Ofloglou v Sciglitano
[2015] NSWLEC 1318
•10 August 2015
Land and Environment Court
New South Wales
Medium Neutral Citation: Ofloglou v Sciglitano [2015] NSWLEC 1318 Hearing dates: 10 August 2015 Date of orders: 10 August 2015 Decision date: 10 August 2015 Jurisdiction: Class 2 Before: Fakes C Decision: Application upheld; tree removal ordered.
Catchwords: TREES [NEIGHBOURS] Damage to property; adequacy of evidence and engineer’s report; application to amend orders Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148
McCallum v Riodan & anor [2011] NSWLEC 1009
Zangari v Miller (No 2) [2010] NSWLEC 1093Category: Principal judgment Parties: Ms S Ofloglou (Applicant)
Mr M Sciglitano (Respondent)Representation: Applicant: Mr U Coustas (Solicitor)
Solicitors:
Respondent: Ms L Saw (Barrister)
Applicant: Lexington Law Group
File Number(s): 20210 of 2015
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
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COMMISSIONER: Growing at the rear of the respondent’s North Parramatta property is a mature Jacaranda tree. The applicant contends that the roots from this tree have caused the cracking of tiled pergola slab and an adjacent concrete path. The application originally considered two Jacarandas however, the respondent has since removed one of the trees.
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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 tree at the respondent’s expense.
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In applications made under Part 2 of the Act, the key jurisdictional tests are 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 could in the near future cause, damage to the applicant’s property, or
(b) is likely to cause injury to any person.
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Injury is not pressed.
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The applicant engaged a consulting engineer from M+G Consulting to inspect the cracking and provide an opinion as to its cause. The consultant’s report dated 15 April 2014 is included in the application claim form. The report states [as written]:
INTRODUCTION
As requested, the writer inspected the property at the above address on 2nd April 2014. The purpose of the inspection was to inspect and provide comment regarding the cracking to the tiled pergola slab and adjoining concrete footpath at the rear of the property.
The pergola is located in the rear yard of the property in the south-west corner of the property. The rear of the existing residence, which appears to be 1950s style construction, is located approximately 7.5 m from the rear (southern) boundary and is linked to the concrete footpath slab. A vent cap, which appears to be a sewer vent cap, was also observed in the footpath slab.
Several mature Jacaranda trees were observed on the neighbouring property close to the boundary fence. Their height is estimated to be in the order of 15m.
OBSERVATIONS AND COMMENTS
Extensive cracking was observed to the tiled pergola slab and also the adjoining concrete footpath slab. Cracks of varying widths, up to 10mm, were observed. Some floor tiles were also observed to have been lifted. Details of the cracking and damage can be seen in the photos below.
At the time of the inspection, no significant cracking to the existing residence could be observed.
It is our understanding that tree roots generally extend to an area covered by the tree canopy. In this case, the tree canopies appear to extend over the pergola roof. It is therefore likely that the tree roots extend to the pergola and footpath slab. In our opinion, the contributing cause of the damage to the slabs is by the soil being displaced by the high level tree roots.
Based on our inspection, it is our opinion that the large neighbouring trees have been the major cause to the damage observed to the existing slabs.
It is possible as the trees continue to grow over time, the extent of cracking and damage may increase.
The potential extent of damage may also extend to the residence.
Furthermore, based on the age of the residence, it is possible that nearby sewer pipes are rubber-ringed clay pipes. These pipe systems are prone to tree root ingress and commonly cause pipe blockages over time. It could not be determined if any ingress is currently occurring.
Based on our observations, to prevent any further damage to the structures and in-ground services, it is our recommendation that the existing trees are removed or a suitable tree-barrier structure be installed to prevent the ingress of tree roots into the property [applicant’s property]. Any repairs to the slabs should not be undertake until the these works have been undertaken.
CONCLUSION AND RECOMMENDATIONS
1. There is extensive cracking and damage to the existing tiled pergola slab and footpath slab located at the rear of the property.
2. It is our opinion that the neighbouring Jacaranda trees are the major cause of this damage.
3. We recommend that the trees are removed or a suitable tree-barrier structure be installed to prevent the ingress of tree roots into the property.
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The application rests on this report.
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The hearing commenced on site with an inspection of the remaining Jacaranda from within the respondent’s property. The tree is growing in the north-eastern corner of the recently subdivided lot. Neither party engaged an arborist to provide independent expert evidence. With the arboricultural expertise I bring to the Court, I observed the tree to structurally poor. There is included bark between the main leaders, extensive decay in the main limb which overhangs the applicant’s property at the rear; and there are many wounds on all main leaders, branches and at the base of the tree.
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The hearing proceeded to the applicant’s property. The condition of the tiles and paving is as described and illustrated by the applicant’s engineer. There is lifting and cracking in several directions – principally north to south and east to west. The top of one Jacaranda root was observed in the gap between the dividing fence and the edge of the tiled pavement.
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During the hearing the applicant’s solicitor sought to amend the application to include orders seeking the full cost of the replacement of the tiled area and the adjoining concrete slab. Quotes included in the application claim form range from $7,100.00 to $8920.00 plus GST.
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The respondent’s barrister submitted that this should be refused given the lateness of the amendment as the matter has been before the Assistant Registrar on several occasions. She stated that the respondent is prepared to remove the tree but not contribute to the rectification of the paving.
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After considering the parties’ positions, the applicant was refused leave to amend the application. The file cover sheet indicates that this matter was first listed for a Directions Hearing on 19 May 2015. At the parties’ request this date was vacated and the matter stood over until 16 June 2015. There was a further adjournment until 6 July 2015 and the hearing was eventually down for 28 July. On the following day, 7 July 2015, at the request of the applicant, the matter was relisted for hearing on 10 August 2015.
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While the applicant’s solicitor contends that the amending of the application was discussed during the directions hearing, there is nothing in the Court’s file to indicate this intention.
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The Court has published Practice Notes for all of its jurisdictions. Items 30 and 31 of the Class 2 – Tree Applications Practice Notes state:
30. An applicant requires permission from the Court to amend a tree application.
31. Any application to amend is to be in writing and accompanied by a short statement in support explaining the reasons for seeking permission to amend. Applications to amend may be dealt with by the Court “on the papers” after telephone consultation with all parties or by a quick hearing on the application [such a hearing may be conducted by telephone to avoid the need for the parties attending at the Court] or during either the preliminary hearing or the final hearing of the tree application.
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The amended application was provided to the respondent’s barrister on the morning of the hearing. The applicant’s solicitor did not lodge a Notice of Motion or initiate any other written formal process to provide sufficient notice of the applicant’s intent to amend the application. In my view, it would have been procedurally unfair to allow the amendment on such short notice when the matter has been afoot since May 2015.
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Should the applicant seek to lodge a fresh application, the decisions in Hinde v Anderson & anor [2009] NSWLEC 1148, McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court has considered when a second application is filed.
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Returning to the application before the Court. The applicant’s engineer’s report is of little assistance. The engineer has merely recorded what he saw, something that anyone could have done. He has stepped beyond his area of expertise and has made unsubstantiated assumptions about the extent and presence of tree roots. No excavations were carried out nor was there any discussion of the thickness or likely construction of the path and paved area or of the substrate – that is, of factors other than the tree that may have contributed to the damage.
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The applicant stated that when she purchased the property in about 1980 the tiled area was present but at some later stage, builders poured the concrete path. It was clear during the hearing that there are no expansion joints in either the tiled area or the concrete path.
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However, based on the root that I observed, I am satisfied to the extent required by s 10(2) that the tree is likely to be a cause of the damage to at least the tiled area and, as such, the Court’s jurisdiction is engaged.
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Given the very poor structural condition of the tree and its proximity to structures other than the applicant’s tiled area, the tree should be removed. Its removal will prevent any further damage to the paving and avoid damage to other property.
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As a consequence, the Orders of the Court are:
The application is upheld.
Within 60 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist to remove the tree to ground level. The stump is to be ground or poisoned.
The work in (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
The applicant is to provide reasonable access on reasonable notice for the purpose of quoting and for the safe and efficient carrying out of the work in (2).
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Judy Fakes
Commissioner of the Court
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Decision last updated: 10 August 2015
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