Land and Environment Court New South Wales

• Medium Neutral Citation: Amycol Group Pty Ltd v Gillies & anor [2014] NSWLEC 1021
• Hearing dates: 12 February 2014
• Decision date: 12 February 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part see [25]

• Catchwords: TREES [NEIGHBOURS] Damage to property; consent orders; rectification ordered
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Cincotta V Huang & ors [2011] NSWLEC 1086; Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069
• Category: Principal judgment
• Parties: Amycol Group Pty Ltd (Applicant); Mr S Gillies (First Respondent); Ms J Metzke (Second Resondent)
• Representation: Applicant: Ms C Renner (Solicitor); Respondent: Ms A Touriki (Solicitor); Applicant: Gadens Lawyers; Respondent: Athena Touriki Solicitors
• File Number(s): 20829 of 2013

Judgment

1 COMMISSIONER: The parties in this matter are seeking Consent Orders for the rectification of various elements of the applicant's property said to have been caused by trees that were once growing on the respondents' property.

2 Before agreeing to make the orders sought by the parties, the Court must determine whether it has the power to do so. The Court's jurisdiction to make orders under s 9 of Trees (Disputes Between Neighbours) Act 2006 (the Act) requires satisfaction of, amongst other things, s 10(2).

3 Section 4(4) of the Act enables a tree that was situated on adjoining land immediately before damage occurred but has since been removed, and which gave rise to an application under Part 2, to be considered.

4 In this matter, the two trees the subject of the application have been removed but the stumps remain. Tree 1 was a Eucalyptus nicholii growing in the front garden of the respondents' property. Tree 2 was a Celtis occidentalis growing in the rear garden. Both trees grew close to the common boundary.

5 The key jurisdictional test in Part 2 is satisfaction of any element of s 10(2). This section states that the Court must not make an order unless it is satisfied that any of the trees concerned have caused, are causing, or are likely in the near future to cause, damage to the applicant's property or are likely to cause injury to any person. This application concerns damage caused to property and not injury to any person.

6 The application claim form identifies six areas of damage to the dwelling and ancillary elements that comprise the applicant's property. The damage includes cracking of internal and external walls, cracking of a step and tiled verandah and lifting of paving.

7 The initial claim sought compensation and rectification costs in excess of $130,000. Since then the applicant has reduced the number of elements of damage and the parties have negotiated proposed orders.

8 The claim is now limited to:

• Repair of the cracked masonry wall at the front step; the respondents to pay 100% of the cost;
• Repair of a tessellated tile pathway (described as cracked tiling/terrazzo/ stone finishes on the path and treads); the parties to equally share the costs;
• Removal and relaying of brick pavers in the rear garden; the respondents to pay the full cost.

9 The parties rely on a number of reports by structural engineers. All engineers agree that the respondents' trees are likely to have been a cause of the damage to the applicant's property. However, all engineers agree that there are other possible causes including wear and tear, age of the building (approximately 100 years old), reactive clay soils, older style footings, poor drainage, and perhaps the roots of other trees and shrubs located on the applicant's property.

10 All engineers rely on a visual assessment and the proximity of the trees to the damaged portions of the applicant's property in forming their opinions. No engineer undertook any excavation to confirm the presence or absence of tree roots.

11 Having had the benefit of viewing the damage during the on-site inspection, and having read the reports, including an arborist's report prepared for the respondents, I am satisfied to the extent required by s 10(2) that the crack in the masonry wall near the front step and most of the lifting of paving at the rear of the applicant's property have been caused, at least in part, by the respondents' trees.

12 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...".

13 In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280, Preston CJ at [179] when considering the necessary nexus between a tree and the alleged damage finds it is sufficient to engage the Court's jurisdiction if the tree is "a" cause of the damage.

14 In regards to the tessellated tile pathway and the front step tread, I am not satisfied to the extent required that the roots from Tree 1 have caused the damage.

15 Even though the engineers have given their opinions, they have not substantiated them. I saw no cracking of the masonry wall between the crack in the path and the respondents' property. As is typical of those pathways, there is no provision for expansion joints. There is no indication of the depth and adequacy of the sub-grade. The path is old. It is also possible that tiles and the tread may have been cracked by objects being dropped onto them. Therefore while there is a theoretical possibility that the tree caused the damage to these elements, I am not satisfied to the extent required that the Court's jurisdiction to make orders is engaged.

16 However, if I am wrong in this and the roots are a cause of the damage, I make the following observations.

17 The respondents moved into their property in September 2011 after the usual 6-8 week settlement period. The application claim form includes a structural engineer's report dated 2nd September 2011 regarding an inspection of the applicant's property undertaken on the 12th August 2011. The report at numbered point [5] includes the statement "The front tessellated tile concrete patio has cracking through it". The paragraph refers in part to Photo 2. This photograph shows the crack in the front tiled pathway. This crack was observed at the hearing and there appears to be no discernable change from the time the photograph was taken.

18 I therefore consider that the pathway was cracked well before the respondents' purchased their property. In my view it would be unreasonable to expect the respondents to pay for something for which they were not responsible. This is discussed in Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069 at [5]. If a property has changed hands over the period 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 - see Smith & Hannaford and Cincotta V Huang & ors [2011] NSWLEC 1086.

19 Therefore, I do not agree to the proposed order relating to the repair of the tessellated pathway and the front step.

20 Returning to the crack in the front masonry wall, the respondents are prepared to pay for the full cost of the repairs. The damage is cosmetic and not structural.

21 In regards to the paving at the rear, I am satisfied that roots from the Celtis have lifted some of the brick pavers. The area of paving is approximately 5m x 5m in which there is growing a small Magnolia. A central portion of the paving is lifted and mounded. This displacement appears to arise primarily from roots of the Celtis, the flares of which can be seen extending beneath the dividing fence. The area of displacement is approximately 3m x 2.5m.

22 The applicant's most recent engineer's report (Exhibit C) at [27] recommends removal of the bricks, removal of roots and loose soil, new compacted sub-grade and replacement of the bricks. The engineer does not specify the area that should be replaced. The engineer also recommends drainage works designed to limit the ingress of water to the sub-floor area of the dwelling. The drainage issues are not associated with the Celtis.

23 The applicant's solicitor contends that the engineer gave verbal advice over the phone that a spot repair was not possible and that the whole area of paving should be removed and replaced. The engineer was not available for questioning.

24 In considering what contribution the respondents should make to the paving damage, I note that the applicant only advised them of the problem in August 2013 and since then they have removed the tree (after a lengthy development application process through Marrickville Council). However, I am satisfied that they were aware of the likely problem as a consequence of their arborist's report dated December 2012.

25 In my view the respondents' contribution should be limited to the area of paving most obviously affected by the Celtis - that is, the area 3m to the north of the external laundry and for a distance of 2.5m to the east of the garden edge. Any other works, including any drainage works, should be at the applicant's expense.

26 Therefore, after considering the evidence, I modify the proposed consent orders and make the following orders of the Court:

(1) The application is upheld in part.

(2) Within 30 days of the date of these orders the parties are each to obtain and exchange itemised quotes from appropriately qualified and licensed contractors for the following repairs to 60 Myrtle Street, Stanmore, NSW:

(a) The cracked masonry wall at the front step. The specific repairs required include:

(i) Cleaning out the previous repair materials from the crack;

(ii) Trimming/ neatly cutting the edges of the crack to a square profile for a depth of 15-20mm;

(iii) Cleaning out once again;

(iv) Installing a suitably sized foam backing-rod to suit the profile shape of the wall such that there is approximately equal depth and width at the remaining rebate about the backing-rod;

(v) Installing a UV-stable, paintable polyurethane or silicon sealant in accordance with any priming recommended by the product's manufacturer; and

(vi) Repainting.

(vii) Alternatively - steps (iv) and (v) above can be replaced with a cement-mortar prior to repainting.

(b) The brick paved patio, being an area of 3m north of the northern wall of the laundry and 2.5m east from the garden edge. The specific repairs required include:

(i) Removal, cleaning and stacking the bricks;

(ii) Digging up surface roots and disturbed soil to a depth of at least 100mm (not including any regrading works the applicant may choose to undertake);

(iii) Laying a 75-100mm thick, well-compacted sub-base of (preferably) granular sand or crusher dust (finely graded recycled concrete); and then

(iv) Relaying the pavers.

(v) Any additional work beyond the prescribed area in addition to the repairs listed in (i)-(iv) is to be separately itemised in any quote and is to be paid for my the applicant.

(3) The applicant, (and their tenant) is to provide all reasonable access during reasonable hours of the day on reasonable notice for contractors selected by the parties to assess the damage for the purpose of providing quotations.

(4) Within 35 days of the date of these orders, the parties are to agree on one of the quotes or, if they cannot agree, select the cheapest quote.

(5) The applicant is to engage the selected contractor to carry out the repair works.

(6) The respondent is to reimburse the applicant the costs of the works described in order (2) (noting (2)(b)(v) in full within 30 days of the receipt of a tax invoice from the applicant for the completed works.

(7) The Court notes that each party is to bear its own costs of the proceedings.

______________________

Judy Fakes

Commissioner of the Court

Decision last updated: 12 February 2014