Ekermawi v Bennett

[2009] NSWLEC 1398

Land and Environment Court

of New South Wales

CITATION:

Ekermawi v Bennett [2009] NSWLEC 1398

PARTIES:

APPLICANT
Sam Ekermawi

RESPONDENT
Keith and Leanne Bennett

FILE NUMBER(S):

20637 of 2009

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Removal of tree, compensation, damage to property and risk of injury.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING:

26 November 2009

EX TEMPORE JUDGMENT DATE:

26 November 2009

LEGAL REPRESENTATIVES:

APPLICANT
Sam Ekermawi (litigant in person)

RESPONDENT
Mr P Mitchel (solicitor)
SOLICITOR
Johnsons Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

26 November 2009

20637 of 2009 Sam Ekermawi v Keith and Leanne Bennett

JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Sam Ekermawi of 120 Nuwarra Road Moorebank against the owners of a tree growing at 122 Nuwarra Road. The owners of that property are Leanne and Keith Bennett. Mr Peter Mitchell of Johnsons Solicitors represented the Bennetts. Mr Ian Lacy, Legal Services Co-ordinator and Mr John Nichols, Landscape Assessment Officer, from Liverpool City Council (LCC) were in attendance. The applicant had subpoenaed Mr Nichols to attend the hearing.

2 In the application before the Court, the applicant is seeking the removal of the tree and compensation of a sum of $1667 for damage to a car and between $15,000 and $22,371 for damage to his house. The applicant is seeking these orders as he contends that the tree has caused damage to his property and he is concerned it will continue to do so. He also contends that the tree poses a risk of injury to people.

3 The tree is a mature Eucalyptus sp identified by the respondents’ arborist Michael Clark as E. microcarpa (Grey Box) however this is highly unlikely due to the natural distribution of that species of Eucalypt and the bark type. The tree is most likely a Eucalyptus tereticornis (Forest red Gum) that is native to the area. The tree is growing near the south-eastern corner of the front of the Bennett’s property. A significant part of the root zone is paved with concrete/pebblecrete. Mr Clark estimates the tree to be 21 m tall.

4 At the time of the on site hearing the tree had a healthy canopy and there were no obvious structural defects. There was evidence of recent pruning of quite large branches, especially on the north-western side, that is, over the main driveway. This observation was confirmed by Mrs Bennett who stated that the tree had been pruned some months before. It has generally been pruned in accordance with AS4373:2007 Pruning of Amenity Trees. Liverpool City Council had approved the pruning.

5 Mr Clark prepared the arborist’s report on 9th September 2009 and in his report he concludes that the tree is healthy, has no significant defects and has a safe useful life expectancy of between 15-40 years.

6 The base of the tree is at least 15 m from the southern (closest) corner of the applicant’s house; that is, the applicant’s house is to the north of the tree. There are no branches overhanging the applicant’s property; the closest branch is probably at least 12 m away.

7 The damage said to have been caused to the car that forms part of the claim for compensation, occurred during a storm on 31st January 2008. The SES removed a large section of the tree that had fallen towards the applicant’s house. Photographs taken at the time show some branches on the applicant’s property with the majority of the debris being on the driveway of 122 Nuwarra Road. There is no evidence of any damage to any vehicle parked on the applicant’s property. The photographs show a car parked in front of the garage of 122 Nuwarra Road that is covered by branches.

8 Whilst this event undoubtedly occurred, the respondents did not own the property at the time. The Bennetts were notified of the event by their real estate agent. The respondents took possession of their property at settlement on 27th March 2008. Therefore any claim for compensation relating to damage that may have been caused to the applicant’s property before this time cannot be awarded against the respondents. Mr Mitchell stated that the applicant had received this advice from Senior Commissioner Moore at the directions hearing on 20 October 2009.

9 With respect to damage to the house. The applicant contends that water running off the respondents’ property, combined with reactive clay soils, has caused damage to his house. When questioned as to how the tree has contributed to this damage, Mr Ekermawi drew my attention to eucalyptus leaves in a surface drain at the front of his house. He contends that the leaves from the tree blocked the storm water system thus leading to water backing up and damaging his house.

10 Mr Ekermawi drew the Court’s attention to the documents and photographs tendered by him. It appears that Mr Ekermawi had lodged a claim for the damage to his house with his insurers. A document ‘Progress Report No 2’ dated 7 November 2008 from GAB Robins Australia Pty Ltd – chartered loss adjustors, states that:

“The engineers report received from Stubbs Cruickshank Consultants reporting on the cause of the cracking throughout the house is attached for your reference and consideration of the claim.

We refer you to item 3 of the report – Determination:

The engineer’s opinion is that the differential movements responsible for the internal and external damages are attributable to the footing foundation embedments and the floor front couches which were mentioned within the report, and as a result we believe that the damage is not covered by the policy, under the general exclusions part – ‘structural defects or faulty workmanship, settling, shrinkage or expansion’, and declinature of the claim is therefore recommended.

11 In a 5 page letter to Mr Ekermawi from Australian Alliance Insurance dated 18 February 2009 written as a review and “Final Decision”, the author outlines the issues and the steps taken by all parties. There is no mention in this letter or the progress report in (10) of leaves of any kind or any mention of a tree or trees. Therefore these documents don’t provide any assistance to the applicant.

12 At the on site hearing, the applicant withdrew his application for compensation. As a result of this Mr Mitchell notified the Court of his intention to make an application for costs associated with time spent on preparing his clients’ case with respect to the compensation claim. This is a matter beyond the jurisdiction of Commissioners.

13 With respect to injury to persons, the applicant contends that the tree is dangerous. Photographs of small branchlets blown onto the applicant’s property were tendered as evidence of this. The applicant raised the issue that the respondents had received permission from the council to remove the tree and therefore this supports his assertion that the tree should be removed. In an email from Mr Nichols of LCC to Mr Clark dated 9 September 2009, Mr Nichols states: ‘The owners have been advised…and there is no order from council to remove the tree if they do not wish to.’ The tree was then pruned.

14 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination.

15 The Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are:

(a) The tree is wholly located on the respondents’ property.
(d) The tree appears to be a remnant of the original plant community and, as such, has value for biodiversity and to the local ecosystem.
(e) It contributes to the scenic value of the land on which it is growing.
(f) It has value to public amenity as it is clearly visible to passers by. Nuwarra Road is a major local road.
(h)(i) Anything other than the tree that may have contributed to the damage. Approximately half of the applicant’s property, on the eastern side, is paved with concrete. The paved area is approximately 12m x 8 m with an overall fall towards the applicant’s house to the surface drain that runs along the front wall of the house. The respondents’ property has a larger area of paving that slopes towards their house and garage and that of the applicant. Therefore, with respect to water damage, the extent of the paving and the fall of the land are likely to result in significant runoff towards the applicant’s house.
The insurance report of 18 February refers to a leaking pipe beneath the applicant’s house and the other factors mentioned in (10).
(h &i) (ii) Steps taken by either the applicant or the respondents. Whilst strictly speaking the issue of water runoff has nothing to do with the tree, the respondents have installed diversion systems, including a concrete hob, to divert water from their property away from the applicant’s property. The respondents have had the tree inspected and pruned even though there are no branches that overhang the applicant’s property.

16 Returning to s 10(2) of the Act. Based on the evidence produced at the hearing, the condition of the tree and its location with respect to the applicant’s property, there is nothing that I observed that leads me to conclude that any of the tests in s 10(2) are sufficiently satisfied to enliven the jurisdiction.

17 With respect to the leaves in the applicant’s surface drain, whilst it is possible for leaves to blown some distance, the adopted tree dispute principle in Barker v Kyriakides [2007] NSWLEC 292 is relevant here. In Barker, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This is appropriate in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide.

18 The orders of the Court are:

1. The application in its entirety is dismissed.

______________________________

Commissioner of the Court