Hinidza v Land and Housing Corporation

[2016] NSWLEC 1055

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hinidza v Land and Housing Corporation [2016] NSWLEC 1055
Hearing dates:	16 February 2016
Date of orders:	16 February 2016
Decision date:	16 February 2016
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application granted in part – see [27]
Catchwords:	TREES [NEIGHBOURS] Damage to property; trees removed; adequacy of evidence; notice to respondent; limited compensation payable
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Category:	Principal judgment
Parties:	Mr S Hinidza (Applicant) Land and Housing Corporation (Respondent)
Representation:	Applicant: Mr S Hinidza (Litigant in person) Respondent: Mr C Balomatis (Solicitor)   Solicitors: Respondent: Land and Housing Corporation
File Number(s):	21022 of 2015

Judgment

1. COMMISSIONER: The applicant claims that three trees growing on the respondent’s Granville property have caused damage to his property. The applicant has applied under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of the trees, compensation for money spent on rectifying his property and rectification of damage yet to be repaired.

2. The NSW Land and Housing Corporation owns the adjoining land to the north. Along the southern (and common) boundary of that property were four trees which have been removed with the consent of Parramatta City Council. One tree was removed in early 2015 and remaining trees pruned; the remaining trees, as well as others on the property, were removed in early 2016 after the commencement of these proceedings.

3. Section 4(4) of the Act enables the Act to apply to trees that have been removed but which were present when the damage occurred.

4. The applicant claims that the trees have:

• blocked and damaged part of the guttering of his dwelling necessitating replacement of it in mid-2013 at a cost of $528.10;

• cracked and blocked his sewer requiring its partial replacement at a cost of $4,500.00; and

• cracked the concrete floor of his garage; the estimated cost of repair is $5,500.00.

5. The applicant is seeking compensation for this damage as well as reimbursement of the Court’s filing fee. In regards to the last element of the claim, Commissioners of the Court do not have the jurisdiction to order payment of legal costs, costs of expert reports, application fees and the like. If sought, claims for these costs must be made by a Notice of Motion, which is heard and determined by a Judge or Registrar of the Court.

6. The on-site hearing commenced on the respondent’s property. There are no longer any trees near the common boundary of the parties’ properties. The former location of the trees was noted. The three trees, the subject of this application, were two Eucalyptus robusta (Trees 1 and 2) and one Lophostemon confertus (Tree 3). Tree 1 was towards the rear of the property, Tree 2 closest to the applicant’s garage, and Tree 1 towards the front of the property.

7. In applications under Part 2, the key jurisdictional test is found in s 10(2). This states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

8. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part “something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…”.

The guttering

9. The applicant replaced the guttering in 2013. The applicant has not provided any evidence, photographic or otherwise, to support his contention that any of the respondent’s trees caused any physical damage to the guttering. The only material in the claim form is a tax invoice for the completed work.

10. While I am not satisfied that any damage has occurred to the guttering as a consequence of the leaves, as a matter of discretion, under s 12 of the Act, I would not make any order for any payment of compensation on the basis of leaf litter.

11. In Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Preston CJ at paragraphs [168] to [173] discusses ‘damage’ in general. In this discussion, his Honour specifically noted (at [171]) that:

171 However, annoyance or discomfort to the occupier of the adjoining land occasioned by nuisances of the third kind is not “damage to property on the land” within s 7 of the Trees (Disputes Between Neighbours) Act 2006. Hence, leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour’s land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour’s land they will not be actionable under s 7.

12. Many applications are made on the basis of annoyance or discomfort associated with the dropping of leaves, fruit, twigs and other material naturally shed from trees. The Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that:

For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.

The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.

13. There are many examples of the application of this Principle. To date it has been adopted consistently and there have been no examples where the Court has been satisfied to the extent required by s 10(2) that any orders should be made for any intervention with a tree, or orders for compensation, on this basis; and so it is with this matter. As the trees have been removed, no future damage can occur.

The garage floor

14. The claim form includes photographs of the crack in the concrete floor of the garage. These were verified on site.

15. The claim form also includes an undated and unsigned “report” entitled ‘Effects of Proximity of Existing Tree on Residential Dwelling at…Granville’ prepared for the applicant by a Mr Sackey, a project manager. The brief, one page report states [as written]:

DESCRIPTION OF PROBLEM:

Then above residence was bought by Mr Sam Hinidza and he had lived at the premises since the year 2000, more than 15 yrs. When Mr Hinidza moved in earlier on, there was no indication of these trees in the adjacent property causing structural damage to his property.

Mr Hinidza first noticed hairline cracks on his garage floor about 10years ago and as of today, the cracking has become larger, 5mm as shown in the Photos 6 & 7.

The continuous growth of this tree and the extension of its roots has caused some structural damage and its’ only going to get worse over time. Please note the comments on the photos below.

RESULTS OF FINDING:

The deep penetration of the roots under the garage building has caused a deep crack through the floor slab of the garage and has widened from a hairline crack some 15 years ago to a 5mm wide crack.

Also the stretch of roots unto my property has caused significant damage to the sewer line on my property and therefore, it has to be replaced. The plumber who noticed the problem took photos of it and has since written a report to highlight the effects of the neighbouring tree roots on my sewer line.

RECOMMENDATION:

It is therefore recommended that, all remaining trees (Trees 1-3) as indicated [in] the photos below be removed. All trees are less that [than] 1.5m [from] to the wooden fence.

16. At the hearing the applicant was unable to produce any evidence to prove that the crack in the floor was caused by the roots of one or more of the respondent’s trees. He relies on the “report”.

17. I do not propose to place any weight on the ‘report’. The author, whoever that may be, does not indicate when the inspection was carried out, what investigations were made or how he came to his conclusion. The reference to “my property” indicates that the author may be a co-owner. While the photographs show the relative location of Tree 2 to the garage, and it is hypothetically possible that roots may have contributed to the damage, they do not provide sufficient evidence to prove any nexus between the trees and the damage.

18. The cracking may have been caused by other factors. There are no expansion joints in the slab and the soils in the area are reactive clays. Mr Horton, a project manager for Land & Housing, considers that the garage is at least 35 years old. His opinion is based on the asbestos roofing material that has not been used since about 1980.

19. On this basis, no orders will be made for any rectification of the applicant’s slab at the respondent’s expense.

Sewer

20. The applicant contends that roots from the respondent’s trees have cracked and blocked his sewer. The application claim form includes a quote dated 1 October 2015 from one plumber which includes a notation about ‘root damage from next door tree’. Another undated statement from another plumber who carried out the work notes that a camera inspection, both upstream and downstream from an inspection point, identified tree roots as a cause of cracking and collapse of the terracotta pipes. Photographs taken by the plumber show woody roots in and about sections of pipe. The respondent’s trees were the only trees in the immediate vicinity.

21. I am satisfied on the photographic evidence that one of more of the respondent’s trees was a cause of the damage to the applicant’s sewer pipes. In Robson v Leischke at [179] Preston CJ noted that a tree need only be ‘a’ cause of the damage in order to satisfy s 10(2) and thus engage the Court’s jurisdiction.

22. Before determining what, if any orders should be made under s 9 of the Act, I must consider any relevant matters under s 12.

23. Of particular relevance is s 12(h) – actions of the parties and other possible causes. The applicant stated that he had contacted the Corporation in regards to his concerns about the trees and damage to his property. The claim form includes two letters from the applicant’s local Member of Parliament who he had approached in regards to the respondent’s trees. One of those letters dated 2 October 2015 indicates that the Corporation was contacted and they advised that further documentation concerning the blocked/collapsed sewer lines and structural damage would be required in order for the Corporation to apply to council to remove the trees. An email from the Corporation, included in the claim form, supplies the information sought by the local Member.

24. Although the applicant stated that he had tried to discuss the matter with the Corporation for some time, he was unable to provide any evidence of any emails or other correspondence. Therefore, the Corporation was denied an opportunity to independently assess the extent of the problem before the applicant took the action of replacing the sewer. It is noted that the Corporation took action to have the trees removed. It is also noted that blocked sewers often require urgent attention.

25. In considering what other factors may have contributed to the problem, the soils are reactive and the sewer pipes were probably as old as the applicant’s house, estimated to be at least 70 years old. Therefore soil movement and wear and tear may have played a role. However, I am satisfied that tree roots were the primary cause of at least some of the damage and as a result, I consider that some compensation is reasonable in the circumstances, however, I am not prepared to make an order for the full amount the applicant claims.

26. The applicant has included a statement from the plumber who carried out the work which notes that the work to date cost $4,500. Photographs in the claim form show the replacement of the length of the pipe from the inspection point full the full length of the deep back yard. This was installed prior to a secondary dwelling being constructed at the rear of the site. Neither the photographs nor the plumber’s statement identify the extent of the root-damaged section. Given these limitations, the contribution payable by the respondent is limited to 20% of the cost or $900.00.

Orders

27. The Orders of the Court are:

1. The application is granted in part.

2. Within 30 days of the date of these orders the respondent is to pay the applicant the sum of $900.00.

_______________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 16 February 2016