr Birzulis that such pressure might have been occasioned purely by soil pressure given the location of the bathroom being excavated somewhat below natural ground level, we are not satisfied that, absent the tree, there would have been any sufficient pressure simply by a build-up of soil at that point to occasion the cracking that we have observed. We are satisfied, on a sufficient evidentiary basis on the balance of probabilities, that the cracking (confined to those four tiles observable in the particular photograph) has been caused by pressure of the roots of the Datura - thus satisfying one of the three tests contained in the first limb of the s 10(2) of the Trees (Dispute Between Neighbours) Act 2006. The Court's jurisdiction is therefore enlivened with respect to consideration of the remaining of the jurisdictional and discretionary matters that arise.

13 Having been satisfied that the Court's jurisdiction is enlivened, we then proceed to consider what remedies should be given if any.

14 First we observe in this context that, for specific reasons that we do not need to set out in detail, there is a special emotional attachment of the respondent to the tree that is the subject of the application.

15 As a consequence, during the course of the proceedings, the applicant's counsel, Mr Johnson, indicated that if we were minded to make any order requiring intervention with or removal of the tree, that the applicant was happy to have such an order cast in as facultative a fashion as possible to permit the preservation of the tree (if that were to be aboriculturally possible - a matter about which we express no opinion).

16 Mr Hutchings, counsel for the respondent, indicated that if there were to be an interventionist order, an order of that nature was appropriate.

17 We are satisfied that, absent work to be carried out by the applicant to the structures on the applicant's property and absent the removal of the tree, there are likely to be continuing ongoing difficulties with and the possibility of damage to the applicant's property caused by root pressure from the tree.

18 It is unnecessary for us to consider whether the probability of such future damage is such as to engage the third of the test in s 10(2)(a) as we are satisfied that the past damage test has already enlivened our jurisdiction. It is unnecessary therefore for us to consider the rule of thumb posed by the Court in Yang v Scerri [2007] NSWLEC 592 as to whether or not any future damage is likely to occur within the next twelve months or so. It is sufficient that our jurisdiction has otherwise been engaged by the past damage that has been caused to the applicant's tiles.

19 Failure to remove tiles from the internal surface of the bathroom leaves us unable to conclude, on any rational basis, that any damage, other than the damage to the tiles that we have nominated in the southwestern corner of the bathroom, has been caused by roots of the tree. The damage in the south-western corner of the bathroom is, however, the damage that is observable in the bathroom at closest proximity to the location of the tree on the adjacent property.

20 Having concluded that it would be appropriate to order the removal of the tree in order to ensure that there would be a proper opportunity to rectify the existing damage, as well as to prevent future damage to the applicant's property, we indicate that when it comes to the formal orders that we propose they will be cast in a sufficiently permissive form to provide the respondent with the opportunity to preserve the tree (if that is able to be effected).

21 We turn now to what should be the position with respect to what responsibility, if any, should fall on the respondent for the damage to the applicant's property.

22 We are satisfied that the damage itself, consistent with the evidence given by Mr Birzulis, arises in significant, if not in entire, measure as a consequences of the inadequate construction of the structure that is located on the applicant's property and, in combination with the inadequacy of that single skin brick wall, the inadequacy of the nature of the internal structure to which the tiles are affixed. That is, the absence of any internal wooden studding with the application of some waterproof cladding, such as Villaboard, above the bath level rather than the affixing of the tiles directly to the single skin brick wall.

23 It is unnecessary for us to speculate whether the bowing in the tiles is caused by what Mr Birzulis described as growth of the tiles because of their alleged inadequate quality. It is sufficient for us to note that we are not satisfied, except to the extremely limited extent already described, that the damage can be ascribed to the tree.

24 It is clear that the present standard of the internal finish of the bathroom requires it to be subject of a major renovation. Whether that renovation is to be one completely undertaken by demolition and rebuilding, or whether it is to involve an alternative and less intrusive renovation as advocated by Mr Birzulis is, in our view, a matter about which we need express no opinion as we are satisfied that the primary cause (and indeed almost that of almost the totality) of the inadequacy of the internal state of the bathroom is a result of the inadequate construction and renovation of the bathroom undertaken in the past.

25 As a consequence, although we are satisfied that perhaps four or five of the tiles may have been damaged by the tree's root pressure on the adjacent wall, and that necessitates the removal of the tree, we are not satisfied that it is appropriate to order that the respondent make any contribution whatsoever to the renovation of the bathroom.

26 It is, however, necessary to make precautionary orders to prevent any renovated bathroom from being damaged by the tree in the future. It follows, with respect to the residual elements of the applicant's case, we propose to dismiss the application.

27 Concern was expressed by Mr Hutchings as to what might be the open ended nature of such a process, and we raised the concern as to whether we should seek to intervene in a process that would otherwise require consideration by the Council of the City of Sydney on the development application for such works as might be proposed.

28 Given that, in our experience, it would be necessary for development for major renovations to a wet area to a dwelling would require a development application and consent, potentially be dealt with through a complying development proposal but nonetheless with a certification process, we consider it appropriate to leave that in the hands of the appropriate consent authority, whether it be certifier or council. We propose, however, to provide in the orders that access for the purposes of giving effect to any approved works should be permitted to the extent necessary, subject to certain restrictions, over the respondent's property.

29 Mr Hutchings also expressed on the behalf of the client concern at the possible open ended time of such an access order and we propose to deal with that in our orders by proposing that if the works are not completed within twelve months, that the respondent would have liberty to reapproach with respect to the access order that we propose to make.

30 As a consequence the orders of the Court are as follows:

1) 1) The respondent is to remove the Datura from the planter box in which it is located and to effect such removal within 60 days of the date of these orders;

2) Any roots not removed pursuant to (1) are to be pruned to the boundary of the applicant's property;

3) The work in (1) and (2) is to be carried out by an arborist of AQF level 3 qualifications with appropriate insurances;

4) The work in (1) and (2) is to be carried out at the respondent's expense;

5) The respondent is to grant the applicant access to the respondent's property for the purposes of carrying out works to the applicant's bathroom subject to:

(a) Service on the respondent of a copy of approved plans and conditions of consent for the proposed works from the City of Sydney Council;

(b) Provision of seven (7) clear days notice of each and every occasion upon which access is requested; nomination of the purpose for such access; the names of those persons proposing to access the respondent's property; and proof of insurances by the applicant to the respondent for those proposing to so access;

(c) Access is to be granted between 7:30 AM to 5 PM Monday to Friday and 8 AM to 12 noon on Saturdays;

6) If works by the applicant envisaged by (5) are not completed within 12 months of the date of these orders, the respondent has liberty to apply with respect to (5);

7) The application is otherwise dismissed;

8) The exhibits, other than Exhibits D and E, are returned.

Tim Moore

Senior Commissioner

D Galwey

Acting Commissioner of the Court

Amendments

13 May 2013 - numbering corrected
Amended paragraphs: Orders

Decision last updated: 13 May 2013