Land and Environment Court New South Wales

• Medium Neutral Citation: Shepstone v Hansell and Ors [2012] NSWLEC 1147
• Hearing dates: 1 June 2012
• Decision date: 01 June 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; rectification ordered

• Catchwords: TREES [NEIGHBOURS]; damage to property; injury; compensation
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069
• Category: Principal judgment
• Parties: Mr Daniel Shepstone (Applicant); Mr Neville Hansell (First Respondent); Mr David Hansell (Second Respondent); Mr Mark Hall (Third Respondent)
• Representation: Applicant: Mr Daniel Shepstone (Litigant in person); First Respondent: Mr Neville Hansell (Litigant in person); Second Respondent: Mr David Hansell (Litigant in person); Third Respondent: Mr Mark Hall (Litigant in person)
• File Number(s): 21116 of 2011

Judgment

1 COMMISSIONER: This is an application under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Fairy Meadow against the owner of a tree growing on an adjoining property.

2 The applicant is seeking the removal of tree roots, the installation of a root barrier, and compensation for damage to the concrete floor of his garage. The orders are sought on the basis that roots from the tree have caused damage to the garage floor and the uplifted slab is a trip hazard that has resulted in injury to his daughter.

3 Under s 10(2) of the Act, 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.

4 Since the application was initially filed with the Court, the original respondent in these proceedings has passed away and her property has been sold. The first and second respondents are her sons and the executors of the estate; the third respondent is the new owner.

5 The applicant purchased his property in 2007. He states that he first noticed the lifted slab when his daughter tripped and injured herself in May 2011. He contends he then contacted his neighbour and asked for the removal of the tree. However, even though the tree was removed, it suckered again. He also contends that the wrong root was cut and the root causing the damage was left uncut.

6 The second respondent states that he removed the tree and cut the roots in June 2011 soon after being notified. He states that before the property was sold, two other trees along the fence line were removed and the stump of the first tree was poisoned. He did not enter the applicant's property to observe the alleged damage.

7 The hearing commenced with an inspection of the respondents' property and the location of the tree was noted. The stump remains but it has been drilled and poisoned and is now dead. The end of a severed root was seen as well as areas of disturbed soil from where roots were removed.

8 On the applicant's property a large woody root was seen growing beneath a section of the garage floor. The slab has been lifted by at least 40mm on the southern side closest to the root. The edge of the slab has been painted white to indicate a change in level. The root is clearly from the respondents' property and the root is dead.

9 Apart from the lifted slab, there is a crack in the slab some 2.7 m or so to the west. There is no evidence that the roots have caused this as similar cracks were seen in other sections of the driveway.

10 The applicant is also concerned about other roots found under the house and near a footing but no damage was identified.

11 The applicant obtained two quotes for the removal and replacement of 13m2 of concrete. The cheapest of these was $3630. However, during the hearing, measurements were made. The applicant stated that the area to be replaced was from the painted edge to beyond the crack - a distance of 2.8m. The width of the slab is about 2.7 m. This is approximately 7.5m2 and considerably less than the area quoted.

12 As the damage has not occurred during the ownership of the third respondent, no orders can be made for the payment of any compensation by him (see Thornberry & Anor v Packer & Anor [2010] NSWLEC 1069).

13 The first and second respondents contend that given the extent of the lifting, it was likely to have been in that condition when the applicant purchased the property. They also contend that they were not given notice of the problem and were denied the opportunity to take action (Osborne v Hook [2008] NSWLEC 1231). As a result they contend they should not be responsible for any payment of compensation. However, if they were ordered to pay compensation it should be a smaller area as they contend there is no evidence that the crack has been caused by the roots. In their view, the extent of the repair should be a section about 1.5 m long and the width of the slab; that is about 4m2.

14 Dowelling of the new slab into the surrounding slabs was questioned, as was the quality of the replacement slab.

Findings

15 After viewing the evidence it is clear that a large woody root from a tree that grew on the respondents' property has caused significant lifting of a concrete slab in the applicant's garage. There is also uncontested evidence that there was an injury as a result of that uplift. Therefore I am satisfied that s 10(2) is satisfied and the jurisdiction is engaged. However, as the tree is dead, and others removed, there is no need for a root barrier. This should also allay the applicant's fears about future damage to the footings of his dwelling.

16 With respect to what orders should be made, while the root is now dead and no further damage will occur, the lifted slab still poses a tripping hazard. Given the particular medical circumstances of the applicant and his family, I agree that the section of lifted slab should be removed and replaced. This will require the removal of any roots beneath the slab and the compaction of the subgrade.

17 In regards to the respondents' contentions, I agree that the root growth appeared to be quite rapid but in the absence of any other evidence, the fact remains that a large root from their property has lifted the slab. While they took action to prevent further damage, the root nonetheless had already caused the damage. However, I agree that there is no evidence to indicate that the crack in the slab is due to the root and the respondents' preferred solution is agreed.

18 The area to be removed and replaced is to be measured from the lifted and painted edge (east) to a distance of 1.5m to the west, for the width of the slab. The western edge is to be saw cut. Once the concrete is removed, any roots beneath the slab are to be removed. A new slab is to be poured on well-compacted subgrade. Any dowelling of the slab into the surrounding slabs is to be clearly and separately itemised on all quotes. Similarly, if the applicant wants any additional repairs, these too must be separately itemised. Any dowelling or extra work is to be at the applicant's expense.

19 Therefore the Orders of the Court are:

(1) The application is upheld in part.

(2) The application for the installation of a root barrier is dismissed.

(3) Within 30 days of the date of these orders, the applicant is to obtain three quotes from licensed concreters for the removal and replacement of 4.05m2 of concrete slab. The area to be removed and replaced is to be measured from the lifted and painted edge (east) to a distance of 1.5m to the west, for the width of the slab. The western edge is to be saw cut. Once the concrete is removed, any roots beneath the slab are to be removed. A new slab is to be poured on well-compacted subgrade. Any dowelling of the slab into the surrounding slabs is to be clearly and separately itemised on all quotes. Similarly, if the applicant wants any additional repairs, these too must be separately itemised. Any dowelling or extra work is to be at the applicant's expense.

(4) Within the same timeframe, the first and second respondents are invited to obtain at least two quotes for the same work.

(5) The applicant must provide access on reasonable notice for the purpose of quoting.

(6) Between 1 July and 7 July 2012, the parties are to exchange quotes and the cheapest quote is to be selected.

(7) The applicant is to engage and pay for the work in (3) to be done. Dowelling, if requested, and any other extra work are to be at the applicant's expense.

(8) The work is to be done within 90 days of the date of these orders otherwise order (9) lapses.

(9) The first and second respondents are to reimburse the applicant for the cost of the work in (3), not including any dowelling or extras, within 21 days of the receipt of a tax invoice for the completed work.

__________________________

J Fakes

Commissioner of the Court

Decision last updated: 02 June 2012