Gulikov v Ugochukwu

[2008] NSWLEC 1250

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Gulikov v Ugochukwu [2008] NSWLEC 1250

PARTIES:
APPLICANT
Alexee Gulikov

RESPONDENT
Casimir Ugochukwu

FILE NUMBER(S):
20366 of 2008

CATCHWORDS:
Trees (Neighbours) :- Compensation for damage caused to property, removal of 8 trees

LEGISLATION CITED:
Trees (Disputes Between Neighbours) Act 2006

CASES CITED:
Yang v Scerri [2007] NSWLEC 592

CORAM:
Fakes AC

DATES OF HEARING:
20/06/2008

EX TEMPORE DATE:
20 June 2008

LEGAL REPRESENTATIVES

APPLICANT
Alexee Gulikov, litigant in person

RESPONDENT
Casimir Ugochukwu, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

20 June 2008

20366 of 2008   Alexee Gulikov v Casimir Ugochukwu

JUDGMENT

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

The consequence of the Court’s decsion in this application is the making of formal orders pursuant to s.9 of the Trees (Disputes Between Neighbours) Act 2006. These orders are not reproduced as part of this decision but a copy of the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at type="1">

ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Alexee Gulikov of 3 Chevrolet Place Ingleburn concerning trees located on a property owned by Mr Casimir Ugochukwu of 5 Chevrolet Place Ingleburn.

1. The applicant is seeking compensation for damage to his garage which he contends was caused by a tree, since removed and of unknown type, that was growing at the rear of 5 Chevrolet Place and was allegedly planted by the previous owner of that property.

1. The compensation he is seeking is for the repair/ replacement of a concrete path located between the garage and the dividing fence that runs for the length of the garage. The path is cracked and lifted in the vicinity of the stump of the felled tree. The amount sought for this is up to $1,749.00, that being a quote for the removal of the existing path and its replacement as well as reinforcement of the garage slab.

1. Additional compensation of up to $1,925.00 has been sought to replace the roof and guttering of the garage structure, which also contains an office, that have allegedly been damaged by the tree. A sum of $650.00 to replace the garage door that is reported to be sticking and not functioning correctly due to interference by roots.

1. The total sum claimed for the garage and associated path is up to $4.324.00.

1. The applicant is also seeking the removal of 8 trees/ shrubs located in a narrow garden bed between the front driveways of the 2 properties. These are a mixture of conifers and succulents that have been hedged and are approximately 2 m high. He wants this vegetation removed as he contends that they have uplifted his driveway thus creating a 35 mm gap between the driveway and the pathway that runs parallel to the driveway. The path is on the opposite side of the driveway to the plants.

1. In this matter, the applicant is seeking compensation of $4,141.00 that being 50% of a quote to remove and replace the concrete driveway and path. At the on site hearing, the applicant stated that he would be satisfied with any measures to make the driveway and path level. He is also claiming $505.45 in incidental costs associated with the application. The total claim against the respondent is $8,970.00.

1. Dealing with the garage and path first. The applicant submitted an engineer’s report prepared by CJ McDonald Consulting Engineers and dated 15 March 2006. This was commissioned to determine if there were any structural problems with the garage and associated pathway, to identify any causes of any structural problems found, and to make recommendations for any rectification.

1. The report identified a significant uplift of greater than 50 mm and a crack of about 10-12 mm wide in the same section of the path. The engineer’s conclusion was that this was likely to have been caused by a tree root from the neighbour’s tree, which he notes was trimmed back to about 4m high, and was about 1m from the garage. The recommendation was that the tree should be removed and its roots poisoned and then the path was to be repaired.

1. He states that the uplift has resulted in an externally visible vertical crack in the concrete slab of about 8-10 mm but that is did not have any effect internally due to good building practices, specifically the provision of an expansion joint midway through the slab. He stated that internally, the concrete slab was in good condition with only insignificant minor hairline cracks. He recommended that the crack in the side of the slab be filled with a suitable flexible product and monitored for any increase in cracking.

1. No mention was made of the garage door. The engineer notes that as the walls of the garage are exposed and not lined with plasterboard, no movements can be detected.

1. The engineer also recommended that the applicant engage an arborist to confirm the assumption that tree roots were the cause of the damage. He stated that the damage would get worse if the tree was not removed.

1. The pathway and the garage slab were inspected at the on site hearing and the observations made concurred with those that the engineer had made in 2006. The report included photographs taken at the time of the inspection. There appeared to have been no significant change in any cracking to the path or the slab. The applicant did not mention the garage door.

1. The respondent moved into his property in 2003. After the engineer made his report, the applicant approached the respondent to remove the tree. The applicant stated that he gave a copy of the engineer’s report to the respondent; the respondent had no recollection of receiving it.

1. The respondent sought quotes for the removal of the tree but decided to remove it himself, which he did. He also poisoned the base of the tree. This work was carried out within a month or so of his discussions with Mr Gulikov.

1. The stump and the lower section of the felled tree were inspected at the on site hearing. The tree was clearly dead and there was no suckering from the base.

1. At some stage, the tree had likely caused some damage to the guttering. The evidence for this was a dent in the gutter in the vicinity of the felled tree. Photographic evidence provided by the applicant also shows part of the tree on the roof. There is also some minor corrosion of part of a panel of the galvanised roof in the same area.

1. The roof and guttering on both sides of the garage were inspected from a ladder. The guttering on both sides shows rusting. Decaying vegetation was noted in the gutter on the corner furthest away from the tree and from the down pipe. This was present despite there no longer being overhanging vegetation and the tree being removed more than 2 years ago.

1. The applicant purchased the property in 1998 and the garage and another galvanised shed existed on the property. Hence the garage is at least 10 years old.

1. Coming to the front driveway. The edge of the driveway aligns with the boundary between numbers 3 and 5 Chevrolet Place. The driveway slab is approximately 100mm thick and has expansion joints between the 3 individual elements of the driveway. There is a pathway on the opposite side of the driveway to the row of trees between the driveways of the applicant and the respondent. This is a separate structure to the driveway and is separated by a gap of about 10 mm.

1. Both the driveway and the path appeared to be in good condition. There is a drop of up to about 35 mm between the level of the path to the level of the driveway, with the pathway being lower. The applicant contends that this drop is due to the roots of the trees on the respondent’s property.

1. There is no differential lifting of any element of the driveway and the drop in the footpath is even with no differential displacement of any element of the path. No roots of any substantial size were noted in the gap between the path and the driveway.

1. The plants along the driveway had been recently and substantially pruned away from the applicant’s property by the respondent. These trees have been the subject of ongoing discussions between the applicant and the respondent mediated by the Community Justice Centre. The agreement reached was that, from time to time, the respondent was to prune the plants away from the applicant’s property. The respondent did carry out some of this pruning himself and then later employed someone to do it; however, not as frequently as the applicant would like. At the time of the on-site inspection they are well clear of the applicant’s property. It is noted that Campbelltown City Council allows neighbours to prune overhanging branches.

1. Under s.12 of the Act a number of matters need to be considered. The relevant clauses in this matter are:

   (a)   The tree is wholly located on the respondent’s land.

   (h)(i)      This clause refers to anything other than the tree that may have contributed to the damage, including any act or omission by the applicant. The garage is of unknown age but at least 10 years old so some of deterioration of the guttering would be expected over this time. The fact that there was decaying vegetation remaining in the gutters two years after the removal of the tree indicates that perhaps the applicant did not adequately maintain the gutters. The applicant did not take the engineer’s advice and employ an arborist to determine the presence of roots nor did the applicant undertake the sealing of the crack in the slab with a suitable flexible sealant.

   (h)(ii)     The respondent removed the tree and poisoned the stump as requested by the applicant and recommended by the engineer. This was done within a month or two of the respondent being notified.

1. 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 applicants’ property. 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.

1. In the matter of the garage, it is reasonable that the tree, although it has now been removed, has caused some damage to the applicant’s property. Although this may or may not have happened during the time the respondent has owned the property, the fact that the tree was there when the respondent purchased the property means that he became responsible for the tree. However, given the mitigating factors outlined in paragraph 24, the only damage of any significance and worthy of an order, is the damage to the gutter closest to the respondent’s property and the damage to a section of the side path between the dividing fence and the garage.

1. In the matter of the front driveway and pathway, there is no evidence to suggest that the roots of the trees between the driveways have caused, are causing or could, in the near future, cause damage to the structures. A ‘Structural Certificate’ commissioned by the respondent and provided by SRIV ENGINEERING PTY. LTD supports this.

1. Therefore the orders of the Court are:

   (1)   The application to remove the trees is refused

   (2)   The application for compensation is allowed in part. Some compensation is allowed for past damage to the guttering on the garage and the concrete path between the boundary fence and the garage.  Compensation for the driveway, front pathway, garage roof, garage door, any reinforcing of the garage slab and incidental costs associated with the application is refused.

   (3)   The applicant is to obtain 3 quotes for the removal and replacement of a 1.5 m section of the side pathway in the vicinity of the uplift. The works are to include the removal of any roots in that section and the insertion of expansion joints between the new and existing sections of the path.

   (4)   The applicant is to obtain 3 quotes for the repair/ replacement of the garage gutter on the side of the garage closest to the respondent’s property. If the quote includes other repairs/ replacement of other elements of the guttering, for example downpipes, the repair/ replacement of the single length of guttering must appear as a clearly identifiable item on the quotes and subsequent tax invoice.

   (5)   The respondent is to pay 50% of the cheapest quote for the removal and replacement of the 1.5 m section of pathway and 50% of the cheapest quote for the repair/ replacement of the single section of guttering.

   (6)   This is to be paid to the applicant within 21 days of receiving copies of the tax invoices for the completed works.

___________________

J Fakes
Acting Commissioner of the Court