Bowden v Sverkidis
[2015] NSWLEC 1410
•25 September 2015
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: Bowden v Sverkidis & anor [2015] NSWLEC 1410 Hearing dates: 25 September 2015 Date of orders: 25 September 2015 Decision date: 25 September 2015 Jurisdiction: Class 2 Before: Durland AC Decision: The application is dismissed.
Catchwords: Trees (Disputes Between Neighbours); jurisdictional tests; damage; trees on boundary; reimbursement of remediation costs; application dismissed Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29
Yang v Scerri [2007] NSWLEC 592Category: Principal judgment Parties: S Bowden (Applicant)
A Sverkidis (First Respondent)
J Sverkidis (Second Respondent)Representation: S Bowden, litigant in person (Applicant)
Solicitors:
K Morris, Macedone Legal (Solicitor for the Respondent)
File Number(s): 20529 of 2015
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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This is an application pursuant to section 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) concerning three trees located on the respondent’s property at Blakehurst.
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The trees are identified as Trees 1, 2 and 3 on the application and are located close to the common side boundary with the applicant’s property.
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There are two single skin brick walls, located approximately 20mm apart, that run along the length of the common side boundary between the applicant’s and respondent’s properties. It appears that the walls are separate structures and that one is located on the respondent’s property and one on the applicant’s property.
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The respondent’s property is higher than the applicant’s property for much of the length of the common boundary and the wall on the respondent’s property may serve as a retaining wall along the lower portion. The depth of the wall below the existing ground level on the respondent’s property is not known.
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The applicant is seeking the following orders –
The removal of Tree 1 (x Cupressocyparis leylandii – Leyland Cypress), Tree 2 (Murraya paniculata - Orange Jessamine) and Tree 3 (x Cupressocyparis leylandii – Leyland Cypress).
That the respondent engage a qualified Arborist to remove the three trees and pay all associated costs.
That the respondent pays for a professional builder to repair the damaged masonry boundary wall, gate arch, brick pier and stormwater line.
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The provisions of section 10(2) of the Trees Act require that I be satisfied that one or more of four tests are met with respect to each tree subject to the application, before I have jurisdiction to consider the application.
These tests are:
Has the tree caused damage to the applicant’s property?
Is the tree now causing damage to the applicant’s property?
Is the tree likely in the near future to cause damage to the applicant’s property?
Is the tree likely to cause injury to a person?
Only if one or more of the tests is satisfied can I move on to consider what orders, if any, I should make in respect to each of the trees.
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The applicant contends that roots from the trees are the cause of cracking in the brick wall that forms the side boundary fence on her property. Additionally Mrs Bowden contends that the brick work across the top of the side gate and the brick pier adjacent to the side gate on her property has moved and cracked due to the tree roots. The applicant also contends that the movement in the brick pier has caused the cracking of the downpipe located within that structure subsequently causing dampness at the base.
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An estimate from A & D J Building Services in relation to the remediation of the boundary wall, gate arch, gate pier and stormwater line for the amount of $26,500 has been included in the application. This estimate does not include the removal of the three trees.
The trees
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Tree 1 is semi mature and has an approximate height of 7 metres, approximate canopy width of 4 metres and a trunk diameter of approximately 250mm. The trunk of this tree is 200mm from the boundary wall and (as with the other two trees) is located within a slightly raised garden bed that is between 500 and 700mm wide and that runs along the boundary wall. Tree 1 is located approximately 1.5 meters from the masonry pier and gateway arch that the applicant opines has been damaged by tree roots.
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Tree 2 is a mature multi stemmed shrub that is located approximately 3 metres from the damaged masonry structures.
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Tree 3 has been substantially suppressed by Tree1 and has a trunk diameter of approximately 80mm. Tree 3 is located in between Tree 1 and Tree 2.
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With the expertise that I bring to the Court as a qualified and professional Arborist I am of the opinion that given the size of Trees 2 and 3 and the distance between those trees and the structures subject to the application, it is highly unlikely that their roots would be contributing to the damage.
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An arborist, Mr Cromack, prepared a report for the respondent relating to Tree 1. In Mr Cromack’s opinion, given the size of the tree and the setback from the damaged structures, it is not likely that roots from this tree have caused or contributed to the damage to the structures on the applicant’s property. It is Mr Cromack’s opinion that woody roots from Tree 1 that could cause the damage would not be located in the vicinity of the damaged structures.
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Mr Cromack’s analysis of the situation is somewhat limited in that he did not also consider the level difference of the two sites or the soil type. Mr Cromack did not investigate the likelihood of the roots being located at the depth that would be required for them to be a cause of the damage. Additionally Mr Cromack did not undertake an analysis of the location of the footings of the wall on the respondent’s property and what impact (if any) that is likely to have on the roots impacting the structures on the applicant’s site.
The damage
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Mrs Bowden (the applicant) bought to the Court’s attention the displacement of the top section of the brick pier adjacent to the side gate, the vertical cracking in the mortar gate arch, minor cracking along the horizontal mortar joints in the masonry boundary wall and signs of excessive moisture above the arch and at the base of the pier and gate.
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The applicant contends that tree roots have caused the movement in the pier and that in turn has caused the joints in the stormwater pipe located within the pier to break apart thereby releasing water into the centre of the column and exiting into the ground at the base of the gate.
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The applicant has based her opinion that it is the tree roots that have caused the damage to her property due to the proximity of the trees to the damaged structures.
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In the report prepared by Portes Structural Engineers for the respondents the conclusion is that the brick pier and gate arch are unstable due to the failure of the foundation and mortar caused by excessive moisture from the broken stormwater pipe. It is also stated in the report that the top of the brick pier and an attached portion of the brick arch over the gate has moved towards the respondent’s property (the lower portion of the pier remains vertical) therefore indicating that it is not pressure from the tree roots that has caused the movement. Mr Portes considers that the most likely cause of the brick pier failure ‘is the loss of foundation shear capacity due to continuous change in moisture content due to the stormwater pipe failure’.
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Ms Morris, Solicitor representing the respondent, contended that as there is a gap between the two brick boundary walls and as the wall on the respondent’s property is not damaged it is unlikely that the tree roots are causing the structural issues that are presenting in the pier, gateway arch and stormwater pipe on the applicant’s property.
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The contention at (19) is noted however I make the comment that it is not clear as to the extent or condition of the wall on the respondent’s property below the ground level.
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Directly adjacent to the base of the trees on the respondent’s property is a low rock edging that forms the boundary of the garden bed in which the trees are growing. Ms Morris bought to the Court’s attention that that in her opinion this edging was likely to be less structurally sound than the masonry boundary wall on the applicant’s property and was much closer to the trees however was not compromised. The Court did note that one large stone was displaced however in the most part the low rock edging was intact.
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There is no evidence provided by the applicant that demonstrates that it is the roots from the trees growing on the respondent’s property that have caused damage to her property. No exploratory excavation has been undertaken by either party nor is it clear from what was sighted or the evidence before me as to what has caused the movement in the brick structures on the applicant’s property.
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The difference in levels of the two properties, the size of the trees, likely size and location of root systems and the lack of damage to the brick wall on the respondent side of the boundary all provide reasons to be uncertain that it is the roots from the three trees that have caused or contributed to the damage.
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In Smith and Hannaford v Zhang & Zhou [2011] NSWLEC 29 Justice Craig discussed at [61 and 62] the obligation created by S10 of the Act for the Court to be satisfied of a causal nexus between the tree subject of the application and the damage claimed by the applicant. In other words, more than a theoretical possibility is required to engage the power under the Act to make an order.
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Based on what I have observed and what has been evidenced I am not satisfied to the extent required by s 10 (2) that the any of the three trees are contributing partially or wholly to the movement in the brick structures on the applicant’s property.
Likely future damage
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In relation to possible future damage guidance is taken from Yang v Scerri [2007] NSWLEC 592 where the Court applied a ‘rule of thumb’ that the appropriate timeframe for ‘in the near future’ is a period of 12 months from the date of the hearing.
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Whilst it is acknowledged that it is a possibility that Tree1 may contribute to damage to structures if it becomes larger I am not satisfied that damage is likely to occur in the near future (if at all).
Orders
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As a result of the foregoing the Orders of the Court are as follows:
The application is dismissed.
L Durland
Acting Commissioner of the Court
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Amendments
14 October 2015 - Minor formatting
Decision last updated: 14 October 2015
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