Gaicheri v Hanley

[2009] NSWLEC 1159

Land and Environment Court

of New South Wales

CITATION:	Gaicheri v Hanley [2009] NSWLEC 1159
PARTIES:	APPLICANT M Gaicheri RESPONDENT E Hanley
FILE NUMBER(S):	20084 of 2009
CORAM:	Moore SC - Fakes AC
KEY ISSUES:	TREES (NEIGHBOURS) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
CASES CITED:	Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280
DATES OF HEARING:	21 April 2009
EX TEMPORE JUDGMENT DATE:	21 April 2009
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC
FAKES AC

21 April 2009

09/20084 Gaicheri v Hanley

JUDGMENT

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

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006. At the commencement of the hearing, without objection from the respondent, we granted leave to amend the application so that the application was being made in the name of the owner of 5 Stanley Street, Queens Park - being the mother of Mr Gaicheri who had originally made the application.

2 The application is in two parts. First, it seeks an order for the costs of remediation of damage that has already been occasioned to swimming pool plumbing together with the re-laying of a number of pavers and remedial works to be undertaken to a 100 mm clay sewer pipe running along the boundary of (but inside) 5 Stanley Street adjacent to the boundary with 7 Stanley St and also an order seeking works to prevent future damage being occasioned to the plumbing located on 5 Stanley Street.

3 There are two trees involved in the application. The first is a Chinese Tallowood which is located some 1.5 m from the south-western corner of the dwelling erected on 5 Stanley Street approximately 300 mm from the boundary fence within 7 Stanley Street. The tree is some 10 m or so tall and appears to be in good health.

4 In the swimming pool plumbing filtration structure that is located adjacent to the south-western corner of 5 Stanley Street, a major structural tree root is located. This root has been partially severed as a result of the investigation works undertaken to identify the damage to the pool plumbing. This root is at least 150 mm in diameter. We are satisfied, from the location of the root and the bark characteristics of it, that this root is from the Chinese Tallowood tree.

5 The roots that are in the vicinity of the pool skimmer box appeared to be two distinct types. The first are some dead roots from a tree which has been removed some significant time in the past and that was located on the boundary (partially on one property and partially on the other). However, the live roots that are located in the vicinity of the skimmer box and its plumbing come from a second tree being a Cypress located on 7 Stanley Street. This tree abuts the fence and appears to have a diameter, at breast height, of approximately 200 mm. We are satisfied the live roots in the vicinity of the skimmer box come from this tree. Between the skimmer box and the house, there are a number of deformations to the paving that have been occasioned by tree roots that might have come from either of these trees.

6 The applicant has had an investigation undertaken of the roots in the sewer pipe and this is provided to us in material from a plumbing company, Water King Plumbing Service Pty Limited, which undertook a pipe camera inspection of the pipe. This records that there are a number of locations where roots are intruding into the sewer pipe.

7 The claim for the rectification of the past damage is based on the number of quotations that have been provided to us and is of the order of $35,000. The application also includes a claim for the lodgement of the application with the Court together with the costs of various reports and the like including that from Water King. As matters of costs are outside the jurisdiction of Commissioners hearing and disposing of applications under the Act, we are confining ourselves to consideration of the claim for rectification of the past damage.

8 We are satisfied that the tree root that we have inspected in the vicinity of the pool plumbing, together with the evidence from the plumber and the deformation of the paving, satisfies the first of the tests in s 10(2)(a) of the Act – that is that trees located on the respondent's property have, in the past, caused damage to property located on the applicant's land and that enlivens the Court's jurisdiction to deal with this matter.

9 However, having the Court's jurisdiction enlivened then requires the Court to consider a range of matters that are set out in s 12 of the Act – all of which we are required to assess. In particular, in this case, the provisions of s 12(h)(2) are relevant, they being ones which require us to consider any steps taken by the applicant or the owner of the land upon which the trees are located to prevent or rectify any such damage.

10 In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280, Preston CJ dealt with a number of matters particularly including the question of knowledge and the ability of a person to take remedial or rectifying steps. His Honour dealt with this matter at para 207 et seq of his decision. It is in this context that, as a matter of discretion, we are obliged to consider whether or not the owner of the tree knew or ought to have known that her tree was causing damage to the applicant's property and, if so, in light of that knowledge or imputed knowledge, she should have (or should reasonably have been expected to) take some form of preventative or rectifying action.

11 In this case, the first occasion on which the damage was drawn to her attention was in October 2008. There is no suggestion that, during the period prior to that date, she either had had her attention drawn to damage being caused or likely to be caused by either or both of the trees nor, from our inspection, was any reason apparent why she should make some enquiry of the applicant.

12 In that regard, we also note that some three years or so earlier, the applicant had had the necessity of engaging a plumber to use an electric eel to remove roots from the sewer pipe but had not, at that time, informed the owner of the tree of that or made any claim on the owner of the tree for that cost.

13 We are satisfied therefore that there is no reason why the owner of the tree knew or should have known that her trees were causing damage to the applicant's property. As a consequences, we consider that it would be unreasonable to require her to meet any significant amount of the costs of rectification of the damage to the applicant's property.

14 However, we turn now the question of the prevention or otherwise of future damage to the applicant's property. In this regard, we have proposals from the applicant suggesting that there should be a concrete root barrier and some form of replacement dividing structure (whether it is a wall or reinstatement in some form of the existing fence) and, in the case of the respondent, we have a report from Mr Andrew Scales of Naturally Trees Arboricultural Consulting who suggests that a combination of root investigation, root pruning and the installation of a root control barrier is recommended as a means of reducing future impacts.

15 We note two matters about Mr Scales’ report. The first is that, despite the express direction given at the preliminary hearing that any future expert witness report prepared for these proceedings was required to conform with the acknowledgement requirements of the Uniform Civil Procedure Rules and the expert witness Code Of Conduct imported by those rules, Mr Scales report has not dealt with those requirements. We have concluded that, despite the fact that there would be an appropriate basis for us to reject his evidence, it would be inappropriate under these circumstances to do so.

16 However, we do observe that it would have been open to us to do so because of his failure to deal with the requirements of the Uniform Civil Procedure Rules.

17 We also note that his report does not appear to have advised the owner of the tree what might be the long-term consequences of major structural root removal of either or both of the trees – particularly major structural root removal to the Chinese Tallowood (which is the tree in closest proximity to the dwellings on 5 and 7 Stanley Street. We consider that this is a major and inappropriate omission from his report.

18 The parties were asked what should be the position if we were to consider that the trees should be removed despite Mr Scales’ report. The applicant indicated that he did not wish his mother's dwelling to be at further risk but he did not positively wish the trees to be removed. The owner of the trees does not want the trees, particularly the Tallowood, to be removed.

19 We have carefully considered this issue in light of what appears to be the inadequacy of Mr Scales report. We have concluded that the extent of the root removal necessary to mitigate damage to the applicant’s property; to permit repair of the plumbing to the swimming pool; and to prevent the risk of likely future damage not only to the property on 5 Stanley Street but possibly also on 7 Stanley Street would require substantial removal of major stabilising roots on the northern side of each tree. This would cause a significant likelihood of structural instability of both trees and be significantly detrimental to the health of each tree. These factors in turn, particularly with respect to the Tallowood, would create an unacceptable risk of whole tree failure and substantial damage to one or other dwellings if that were to occur.

20 We consider it regrettable that Mr Scales does not appear to have canvassed this with the owner of the trees.

21 We consider that we have no responsible alternative to the ordering of the removal of both trees for both safety and future damage mitigation reasons. This removal is to be at the cost to the owner of the tree.

22 The owner of the trees should also make a modest contribution to the removal and reinstatement of the fence and the removal of the roots that are necessary to be removed to permit repair to the swimming pool plumbing the relaying of the pavers.

23 Although we do not have a basis on any of the quotation material to provide a precise quantification of such a sum, we assess that a reasonable amount to allow would be $500 for this purpose.

24 We also consider we should allow a reasonable time for the removal of the trees; for the significant repairs to the swimming pool plumbing; relaying of the paving; and reinstatement of the fence, all of which will necessarily await the removal of the trees.

25 Finally, it will be necessary to permit access to each of the properties by the other party for the carrying out of the works that we propose to order.

26 As a consequence of all of that which has been set out earlier, the Orders of the Court are as follows:

1. The respondent is to remove both trees at a height of not more than 300 mm above ground level with the stump of the Tallowood to be poisoned after removal to that height;
2. The works in (1) are to be carried out by an AQF Level 3 arborist with appropriate insurances;
3. The respondent has 90 days from the date of these orders within which to carry out those removals.
4. The removal of the two trees is to be at the cost of the respondent;
5. The applicant is to permit access to the respondent’s contractors for the purposes of the removals in (1), if it is required, with such access to be on reasonable notice and at a reasonable hour of the day;
6. Within in 6 months of these orders, if the applicant has carried out the repairs to the pool plumbing and removal of the roots required together with the reinstatement of the fence, the respondent is to pay the applicant sum of $500 within 28 days of the presentation of a receipted account for the completion of the works in this order;
7. If a receipted account for the works in (6) is not presented to the respondent within six months of these orders and the respondent has complied with orders (1) and (3) concerning the removal of the trees, the order for the payment of compensation in (6) lapses; and
8. The applicant is to have access to the respondent’s property for the purposes of root removal and carrying out the plumbing works as required with such access to be on reasonable notice and at a reasonable hour of the day.
Tim Moore Judy Fakes
Senior Commissioner Acting Commissioner