Fairfull v Nichols

[2009] NSWLEC 1247

Land and Environment Court

of New South Wales

CITATION:

Fairfull v Nichols [2009] NSWLEC 1247

PARTIES:

APPLICANT
Fairfull, James Thomas

RESPONDENT
Nichols, Darren and Anor

FILE NUMBER(S):

20313 of 2009

CORAM:

Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of tree; damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

14 July 2009

EX TEMPORE JUDGMENT DATE:

14 July 2009

LEGAL REPRESENTATIVES:

APPLICANT
J Fairfull (Litigant in Person)

RESPONDENT
D Nichols (Litigant in Person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

14 July 2009

20313 of 2009 James Fairfull v Darren and Donna Nichols

JUDGMENT

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

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by James Fairfull of 36 Jones Avenue Warners Bay against a tree located on a property owned by Darren and Donna Nichols at 38 Jones Avenue.

2 Lake Macquarie City Council was represented at the on site hearing by Mr Twevetch Khemananta , Tree Assessment Officer.

3 The applicant is seeking the removal of the tree, a mature Brachchiton acerifolius (Illawarra Flame Tree) as he contends that it has caused damage to his concrete driveway. He is also seeking compensation of a sum of $5,500.00 that being a quote for the removal and replacement of the driveway as well as costs incurred in the making of this application. With respect to the last item, Commissioners do not have jurisdiction to award costs.

4 The tree is located in a small garden bed in the corner of the respondents’ driveway. It is approximately 2 m from the boundary fence adjacent to the applicant’s driveway. It is healthy with a bifurcated but stable trunk, a feature not uncommon for this species.

5 Mr Fairfull purchased his property in 1983 and suggested that the tree was planted in the late 1980s, making it about 20 years old. The concrete driveway was in place when he moved in. It extends the entire width of that portion of his property and fronts a double garage. It is approximately 8 m wide and 6 m long. The driveway is considered to be more than 30 years old.

6 The driveway shows extensive cracking over its entire surface (the applicant’s engineer identified 11 cracks). There is only one expansion joint in the centre of the driveway. It runs perpendicular to the garage. There is a lift of about 80 mm at the garage side of the slab at the front gate. This section of the driveway abuts an extensive area of pebblecrete in which no cracking has occurred.

7 The applicant stated that the edge of the slab fronting the garage has lifted by about 20 mm; this has brought the driveway almost level with the floor of the garage. He also suggested that there was some lifting along the central section of the expansion joint. This was noted to be a lift of about 5 mm.

8 According to his sworn affidavit, in 2005 Mr Fairfull noticed cracks in the driveway. (The respondents purchased their property in 2006). In October 2008, the applicant noticed some lifting in one section of the driveway adjacent to the tree. He brought this to the attention of the respondents shortly after this.

9 In April 2009, the applicant engaged an engineer, Mr Stephen Savage, from CSG Engineers Pty Ltd, to inspect and report on the damaged driveway. An excavation through the concrete in the vicinity of the tree revealed a root of approximately 150 mm in diameter some 200mm below the underside of the100mm thick slab.

10 In response to the applicant’s engineer’s report, the respondents engaged their own engineer’s report from Barker Harle Consulting Engineers.

11 Both the applicant’s and the respondents’ engineers refer to the age of the concrete and the cracks being ‘shrinkage cracks’. The applicant’s engineer states that the damage on the side closest the to the tree is consistent with upward lift caused by the root but could not say whether the root had caused damage to other sections of the driveway. He stated that the cracking on the other side of the driveway was consistent with shrinkage cracking that would occur in most events. The applicant’s engineer also stated that earthquake or flood damage was unlikely.

12 The respondents’ engineer discussed the lack of expansion jointing, the lack of reinforcing, the pattern of cracking with respect to shrinkage and the likely sub-grade effects of flooding and drying.

13 The on-site inspection confirmed the extent of cracking and the presence of the root. It was interesting to note that there was no crack in the concrete in line with the root.

14 A number of matters under section 12 of the Act must be considered. The relevant clauses in this case are:

(a) The tree is wholly located on the respondents’ property.
(e) The tree makes a contribution to the scenic value of the land on which it is located.
(h)(i) Anything other than the tree that may have contributed to the damage. In this case, the age of the concrete, the fact that it has no reinforcement and only one expansion joint, the shrinkage cracks referred to by the engineers and it’s constant use are major contributing factors.
(h)(ii) Both parties have sought engineer’s reports. The respondent also sought the removal of the tree but this was refused by the Council as they considered there was inadequate proof that the tree had caused the damage to the driveway. Although the applicant noticed the cracking in the driveway in 2005, he failed to bring it to the attention of the respondents until late in 2008 after they had lived there for over two years.

15 Under section 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 injury to persons.

16 In this matter, a large root has been found under the driveway however the extent to which it has caused the damage is unproven but it is likely to be a contributing factor and therefore the Court has the jurisdiction to make an order.

17 The orders of the Court are:

1. The application to remove the tree is refused.

2. The application for compensation of the full amount of $5,500 for the removal and replacement of the driveway to be paid for by the respondents is refused but the respondents are to make a contribution.
3. The applicant is to obtain 3 quotes for the removal and replacement of the driveway with the cheapest quote to be accepted. The respondents are to pay 10% of the cost of removing and replacing the eastern half of the driveway (that is, the section between the existing expansion joint and the boundary fence) within 21 days of receiving a tax invoice for the completed works.
4. The works are to be carried out in accordance with the appropriate Australian standards and are to be completed within 3 months of the date of these orders otherwise the order lapses.
5. Only roots in the top 150 mm of the surface are to be removed. No roots are to be poisoned.

___________________

J Fakes
Acting Commissioner of the Court