Ebrahim v Agostini

[2017] NSWLEC 1403

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ebrahim & anor v Agostini & anor [2017] NSWLEC 1403
Hearing dates:	20 July 2017
Date of orders:	01 August 2017
Decision date:	01 August 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; debris; sufficiency of evidence
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Swimming Pools Act 1992
Cases Cited:	Barker v Kyriakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Makarios & Gada Ebrahim (Applicants) Eric & Fiona Agostini (Respondents)
Representation:	Applicants: M Ebrahim (Litigant in person); Ms I Girgis (Agent) Respondents: E & F Agostini (Litigants in person)
File Number(s):	81448 of 2017

judgment

1. COMMISSIONER: In 2002, the applicants purchased their Voyager Point property, which included an in-ground swimming pool in the south-eastern corner of the backyard.

2. The applicants contend that four trees in a row of Leyland Cypress growing on the northern side of the respondents’ property, and along part of the common boundary between the parties’ properties, have caused damage to the applicants’ property. The damage allegedly caused by the respondents’ trees includes displacement of the metal dividing fence, blocking of the pool filter, cracks in the pool, displacement of pool lights, cracked and loose pool pavers, and cracks in ornamental “rocks” used as landscaping/hardscaping features around the pool. They also claim that the trees are a climbing hazard and provide access to the pool. Additionally, they are concerned that the trees are so tall that any storm or strong wind could cause branches or entire trees to fall onto their property and thus potentially cause injury to anyone on it.

3. The applicants have applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the following orders to be made at the respondents’ expense:

• Remove the four trees, including any debris and all roots from the applicants’ property;

• repair and or replacement of paving and landscaping features;

• repair of the fence;

• engagement of a suitably qualified engineer to survey the pool in order to establish damage to the pool caused by pressure cracking as a result of tree root damage and subsequent repairs;

• reimbursement of $325.80 for the cleaning of the pool and related apparatus; and

• all works to be completed by 31 October 2017.

4. The applicants rely on a ‘Property Inspection Report’ prepared by Mr Paul Cavallo of IBI – Independent Building Inspections and dated 19 August 2016. Mr Cavallo was not present at the on-site hearing.

5. The respondents reject the applicants’ contentions on the basis of insufficient evidence and do not wish to remove the trees. According to the respondents’ evidence (Exhibit 1) the trees, and eight others, were planted in about 2009. In 2011, in response to complaints from the applicants the respondents removed eight of the trees. They suggest that rather than remove the trees, which they value for privacy and amenity, the applicants, at their expense, could install a pool blanket and skimmer box sock and or prune the trees. The respondents state that there is no contact between their trees and the fence and the displacement was due to palms growing on the applicants’ property but which have since been removed.

6. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

7. 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…”. In Robson v Leischke [2008] NSWLEC 152 at paragraphs [176] to [189] Preston CJ discusses the requirement for a clear nexus between the tree and the damage to property.

8. The hearing was heard on site; the parties and I inspected the alleged damage and the trees.

Damage

The fence and pool/garden lights

9. The applicants contend that the respondents’ tree have displaced up to four fence panels of the metal dividing fence between the parties’ properties and at least one of the vertical pool/garden lights between the pool and the fence. Photograph 2A in Exhibit B shows the fence and pool lights. Just visible in that photograph are the stumps of two palm stems. Photograph B2 in the respondents’ evidence shows one of those palms well above the fence line.

10. I observed the displacement to be away from the applicants’ property with the greatest deflection adjacent to the palm stumps; I also observed and pointed out a small worn section of paintwork on the upper rail of the fence, which may have been caused by the palm. However, as the palm has been removed this cannot be confirmed. I found the fence to be stable and in otherwise good order and fully functional. I observed the easternmost of the pool/garden lights to be displaced off vertical but otherwise firm. When the trees were inspected from the respondents’ side of the fence it was clear that there was no contact between any of the trees and the fence. This fact, and given the direction of the deflection away from the applicants’ property rather than towards it, would suggest that the respondents’ trees are not responsible for the deflection of the fence panels. Further, when asked, the applicants were unable to show me any roots or provide me with any evidence that the respondents’ trees had caused the displacement of the fence panels or the light stand. They restated that they relied on Mr Cavallo’s report and that his opinion, as an expert, should be sufficient in itself.

11. As there is no evidence to before me to establish the nexus between any of the respondents’ trees and the displacement of the fence and the pool/garden lights and thus to satisfy s 10(2)(a), this element of the application is dismissed.

Pool paving and landscaping feature ‘rocks’

12. Photograph 2A in Exhibit B shows the proximity of the ornamental landscape ‘rocks’ on the southern side of the pool surround to the respondents’ trees. Given the hollow sound when the largest of the rocks was tapped, the ‘rocks’ are likely to be artificial but nonetheless naturalistic in appearance and texture. The pool surround is paved with clay/brick pavers. Apart from the sections shown in photographs 2B - 2G in Exhibit B I observed a number of uneven sections and loose pavers well away from the trees, including on the step beneath the pool gate.

13. The applicants’ photographs of the paving in Exhibit B (2B, 2C, 2D, 2F, 2G) show cracks in the mortar between some pavers or absence of mortar and subsequent loosening of individual pavers, particularly around the edges of the pool. None of the pavers in the photographs are cracked. Photographs 2F and 2G appear to show cracking in mortar between pavers near the skim box; this is well away from the trees and on the opposite side of the pool.

14. The applicants were unable to show me any evidence of any roots or any other element of the respondents’ trees that would substantiate their claim that the damaged paving has been caused by the trees.

15. The applicants contend that roots from the respondents’ trees have caused the cracking of the ‘rocks’. In support of this contention they rely on Figures 3 and 4 on page 13 of Mr Cavallo’s report which have the respective captions, ‘Cracks in areas of the pool surrounds are likely the result of Foundation pressure placed on Tree roots’ and ‘areas of cracking’. The image in Figure 3 appears to identify fine hairline cracks in the surface of one of the ‘rocks’; Figure 4 includes two arrows pointing to portions of the ‘rocks’, the details of which are unclear. Photograph 2E in Exhibit B shows an obvious crack around the top edge of the largest corner ‘rock’.

16. While it is clear that there is some cracking of these elements, and thus some damage, there is no evidence that any of the trees’ roots have caused this damage. Mr Cavallo’s report is a compilation of photographs with no discussion or analysis of other possible causes such as material construction, age, wear and tear. The report does not include any method statement therefore it is not clear how Mr Cavallo came to the make the recommendations on p. 15 of his report [which may also relate to trees the subject of another application made by the applicants against trees on another adjoining property] which are (as written and in their entirety):

Recommendations

Due to fact that trees growth and property damage are reflective of one another, I would recommend the trees be cut back from the boundary 1-1.5m if not completely removed.

Trimming trees back from the boundary may assist the pool area achieving the required Non Climb Zone for safety, however the underground damage that trees create is the issue now and in the future.

A qualified arborist should be consulted to ensure methods of root control are possible To implement for damage prevention or tree removal is inevitable.

17. In regards to the respondents’ trees, Mr Cavallo’s report does not assist my determination of this matter.

18. There is no evidence before me sufficient to meet the requisite standards of satisfaction required by s 10(2) of the Trees Act for the Court’s jurisdiction to be engaged for either the pavers or pool landscaping. In addition there is no evidence to justify the making of an order that the respondents engage an engineer to investigate possible structural problems with the pool where there is no evidence, but rather an unsubstantiated concern, that the trees may have or might cause some damage to it. The onus is on an applicant to provide such evidence. Therefore the elements of the application concerning the pavers and pool landscaping are dismissed.

Pool filter and compensation claim

19. The applicants submit that the constant falling of debris from the trees onto their property and into the pool requires an excessive and unreasonable expenditure of time and money in order to clean and maintain their property.

20. Exhibit B includes a photograph (2I) showing foliage from the respondents’ trees as well as large leaves from another tree/ other trees in the pool skimmer box [probably from the applicants’ citrus tree]. The accompanying statement notes that this is an almost daily occurrence irrespective of the weather.

21. Exhibit B also includes invoices for the following items (dates and amounts shown):

Pump basket            8.3.2017   $24.95

Service call and chemicals      7.3.2017   $96.90

Automatic pool cleaner and brush   17.2.2017   $203.95

22. The application claim form includes an email from Rob [no surname given] from the PoolCare Company dated 14 March 2017. Rob states that he finds the pool equipment adequate for the size of the pool and a good chemical balance. He opines that the problems come from the neighbours’ trees with constant dropping of small ‘needles’ with some particles small enough to make it through the skimmer into the pump basket which has ‘ruined’ the pump basket and has the potential to damage the pump. He opines that the trees are huge and very close to the fence and pool “and I could only image trees that big would have a huge root system and may cause structural damage to the pool.” He strongly recommends checking the baskets to remove debris while the trees remain over the pool.

23. In his affidavit in Exhibit B, the first applicant states that he has replaced the ‘Kreepy Krawly” three times because the motor keeps burning out.

24. During the on-site hearing the skimmer box was inspected. In it was some minor debris from the respondents’ trees; the majority of the leaves were larger leaves from the applicants’ citrus tree, which is also close to the pool.

25. I am satisfied on the evidence before me that debris from the respondents’ trees has, on the balance of probability, contributed to the damage to the pool filter box. In Robson v Leischke at [179] Preston CJ notes that the tree which is the subject of the application does not need to be the sole cause of the damage in order to engage the court’s jurisdiction. On this basis I find s 10(2)(a) is met and I can consider what, if any, orders should be made under s 9 of the Trees Act. The making of orders requires the consideration of relevant discretionary matters under s 12. I put no weight on ‘Rob’s’ opinion about the roots of the respondents’ trees.

26. The respondents value the trees for the screening, privacy and other amenity values they afford their property as well as providing some visual amenity from other nearby properties. While the applicants consider daily emptying of the skimmer box to be a burden, I am not persuaded by any of the submissions that this is unreasonable especially when leaves of their own tree/s are also captured in the skimmer box. On balance, removal of the trees seems a disproportionate response when a simple maintenance option is available. As a matter of discretion no orders will be made for the removal of the trees on the basis of debris. The court has a long standing Tree Dispute Principle published in Barker v Kyriakides [2007] NSWLEC 292 which states:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

27. There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree on this basis; and so it is with this matter.

28. In regards to compensation/ reimbursement, there is no evidence that the service call and pool chemicals were anything more than what is usually required for the maintenance of swimming pools. Similarly there is no evidence proving the nexus between the respondents’ trees and the replacement of the pool cleaner. While Rob states that the fine debris ‘ruined’ the basket, there is no evidence to corroborate this. It is unknown how old the pool filter basket was and whether its replacement is part of routine pool maintenance. The item is relatively inexpensive.

Potential injury

29. Neither party engaged an arborist to inspect the trees. With the arboricultural expertise I bring to the court I saw nothing that would lead me to conclude that branch failure or whole tree failure were anything other than a remote hypothetical possibility and this element of the application is dismissed.

30. In regards to someone using the tree to climb into the pool enclosure, the Trees Act has nothing to do with this issue. The Swimming Pools Act 1992 and relevant Australian Standards would, in my view, be the appropriate starting point.

Orders

31. As a consequence of my findings, the Orders of the Court are:

1. The application is dismissed

_________________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 01 August 2017