Alshadaida v Elasmar

[2015] NSWLEC 1236

Land and Environment Court

New South Wales

Medium Neutral Citation:	Alshadaida v Elasmar [2015] NSWLEC 1236
Hearing dates:	26 June 2015
Date of orders:	26 June 2015
Decision date:	26 June 2015
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is upheld. See orders at paragraph 16.
Catchwords:	Trees (Disputes Between Neighbours); damage; repairs ordered; apportionment of costs of works.
Legislation Cited:	Civil Procedure Act 2005 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292
Category:	Principal judgment
Parties:	Mona Alshadaida (Applicant) Doreen Elasmar (Respondent)
Representation:	Counsel: Mona Alshadaida, litigant in person (Applicant) Doreen Elasmar, litigant in person (Respondent)   Solicitors:
File Number(s):	20179 of 2015

Judgment

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

Background

1. Mr and Mrs Elasmar live at a Merrylands property, which Mrs Elasmar (‘the respondent’) has owned since 2006. In their back yard, near their rear boundary fence, a mature Jacaranda tree grows. The tree is within 2 metres of the neighbouring dwelling, owned by Ms Alshadaida (‘the applicant’) since 2000. The common boundary is her side boundary and the Jacaranda is close to the front corner of her double storey brick dwelling. A concrete path runs along the side of her dwelling parallel to the boundary fence.

2. Ms Alshadaida has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’) seeking orders for the Jacaranda's removal, or alternatively the installation of a root barrier and pruning of the crown, and for the costs of repairing the concrete path and stormwater pipes, for the following reasons.

1. The tree shades her solar hot water panels, preventing water being heated. Apart from any inconvenience this may cause, Ms Alshadaida says this can also give rise to a risk of Legionnaire's disease.

2. The tree limits the efficiency of her solar electricity panels.

3. Leaves and twigs from the tree block drainage from her roof and guttering, which has led to water damage internally.

4. Tree roots have lifted the concrete path alongside her dwelling.

5. Tree roots have displaced concrete edging along a garden bed at the front of her dwelling.

6. Tree roots have caused cracking of external brickwork of her dwelling.

7. Tree roots or leaves may have blocked her stormwater pipes, as water is not draining to the street.

8. Roots have displaced the boundary fence.

9. If the tree is not removed these problems will continue and become greater in future as the tree grows.

3. Mrs Elasmar says the tree was there when she bought the property, as it was when Ms Alshadaida bought hers. The Elasmars value the tree as it is the only large tree in their garden and it gives them shade in summer. They do not want it removed. Ms Alshadaida first expressed her concerns to them in 2012 soon after becoming aware of the issues.

4. Ms Alshadaida has provided quotes for repair works along with an engineer’s report that identifies tree roots as a factor likely to be contributing to lifting of the path and cracking of the dwelling’s external brick wall, but certainly not its only cause. Reactive clay soils and seasonal soil moisture changes are also identified as contributing factors.

Correction of the respondent’s name

5. The respondent’s maiden name was used in the application and therefore in all documentation at the Court prior to the hearing. At today’s onsite hearing the respondent explained that she goes by her married name. In accordance with s 64 of the Civil Procedure Act 2005 I have corrected her name on the application. This judgment uses her married name as provided by her at the hearing.

Framework

6. If I am satisfied that the Jacaranda has caused damage to Ms Alshadaida’s property, I can make orders as I see fit to remedy and prevent damage after considering a range of matters listed at s 12 of the Trees Act.

Solar hot water and electricity

7. Shading of solar panels does not constitute damage to Ms Alshadaida’s property, so the Court has no jurisdiction over this element of her application. A real risk of injury would enliven the Court’s jurisdiction. Despite Ms Alshadaida’s claim that insufficiently heated water may cause Legionnaire's disease, she has provided no evidence of this and I cannot be satisfied to the level required by the Act that the risk is real, what level of risk may exist and what action would be required to address it.

Leaves and twigs

8. The Court established a principle in Barker v Kyriakides [2007] NSWLEC 292 that for those of us who live among and enjoy the benefits of urban trees, some reasonable level of maintenance is to be expected. Even if damage to Ms Alshadaida’s ceiling has resulted from guttering or downpipes being blocked by leaves, this is not something for which the tree owner should be responsible. There are no circumstances in this matter that would lead me to deviate from this principle.

Pathway

9. I accept that tree roots are likely to have contributed to lifting and displacement of the concrete pathway alongside the dwelling, although the reactive clay soil was also identified by the applicant’s engineer as a factor. It is also possible that construction methods may have been inadequate for the site conditions. With the lack of investigation, and therefore the limited information before me, I find it reasonable to assume that the contribution by tree roots to the displacement is perhaps 50%.

10. As proposed by Ms Alshadaida, the existing path could be removed and a new path constructed. However, it is also possible that grinding of the existing path would restore it to a functional and safe state. Given the path’s location and purpose, it seems that grinding would be sufficient. Based on my earlier findings, it would be reasonable for the Elasmars to pay 50% of the cost of that work. If Ms Alshadaida wishes to remove and replace the path that is a matter for her, but the Elasmars would still only be responsible for the equivalent of half of the costs of grinding.

Concrete edging

11. Displacement of concrete edging to the garden bed in front of the dwelling appears to be aesthetic only. It does not appear to create any risk or significant nuisance. It does not warrant any interference by the Court.

Dwelling

12. Insufficient investigation has been undertaken to demonstrate to what extent roots may have contributed to cracking of the dwelling’s brick wall. Dealing with any repair of this element of the application would presumably me more complex than repairing the concrete path. There is nothing in the application to suggest the cost or extent of works required for any repairs. On the information before me, I cannot determine to what extent roots may have contributed to local soil drying and any resulting footing movement. Ms Alshadaida expressed concern that damage may worsen in future. However there is also no evidence that seasonal drying of soil in this area is likely to be any worse in future than it has been in the past, so I cannot see any benefit in making any orders that would try to prevent damage.

Stormwater pipes

13. There is no evidence that roots are blocking stormwater pipes. Ms Alshadaida says stormwater does not flow to the street. It is possible that pipes are blocked by leaves. Whatever the cause, it is an unknown at this point. I cannot be satisfied that stormwater issues are due to the respondent’s tree, so Ms Alshadaida is responsible for any repairs that she undertakes to the stormwater.

Fence

14. The base of the tree is close to the bottom of the colourbond dividing fence. At present minor displacement of the fence is observable, but this is aesthetic only and does not appear to affect the fence’s function or structural integrity. It does not warrant interference by the Court. The respondent is now aware of this issue and the potential for it to develop in future.

Conclusions

15. Having considered the benefits of the tree, the extent of any damage to the applicant’s property and the likely contribution by the tree to that damage, I find that tree removal would be disproportionate. There is also no reason within the Act to prune the tree at present. A root barrier cannot be installed this close to the tree as it would require the cutting of structural roots. There is sufficient evidence only that the tree has contributed to displacement of the concrete path, and no evidence that it is likely to cause further damage in future.

Orders

16. Therefore the court orders that:

1. The application is upheld.

2. The applicant is to obtain three quotes for grinding the concrete path between her dwelling and the common boundary to the north to achieve a safe and functional surface. The applicant is to provide copies of these quotes to the respondent within 30 days of the date of these orders.

3. Within 90 days the applicant is to engage and pay for a contractor to carry out the quoted works or, if she wishes, to remove and replace the concrete path.

4. The applicant is to provide the respondent with a copy of a paid receipted invoice to demonstrate completion of, and payment for, the works.

5. Within 30 days of receiving a paid receipted invoice for the works, the respondent is to pay the applicant 50% of the amount in the cheapest of the three quotes in order (2) for grinding the path.

6. If within 90 days of the date of these orders the applicant does not provide the respondent with a copy of a paid receipted invoice to demonstrate completion of, and payment for, the works, order (5) lapses.

7. Pursuant to s 64 of the Civil Procedure Act 2005 the respondent’s name is to be corrected on the application, from ‘Zaouk’ to ‘Elasmar’.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 01 July 2015