Land and Environment Court New South Wales

• Medium Neutral Citation: Ruoso v Hoang & anor [2014] NSWLEC 1062
• Hearing dates: 18 March 2014
• Decision date: 09 April 2014
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

See paragraphs 19-22

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage; compensation.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: APPLICANT; Carmela Ruoso; RESPONDENTS; Thi Ngoc Hoang (First respondent); Huu Quoc Viet Nguyen (Second respondent)
• Representation: APPLICANT; Ken Thomas (Solicitor); F C Bryant Thomas & Co; RESPONDENT; No appearance
• File Number(s): 20965 of 2013

Judgment

1 Under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 Ms Ruoso (the applicant) seeks orders for the owners of the neighbouring Penshurst property, Thi Ngoc Hoang and Huu Quoc Viet Nguyen (the respondents), to pay for repair to a section of paving she says is damaged by roots from two trees on their property and for removal of the trees. She also seeks orders for costs incurred for expert reports, for making the application to the Court and for cutting concrete for an inspection hole.

2 Ms Ruoso relies on the following documents:

• Field notes dated 2/07/2014 by Mark Hartley, a consulting arborist, recommending further investigation.

• A report dated 3/12/2013 by Mark Hartley identifying roots, discussing damage and making further recommendations.

• A report dated 24/02/2014 by John Cavasinni, a civil and structural engineer, addressing the possibility of tree roots causing damage to the paving.

3 Ms Ruoso included in her application a quote for replacing the damaged section of paving, the invoice for concrete cutting and invoices for the three reports.

4 Commissioners of the Court do not have the power to order payment of costs of reports and making an application. Should she wish, the applicant may file a Notice of Motion with the Court for a Judge or the Registrar to decide that matter as she or he determines is appropriate.

5 Before moving on from the matter of costs of reports I note that the report of John Cavasinni, engineer, is dated 24 February 2014. It was filed with the Court on 3 March 2014. Direction 6 of the Court (made 18 February 2014) required the applicant's evidence to be filed and served by 28 February 2014. The report refers to Mr Cavasinni's site inspection of 10 December 2013. Mr Cavasinni's invoice is included in the Schedule of Expenses (Exhibit D). It is dated 19 December 2013 and refers to "site inspection etc" on 10 December 2013 and "report etc" on 19 December 2013. The invoice is for an amount of $1,155. Mr Cavasinni's report is two pages but consists of only four paragraphs followed by a statement of compliance with the Expert Witness Code of Conduct. At Paragraph 3 Mr Cavasinni states: "I have calculated that these pressures are enough to cause the concrete to undergo curvature...". However any such calculations are not included. Some generalisations then follow. The report does not assist the Court.

Serving the respondents

6 As the applicant was originally unable to serve a copy of the application on the respondents, she filed a Notice of Motion for substituted service. The Court made orders for substituted service, which the applicant subsequently fulfilled.

Onsite view

7 Two trees grow on the respondents' land approximately two metres from the common boundary. They appear to be Norfolk Island Pines, approximately 17 metres tall. The stem diameter of the larger one is perhaps 600 mm.

8 The paved area between the applicant's dwelling and the boundary has several large cracks running through it. A section of paving adjacent to the boundary, including the underlying concrete base, was removed on 23 September 2013. The concrete base is up to 120 mm thick. Large roots are now exposed growing in the soil immediately beneath the removed paving section. Bark on the roots is consistent in appearance with that of Araucaria species, which is somewhat distinctive.

The applicant's submissions

9 Ms Ruoso submits that roots from the two trees have caused damage to her property. She says roots from the tree will cause damage in future. She submits that removal of the two trees is necessary to prevent future damage. She says she has taken all reasonable steps to notify and reach agreement with the respondents.

10 Ms Ruoso submits that Mr Hartley's report demonstrates that roots found beneath the paved area are from the two trees and that both Mr Hartley's report and Mr Cavasinni's report demonstrate that those roots have damaged the paving. Mr Hartley collected samples of the exposed roots and, following several tests, concluded that they were from the neighbouring trees.

The respondents' submissions

11 The respondents have made no submissions and did not attend the hearing.

Findings

12 I am satisfied that the applicant has made all reasonable effort to notify the respondents of the issues and to reach agreement with them. She has followed the Court's orders for substituted service.

13 Considering the findings of Mr Hartley in his report and my own observations of the exposed roots, I am satisfied that large roots found beneath the paving are from the two neighbouring trees. Considering their location, their size and the lack of evidence suggesting any other cause, I am also satisfied that these roots are the primary cause of damage to the paved area.

14 All relevant jurisdictional tests at s 10 of the Act are therefore satisfied and the Court can make orders pursuant to s 9.

15 The severity of damage is such that it warrants remedy for both aesthetic and safety purposes. This necessitates removal and replacement of the area of cracked paving and its cracked concrete base, and replacement with new concrete and paving.

16 All tree roots beneath the concrete will need to be removed, otherwise damage is likely to recur in the near future. They are still actively growing and will increase in girth. Alternative construction methods that may allow retention of tree roots would be unreasonably expensive or may burden the applicant with unreasonable levels of maintenance. Roots would therefore be cut at the boundary, approximately two metres from the trees. Mr Hartley states on page 7 of his report of 3 December that: "In the event that a decision is made to sever the roots, consideration should be given to either removing the trees, or in the very least to removing every second whirl to reduce the wind sail area." I accept that cutting several large roots so close to trees of this size may increase their risk of failure, however to my mind the suggested pruning is unlikely to sufficiently reduce that risk. The respondents have suggested no alternatives. Risk of tree failure would affect the applicant and the respondents. I propose orders for the removal of both trees.

17 Although I cannot order costs incurred in making the application, I am satisfied that removal of the section of concrete and paving for inspection services has removed damaged paving that must be replaced, and if I am satisfied that the damage was caused by the trees the cost of removing the concrete would have been incurred by Ms Ruoso in remedying the damage, and she would therefore be entitled to reimbursement for that expense, which is $242.

18 Turning to the cost of repair, the quote from Australian Inspired Gardens to remove and replace 22 square metres of paving is $7,436. I note that this is not the entire area of paving but only that area that includes large cracks. The quote was obtained in November last year and does not state any period of currency. I therefore propose orders for the applicant to obtain three quotes to replace the same area of paving.

19 Considering the foregoing, the orders I propose to make are:

(1) The application is upheld in part.

(2) Within 30 days of the date of these orders the respondents are to engage a suitably qualified (minimum AQF level 3) and insured arborist to remove the two trees near the common boundary to ground level and apply herbicide containing glyphosate to the stumps or, alternatively, grind out the stumps.

(3) Within 14 days of the date of these orders, the applicant is to obtain three quotes from suitable contractors to remove and replace 22 square metres of damaged paving to an equivalent standard of the original paving. The quotes are to include removal of all woody tree roots found in the soil below the paving.

(4) Within 21 days of the date of these orders the applicant is to serve the cheapest of the three quotes on the respondent.

(5) After removal of the two trees and within 60 days of the date of these orders the applicant is to engage her chosen contractor to remove and replace the 22 square metres of damaged paving.

(6) Between removal and replacement of the paving the applicant's contractor is to remove all woody tree roots found in the soil below the paving.

(7) When the works above are completed the applicant is to serve the respondents with notification of such.

(8) Within 7 days of being served notification in (7) the respondents are to pay to the applicant the amount of the quote in Order (4) along with an additional $242, being the cost of concrete removal completed to date.

(9) The exhibits are returned.

20 To date the respondents have not made any submissions. However they will be provided the opportunity to make submissions with regard to the proposed orders. The Court's Registrar will write to the respondents, sending this decision and proposed orders, asking them if they wish to be heard on why those orders should not be made.

21 Should the respondents indicate within 21 days of being sent notification by the Registrar that they would like to make any submissions, the Court will provide an opportunity for them to do so and for the applicants to make any further submissions in response.

22 Should the respondents fail to respond within 21 days of being sent this notification the orders proposed above at (19) will be made.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 10 April 2014