Land and Environment Court New South Wales

• Medium Neutral Citation: Khosravi v Connolly & anor [2013] NSWLEC 1122
• Hearing dates: 10 July 2013
• Decision date: 10 July 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Appeal upheld in part; part compensation ordered for the replacement of one section of path

• Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; compensation for damaged property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148; Liang & anor v Marsh & anor [2011] NSWLEC 1026; McCallum v Riodan & anor [2011] NSWLEC 1009; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Zangari v Miller (No 2) [2010] NSWLEC 1093
• Category: Principal judgment
• Parties: Mr A Khosravi (Applicant); Mr M and Mr K Connolly (Respondents)
• Representation: Applicant: Mr Khosravi (Litigant in person); Respondents: Mr and Mrs Connolly (Litigants in person)
• File Number(s): 20247 of 2013

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Claremont Meadows against the owners of trees growing on an adjoining property.

2 The applicant is seeking compensation of $4260 for the replacement of a concrete path including the construction of a 500mm deep concrete root barrier, repair of a panel of metal fence, and repair of a gate. The applicant contends that these repairs are necessary because of damage caused by four of the respondents' trees. The applicant is also concerned that roots have lifted the concrete resulting in a potential trip hazard from which injury may arise.

3 The trees the subject of the application are T1 - Banksia sp, T2 - Leptospermum sp, T3 - Photinia sp; and T4 - Callistemon sp. They are growing in a retained garden bed along the western boundary of the respondents' property.

4 The trees are four of many trees and shrubs planted in about 1998 some four years or so after the respondents moved into their newly constructed dwelling. The trees and associated retaining walls and edging were professionally installed.

Relevant background

5 The applicant purchased his property in early 2011. According to the respondents, in late 2011 they received complaints from the applicant about leaves falling onto his property from overhanging branches of their trees.

6 The respondents' bundle of evidence details their attempts to engage someone to prune the trees. In March 2012 they applied to Penrith City Council for permission to prune the trees.

7 Later that month, council's Tree Management Officer, Mr Evan Rowse, inspected the trees and the applicant's property. Mr Rowse informed the respondents that the applicant was also concerned about lifted concrete; they contend that they were unaware of these concerns prior to this.

8 Mr Rowse's file note records the inspection. He notes that: the applicant's concrete path is lifted and cracked in at least two places; the path is 2-3 cm thick with no evidence of reinforcing; the path is lifted about 3cm adjacent to the Banksia; the concrete throughout the property is cracked; and, the fence has dents in it near the raised section of path but these do not appear to be consistent with tree damage.

9 The respondents were granted permission to prune the overhanging branches and remove the Banksia. In April 2012, the respondents paid for the removal of the Banksia and the pruning. They also purchased a 'blower/vac' to enable the applicant to maintain the leaves.

10 According to their statements of evidence, the respondents state that the applicant then pressed them for the repair of the concrete path through several letters of demand. The matter proceeded to the Local Court.

11 In preparation for the matter now before the Land & Environment Court, the respondents obtained witness statements from two licensed concreters who examined the applicant's concrete path. In essence, their evidence is that:

• The path comprises hand mixed, unfinished concrete which is likely to be weaker than correctly poured, compacted and professionally finished concrete;
• The path is about 30mm thick, far less than the 75mm thickness specified in the relevant Australian Standard; and
• There is no reinforcing and no expansion joints

12 This supports the respondents' statements that the first owners of the applicant's property installed the path themselves many years ago.

Jurisdiction

13 The key jurisdictional test in applications made under Part 2 of the Act is s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. This must be applied to each of the trees to which the application has been made.

14 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...".

The hearing

15 The hearing commenced with an inspection of the trees on the respondents' property. The species are noted above. While the Banksia has been removed, s 4(4) of the Act enables the Court to consider a tree that has been removed if it was on the respondent's land immediately before any damage or injury occurred.

16 The remaining trees are healthy but show signs of pruning. The garden wall and edging is in good order.

17 On the applicant's property, the damaged items were identified. The gate at the southern end of the path is embedded in a section of concrete slab that is slightly higher than the adjoining concrete driveway. I observed several fine cracks in the concrete path. The path slopes slightly towards the house and away from the trees but is otherwise level and functional. There is an edging strip of concrete between the fence and the concrete path that is cracked in some parts but relatively level and slightly below that of the eastern side of the path. There is one substantially lifted section of path adjoining the area in which the Banksia grew. The adjoining section of concrete at the rear of the applicant's dwelling is in poor condition with many random cracks.

18 The associated panel of metal fencing has some slight dents and creases but is otherwise in good order and fully functional. The applicant contends that the dents have been caused by pressure from roots from the Banksia.

19 At his request, the applicant was given a limited amount of time to remove the lifted section of concrete. The respondents objected to this as they contend the applicant has been on notice for several months that he needed to produce evidence of the causation of the damage, particularly since the Local Court hearing.

20 As the proceedings in these matters are relatively informal and involve self-represented litigants, I considered it was not unreasonable to allow the applicant a short period of time to prove his case however, leave was not given for the removal of the entire pathway.

21 The removal of the lifted section of path revealed a woody root that had the same physical characteristics as coming from a Banksia; indeed, there were some small shoots arising from the stump that were clearly from a Banksia.

Findings

22 I am satisfied on the evidence of the root that the Banksia is a cause of the damage to the path. The applicant did not produce any evidence of any nexus between the other trees and the alleged damage. While it is a hypothetical possibility that roots may be involved, it is not open for me to conclude/ infer that because a root from one tree has lifted a section of concrete that this is a certainty for the remaining trees. Although I granted leave for the applicant to do some excavation, I agree with the respondents that the applicant has been aware of the problem long enough to provide any evidence he may wish to rely on.

23 Similarly, I am not satisfied that the dents in the fence are as a consequence of the Banksia. In this I agree with Mr Rowse's observations. While there is a very slight lifting of the panel at its base, the effect is cosmetic and the fence is fully functional. If I am wrong in terms of causation and the tree has been a cause, the "damage" is so minor that, as a matter of discretion, no orders would be made for its repair.

24 However, as the jurisdiction has been engaged for the Banksia in regards to one section of concrete path, I must consider what, if any, orders should be made. This requires consideration of relevant matters in s 12 of the Act.

25 Most relevant here is s 12(h)(i) and (ii) - things other than the tree and actions of the parties.

26 Having had the benefit of inspecting the removed section of concrete path, I concur with the professional opinions of the concreters, and the observations of Mr Rowse and the respondents - in particular, the thin layer of concrete and the absence of expansion joints and reinforcing. In addition, the concrete has been poured directly onto the soil beneath rather than onto an appropriate sub-grade. The soil is reportedly moderately reactive clay, that is, it shrinks and cracks when dry and expands when wet. This in itself can result in cracking of pavement. Therefore, the path and its installation are a contributing factor.

27 Apart from painting the edges of the lifted section to highlight them as a trip hazard, the applicant has not taken any action to prevent or limit the damage. The respondents removed the tree when they became aware of the potential problem and have taken steps to try and settle the matter.

28 When questioned as to whether the path was lifted when he purchased the property, the applicant agreed that it was but that it had lifted more during the period he has owned the property. This is relevant when considering what, if any, compensation is due. It would be unreasonable to order payment for damage that existed prior to the purchase of a property, or to pay the full cost of repairs to a higher standard (see Liang & anor v Marsh & anor [2011] NSWLEC 1026 at [33]-[35]).

29 In this matter I have determined that some contribution is payable by the respondents but this will be limited to the replacement of the section of pavement removed by the applicant and under which was found the Banksia root. This section is illustrated in the photograph attached to this judgment. This is described as the partially lifted section from the yellow line to the nearest edge of the dwelling between the fence and the existing join to the right of the partially lifted section.

30 Given the condition of the path, and the actions taken by the respondents to date, the respondents' contribution is limited to 50% of the cost of the replacement to a maximum of $200.00.

31 On the basis that there is insufficient evidence and therefore no jurisdiction to do so, no orders will be made for any interference with any of the other trees or for any rectification of any other element of the applicant's property.

32 As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can only be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be 'changed circumstances' and fresh evidence.

Orders

33 As a consequence of the foregoing, the Orders of the Court are:

(1) The application is upheld in part.

(2) The applicant has 6 months from the date of these orders to replace the section of concrete pathway identified in the photograph attached to this judgment otherwise order 3 lapses.

(3) The respondents are to reimburse the applicant 50% of the cost of this work to a maximum contribution of $200.00 within 21 days of the receipt of a tax invoice for the completed work.

(4) The application for compensation for the reminder of the path, the panel of fence, and the repair of the gate is dismissed.

_______________________

Judy Fakes

Commissioner of the Court

Area of concrete path to which the Orders apply as described in [29].

Decision last updated: 10 July 2013