Evans v Wylandra Nominees Pty Ltd

[2010] NSWLEC 1331

Land and Environment Court

of New South Wales

CITATION:

Evans & Anor v Wylandra Nominees Pty Ltd [2010] NSWLEC 1331

PARTIES:

APPLICANTS
Mr B Evans
Ms V Wells

RESPONDENTS
Wylandra Nominees Pty Ltd

FILE NUMBER(S):

20717 of 2010

CORAM:

Fakes C - Galwey AC

KEY ISSUES:

TREES (NEIGHBOURS) :- damage to property; injury to persons; removal sought; pruning allowed; quality of expert witness reports

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006
Uniform Civil Procedure Rules 2005

DATES OF HEARING:

26/11/2010

EX TEMPORE JUDGMENT DATE:

26 November 2010

LEGAL REPRESENTATIVES:

APPLICANTS
B Evans [litigant in person]
V Wells [litigant in person]

RESPONDENTS
P and A Ward [agents]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C Galwey AC

26 November 2010

20717 of 2010 Evans & anor v Wylandra Nominees Pty Ltd

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

1 COMMISSIONERS: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in West Pymble against the owners of a tree growing on an adjoining property.

2 The applicants are seeking the removal of the tree as they contend that it has caused damage to their property and could continue to do so. They are also concerned that it could cause injury to any person. The applicants reside in the dwelling and the property is also used as a family day care centre.

3 The damage they allege the tree has caused or will continue to cause is:

• Lifting by roots of a concrete path between the tree and the garage. The path is designated as an emergency exit from the rear portion of the property that is used for child-care purposes.
• Dislodgment of sections of a low brick retaining wall along the edge of the pathway by root growth;
• Cracking of the internal walls of the dwelling and the external wall of the garage as a result of the roots extracting moisture from the soil beneath the house and garage;
• Cracking of tiles over the garage and other roofing material over a front room of the dwelling by the falling of dead branches. This they say has led to water damage and subsequent staining of sections of ceiling.

4 The applicants consider the risk of injury to be from falling branches and fruit and from the tripping hazard created by the lifting of the concrete path.

5 The tree is a mature Eucalyptus pilularis (Blackbutt) on the north-eastern side boundary of the respondents’ property. As the tree straddles the boundary, the applicants were directed to obtain a survey plan to satisfy the Court that the tree was substantially on their neighbours’ property. We are satisfied that this is the case and we have the jurisdiction to proceed.

6 The tree is healthy with no obvious structural defects. It has the typical form and habit of a late mature Eucalypt. It has a small percentage of dead wood that is typically located at the end of the branches. We saw no evidence of the failure of live branches nor did the applicants state that live branches had failed from the tree. Given the location and size of the tree we consider that it is possibly a remnant of the original vegetation that is likely to be the critically endangered ecological community of Blue Gum High Forest.

7 The applicants obtained a report from MAJ Consulting Pty Ltd – structural and civil engineers. This report identifies a number of issues and areas of damage and it forms the basis of many of the applicants’ concerns. We inspected the areas highlighted in the report.

8 We inspected the lifted section of the concrete pathway between the garage and the tree. There was a considerable amount of debris on the path. Whilst no roots were shown to us, we are prepared to accept on the balance of probability that the lifting is likely to be caused by the expansion of one or more structural roots of the Blackbutt. However we also noted the generally poor condition of the concrete of a similar age at the front of the dwelling. Sections of this were cracked and lifted.

9 We also noted the dislodgment of several bricks in the low brick retaining wall in the vicinity of the base of the tree. Similarly, we are prepared to accept that this is partly due to root growth.

10 We were shown a horizontal crack on the south-western corner of the garage along the damp-proof course and in proximity to a downpipe and storm water outlet. We saw no other internal or external cracks in the brickwork of the garage above the lifted paving or anywhere else in the wall that would suggest lifting by roots. There was one minor crack in the concrete floor of the garage originating from the centre of the garage door opening but this was not near the tree in question.

11 We saw staining of some ceiling panels in the garage. This was alleged to have been caused by the entry of water following the breaking of a tile by falling dead wood. The respondents contend that there were broken tiles on the roof for a considerable time before the applicants purchased the property. They stated that the previous owner repaired the tiles before the house was sold. However, the applicants stated that they had replaced damaged tiles since they have owned the property. We noted that the gutters of the garage appeared not to have been cleared of leaves for some time.

12 Inside the dwelling we were shown several cracks arising from the corners of windows and doorways. These were horizontal, vertical and diagonal in direction and were seen in all parts of the house including the side furthest from the Blackbutt. The applicants stated that these were repaired when they moved in about 2 years ago but have opened up since. We noted some separation between some of the cornices and the walls in some rooms.

13 The original house dates from 1962 and an extension was added in the early 1990s. We noted cracks above some of the doors and windows in the newer parts of the house.

14 The area used in the child-care operation as an outdoor play area is an existing paved area at the rear of the house that is partly overhung by the tree. The applicants submitted a letter from the Ku-ring-gai Council family day care co-ordinator. In this letter the co-ordinator agrees with the applicants that the tree poses a risk of injury to the children in the applicants’ care and would support any application to have the tree removed. We note that the author of this letter is not a council tree management officer and their opinion can be given little weight in our determination of this application.

15 Returning to the engineer’s report. The report is a 2 page letter with photographs attached. The author of that report, Mr Jaroszewicz was unable to attend the hearing but advised his clients that the report complies with the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 (UPCR). The author’s curriculum vitae was submitted in accordance with the Code of Conduct.

16 The report states in part:

An internal structural survey of the dwelling, revealed crack damage to house walls, refer to Photographs 16-24. Such crack damage is a result of differential footing settlement as a result of drying and shrinkage of founding reactive clays. Contributing the shrinkage of clays is the close proximity of the above mentioned tree.
You are concerned of the safety hazard of falling branches from the subject tree onto your property and injuring you and your family.
We conclude that the tree is too close to your garage. If left to grow it will very likely damage the garage wall and further damage the house walls.
We do not consider localised tree root removal and in ground barriers as a suitable remedial action to prevent footing settlements because the tree is too close to your garage wall…..we recommend that the tree be removed and the stump ground out.

17 The report also considers other areas of concern including a down pipe at the ‘front’ corner of the garage connected to a storm water drain. The applicants reported that this was not discharging onto the street. The engineer concludes that the drain may be damaged or blocked by tree roots, perhaps from other smaller trees on the western boundary. He considers that given the current size of these smaller trees they are unlikely to be a structural hazard to the house but could be if they are allowed to grow larger. He considers that the removal of these trees may be necessary to prevent differential footing settlement.

18 Section 5 of Schedule 7 of the UPCR relates to expert witness reports. It states:

(1) An expert’s report must (in the body of the report or in an annexure to it) include the following:
(a) the expert’s qualifications as an expert on the issue the subject of the report,
(b) the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed),
(c) the expert’s reasons for each opinion expressed,
(d) if applicable, that a particular issue falls outside the expert’s field of expertise,
(e) any literature or other materials utilised in support of the opinions,
(f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out,
(g) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).
(2) If an expert witness who prepares an expert’s report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report.
(3) If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.
(4) If an expert witness changes his or her opinion on a material matter after providing an expert’s report to the party engaging him or her (or that party’s legal representative), the expert witness must forthwith provide the engaging party (or that party’s legal representative) with a supplementary report to that effect containing such of the information referred to in subclause (1) as is appropriate.

19 With respect to the MAJ Consulting report we consider that it is deficient in may respects and largely does not comply with the requirements of s 5, Schedule 7 of the UPCR. In particular, the report does not indicate how the author came to his opinions. There is no indication of any investigation of roots, no information on soils, no reporting of any building levels or anything else that would support the engineer’s opinion. The report makes no mention of the large and established trees on the applicants’ property. On the whole we find that the report is unsubstantiated opinion of little if any assistance to the Court.

20 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is likely to cause injury to any person.

21 In this regard we are satisfied, on the balance of probability, that the expansion of a root has caused lifting of a section of concrete paving beside the garage. As this is a designated emergency exit we consider it poses a tripping hazard and therefore could cause injury to anyone using it. We also consider that falling dead wood has damaged roof tiles and may continue to do so. Similarly, the falling of dead wood could cause injury to any person.

22 However, we are not satisfied on the evidence before us that the roots from this tree have directly or indirectly caused the cracking of the internal walls of the dwelling.

23 Therefore as several of the tests under s 10(2) are met, the jurisdiction is enlivened and the Court may make an order under s 9.

24 Before making an order, the Court must consider a number of matters under s 12 of the Act. The relevant clauses in this case are:

(a) Approximately two thirds of the base of the tree is located on the respondents’ property and therefore satisfies the jurisdictional requirement that the tree be substantially on adjoining land.
(d) As previously stated, it is possible that the tree is a remnant that may form part of the critically endangered ecological community of Blue Gum High Forest and therefore is of high biodiversity value. Even if it isn’t part of the CEEC it will contribute to the local ecosystem and to biodiversity.
(e) The tree contributes to the scenic value of the land on which it is growing.
(f) The tree can be seen from a nearby local distribution road and forms part of the overall canopy which gives the locality its landscape character. It thus has intrinsic value to public amenity.
(h)&(i)(ii) Other factors. If we are wrong on the contribution of the tree to the internal cracking of the dwelling there are several other factors that could contribute including the presence of mature trees on the applicants’ property. These are as close to the northern and eastern parts of the dwelling as the Blackbutt. The house and garage are almost 50 years old. We have no evidence of the reactivity of the soils however if they are reactive, the respondent contends that the long-term drought and the recent drought-breaking rains will also influence any soil movement. The backup of the stormwater and the build up of leaves in the gutter may also account for some of the staining of the garage ceiling.

25 Returning to the orders sought by the applicants, s 9 of the Act allows discretion in the making of orders. The Court is not constrained by saying a simple ‘yes’ or ‘no’ to the applicants’ wishes. On balance we do not consider that the evidence before us justifies the removal of the Blackbutt however we do consider that some action should be taken to minimise the risk of injury, potential damage to the roof and to rectify the problem with the pathway.

26 With respect to the pathway, we consider that the pavement was likely to have been raised when the applicants purchased their property and that the age of the concrete is a contributing factor and therefore the amount payable by the respondents has been discounted.

27 The section of concrete to be replaced is the 3m lifted section (measured between expansion joints). A new expansion joint should be cut 1m to the north-west (ie towards the applicants’ rear gate). The replacement material should be flexible to enable the creation of a safely ramped section of pavement that protects any structural roots of the tree that are likely to exist beneath the pavement. Bitumen or asphalt is the preferred material. No roots are to be cut or damaged during this operation.

28 Therefore the Orders of the Court are:

1. The application to remove the tree is dismissed.
2. The respondents are to engage and pay for an AQF level 3 arborist to remove all dead wood down to 25mm in diameter from the parts of the tree that overhang the applicants’ property to a distance of 3m inside the respondents property (measured from the common boundary).
3. The work is to comply with AS4373:2007 – Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
4. Orders 2, 3, 6 and 7 are to be carried out annually within 2 weeks either side of the anniversary of this hearing.
5. The initial pruning is to be completed within 30 days of the date of these orders.
6. The applicants are to provide all reasonable access for the works to be carried out in a safe and efficient manner. No children should be in the play area when these works are being carried out.
7. The respondents are to give the applicants at least 3 working days notice of the commencement of the works.
8. The applicants are to obtain 3 quotes for the removal and replacement of 4m of the lifted section of concrete pathway as described in para 26 of the judgment and 3m of the low brick retaining wall. No roots or parts of the trunk are to be severed or damaged during this operation. The quotes are to be obtained within 30 days of the date of these orders.
9. A copy of the quotes is to be given to the respondents. The respondents have 7 days from the receipt of those quotes to advise the applicants on their choice of quote.
10. The path and retaining wall works are to be completed within 90 days of the date of these orders otherwise order 11 lapses.
11. The respondents are to reimburse the applicants 60% of the cost of the works within 21 days of the receipt of a tax invoice for the completed works.

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