Eriksson v Malik

[2008] NSWLEC 1416

Land and Environment Court

of New South Wales

CITATION:	Eriksson and anor v Malik [2008] NSWLEC 1416
PARTIES:	APPLICANT Allison Eriksson and John Farkas RESPONDENT Pravin Malik
FILE NUMBER(S):	20714 of 2008
CORAM:	Brown C - Thyer AC
KEY ISSUES:	Trees (Neighbours) :- damage - injury - compensation
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	14/10/08
EX TEMPORE JUDGMENT DATE:	14 October 2008
LEGAL REPRESENTATIVES:	APPLICANTS In Person RESPONDENT In Person

JUDGMENT:

THE LAND AND ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Thyer AC

14 October 2008

20714 of 2008 Allison Eriksson and John Farkas v Pravin Malik

JUDGMENT

1 COMMISSIONERS: Ms Eriksson and Mr Farkas own the property at 8 Epo Place, Glenfield. A fibreglass in-ground swimming pool is located in the rear yard approximately 1 m from the common boundary with 4 Buka Place, Glenfield. Ms Eriksson and Mr Farkas stated that the pool was there when they purchased the property about 12 years ago. They believe the pool is around 17 to 20 years old. At the time of the hearing part of the eastern side wall of the pool (adjoining 4 Buka Place) was cracked in a horizontal direction and had opened up allowing a view of the soil and cavity behind the pool wall. The pool was empty except for a few centimetres of stagnant water.

2 There are two Pin Oak trees (Quercus palustris) growing in the backyard of the adjoining property to the east, 4 Buka Place owned by Mr Pravin Malik. The trees are situated about 1 m from the common boundary with 8 Epo Place. One tree is located near the centre of the adjoining pool and the other at the northern end of the pool. The trees were there when they bought the property, and Mr Farkas has pruned them in the past to reduce overhang of the pool and leaf fall into the pool.

The application

3 The application seeks removal of the two trees on the basis that they have damaged the swimming pool, and that injury may be caused to a person by falling branches.

4 The application states in relation to damage:

‘ The roots from both these trees have reached the pool and the pressure has bowed the pool wall and moved the filter .’

5 The application states in relation to injury:

‘ The trees may appear healthy at this time, but we are concerned that in the future the health of one or both of the trees could deteriorate to the point that an injury may occur from falling branches .’

6 Ms Eriksson and Mr Farkas also claim $3,500 in compensation as part cost in removing the existing fibreglass pool prior to installation of a new concrete pool. A quotation of $30,970 was provided for the new swimming pool. They have been advised that the existing pool cannot be repaired.

The response to the application

7 Mr Malik states that he inspected the swimming pool with his friend Mr Verma, in the company of Ms Eriksson and Mr Farkas in about May 2007. Mr Malik and Mr Verma have both provided written statements that there was no visible damage to the pool at that time.

8 In relation to Ms Eriksson and Mr Farkas’ claims that they have reports providing evidence that the trees have damaged the pool, Mr Malik states in his letter to Ms Eriksson and Mr Farkas dated 11 June 2008, ‘I spoke to you many times after that and requested you to give the above mentioned reports but you have not come forward with the written evidence.’

9 Mr Malik also states in his written response that ‘Ms Eriksson was more concerned about the falling leaves from the trees. Mr Farkas too had most of the time, complained about the falling leaves.’

The trees

10 No arborists reports were provided on the trees in question however we observed the two trees to be healthy Pin Oaks, which are probably at least 30 years old. They are both about 14 m tall with canopy spread of about 10 m and trunk diameter of about 0.4 m at breast height. The northern tree appears to have been topped at about 6 m height but has developed a well shaped crown and does not appear to have any structural weaknesses. Mr Farkas says that the topping did not occur in the time they have lived at their property. The southern tree has some included bark in the branch junctions at about 1.5 m and 2.5 m height but we do not consider that this presents a structural weakness that is likely to lead to branch failure. Some branch stubs were visible on the western side of the trees and Mr Farkas advised that they have done some pruning of branches that overhung their property.

The legislative framework

11 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 (the Tree Act), the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Tree Act are met by each tree which is the subject of the application before making an order regarding that tree. These tests are:

• has the tree caused damage to the applicant's property? (s 10(2)(a)),
• is the tree now causing damage to the applicant's property? (s 10(2)(a)),
• is the tree likely in the near future to cause damage to the applicant's property? (s 10(2)(a)),
• is the tree likely to cause injury to any person? (s 10(2)(b))

12 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

• is the damage or risk sufficiently serious to warrant the Court intervening and if so, what should the Court order?
• who should pay to carry out those orders?

13 Further, before determining an application, the Court is to also consider the matters in s 12 of the Tree Act.

Findings
Damage

14 No reports were presented on any of the damage and no trenches had been dug to see if roots of the Pin Oaks were the cause of any of the damage to the pool. We note the letter included in the application, from Ms Eriksson to the homeowner of 4 Buka Place (dated 27 February 2008) states, in part:

‘ Unfortunately, the pool has since cracked due to a broken pipe located along the fence line where the trees are located.’

15 The horizontal tear in the fibreglass of the lower section of the eastern wall below the safety step was open allowing a view of the soil and cavity behind the wall. The swimming pool wall around the tear also bulged into the swimming area. No tree roots could be seen in the tear in the pool wall. We did not see any damage to the upper section of the eastern wall that was described in the application as being bowed by the pressure of tree roots. The brick paving that that formed the pool concourse extending to the common boundary near the trees did not show any cracking, lifting or damage. The pool filter sits on a pre-formed concrete slab that was uneven and sunken into the ground on the side furthest from the trees. The adjacent brick edging of a garden bed was lifted and Ms Eriksson stated that the edging was damaged by a palm tree in the garden bed that they have previously removed.

16 On the basis of our observations and the information provided, we are not satisfied that any damage to the pool is likely to have been caused by the trees. In the absence of any tree roots that could be observed in the opening in the pool wall and any damage to the pool concourse we are satisfied that the bulging of the pool wall was likely caused by the soil in this area being saturated by water leaking from the pipe that runs from the skimmer box to the pool pump between the pool and 4 Buka Place. When the water was drained from the pool, the compensating pressure was released and the pool wall cracked. It is also possible that the age of the pool contributed to its failure. Therefore we find that the trees do not meet the first or second tests in s 10(2)(a) of the Tree Act.

17 Ms Eriksson and Mr Farkas stated that they intend to remove the damaged pool and replace it with a concrete pool. We consider that the excavation and construction of a new pool would include as a precautionary measure, the pruning of any roots (if any) that may be on their property and may cause damage in the near future. On that basis we find that neither of the trees meet the third test in s 10(2)(a) of the Tree Act.

Injury

18 No evidence has been presented to find that the trees are likely to cause injury to any person. Similarly, we observed no reason that the trees are likely cause injury to any person. On that basis we find that neither of the trees meet the test in s 10(2) (b) of the Tree Act.

Compensation

19 As we have found that the trees have not caused damage to property, no compensation is payable under s 9(2)(i) of the Tree Act.

Relevant s 12 considerations

20 We have found that the trees have not contributed to the damage to the swimming pool and that there is no basis for their removal. Pursuant to the relevant requirements in cl 12 we also find that under s 12(e), we find that the trees are a significant landscape element in Mr Malik’s property, providing an attractive visual feature and beneficial summer shade to his backyard. Also, the trees are visible from surrounding properties and streets, and contribute to the scenic values of the local area.

21 Pursuant to s 12(h), we find that the broken pipe has contributed to the damage to the pool (see par 16).

22 Pursuant to s 12(j) of the Act we note that Mr Malik inspected the pool at the request of Ms Eriksson and Mr Farkas in about May 2007. Although he did not see any damage at that time, he later made an application for removal of the trees to Campbelltown City Council, which was refused for lack of a report stating that the trees caused the damage. We also note that in his letter to Ms Eriksson and Mr Farkas dated 11 June 2008, he again invited them to provide such a report, and invited them to call him on his mobile phone should they have anything to discuss with him. On this basis we consider that if any evidence existed that the trees had caused the damage, Mr Malik is likely to have taken action to avoid further damage.

Orders

23 The orders of the Court are that the application is dismissed.

___________________

G T Brown
Commissioner of the Court

___________________