Patane v Singh

[2015] NSWLEC 1495

Land and Environment Court

New South Wales

Medium Neutral Citation:	Patane v Singh & anor [2015] NSWLEC 1495
Hearing dates:	27 November 2015
Date of orders:	27 November 2015
Decision date:	27 November 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application dismissed
Catchwords:	TREES [NEIGHBOURS] Damage to property; compensation; absence of evidence; other factors.
Legislation Cited:	Civil Procedure Act 2005 Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005
Cases Cited:	Barker v Kryiakides [2007] NSWLEC 292 Hinde v Anderson & anor [2009] NSWLEC 1148 McCallum v Riodan & anor [2011] NSWLEC 1009 Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 Yang v Scerri [2007] NSWLEC 592 Zangari v Miller (No 2) [2010] NSWLEC 1093
Category:	Principal judgment
Parties:	Robert Patane (Applicant) Rashpal Singh (First Respondent) Paramjit Kaur (Second Respondent)
Representation:	Applicant: Ms J McIntosh (Barrister) (Direct access) Respondents: Ms A Gibbons (Barrister) Solicitors: Respondents: Muhammad Chaudhry MIC Lawyers
File Number(s):	20726 of 2015

Judgment

1. COMMISSIONER: The applicant purchased his Doonside property in August 2013. At the rear of the property, in the south-eastern corner is a concrete slab some 200mm from the boundary to the south and approximately 300mm from the common boundary with the respondents’ property to the east. The slab is all that remains of a garage thought to have been between 40 and 50 years old.

2. The applicant contends that an English Oak tree (Quercus robur), wrongly identified in the application claim form as a ‘Rubber Tree’, growing at the rear of the respondents’ property, caused irreparable damage to the garage necessitating its demolition on safety grounds.

3. The applicant has applied under s 7 part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) for the following orders: (as summarised from the application form):

1. The respondents to remove the tree and its stump and root system.

2. The respondents clean and repair any damage to the sewer and water system, including removing any remaining leaves and debris.

3. The respondents pay all costs associated with, and incidental to, orders (1) and (2).

4. The respondents pay the applicant $20,189 as compensation for the removal, disposal and replacement of the garage and slab.

5. The respondents pay the applicant’s legal costs.

4. In regards to proposed order (5), 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.

5. Counsel for the applicant raised the jurisdictional test in s 10(1). I am satisfied that the applicant has made a reasonable effort to reach agreement with the respondents and the test is s 10(1) is met.

6. In applications under Part 2 of the Trees Act, 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.

7. 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…”.

8. The hearing commenced on site with an inspection of the tree from the respondents’ property. As stated above, the tree is an English Oak. As neither party engaged an arborist, the following observations are made on the basis of the arboricultural expertise I bring to the Court. The tree is a healthy mature specimen with no obvious structural defects. The tree is approximately 500mm or so in diameter and certainly not 1000mm as described by the applicant’s engineer (see below). There is a small percentage of dead wood which is normal and consistent with a tree of this size and age. The bare earth at the base of the tree enabled an observation of the portions of radially arranged primary and secondary woody roots projecting above the surface. The applicant’s counsel drew the Court’s attention to the roots that were growing in the direction of her client’s property. The base of the tree is some 3-4m from the applicant’s garage slab. A portion of the canopy overhangs the applicant’s property. In the area where the garage had been the canopy is higher than elsewhere as a consequence of previous pruning, the evidence of which can be seen.

9. The specific damage described in the application claim form (Exhibit A, p4) is:

Item at D1 [location of garage on diagram in claim form] cracked concrete, leaning to one side due to weight top heavy roof tiles. Leaning more to point of fall over perhaps landing on person and or people.

10. Although risk of injury is not highlighted on the cover sheet of the claim form, the applicant answers question 9 (likelihood of injury) as:

The garage is leaning so far to point of falling (Roof tiles removed on garage to prevent further damage, collapse and injury. The roots according to Engineer lifted footings, the leaves blocked drainage and gutters letting water enter garage rotting carpentry timber walls.

11. The ‘Engineer’ referred to is Mr Bishoy Mekhael, a Structural Engineer, engaged by the applicant to inspect the garage in or about April 2015. Mr Mekhael’s report and associated photographs are included in the application and filed later and separately with an affidavit sworn on 14 October 2015 (Exhibit B). The applicant relies on this report.

12. The report states - as written:

Thomas Engineers hereby confirm that we have inspected the above mentioned property on the 27th April 2015. The purpose of the inspection was to review the effect of the existing rubber tree roots that has affected the existing garage.

● The tree has a trunk diameter of approx. more than 1000mm and it quite matured. The tree is located in the backyard of the neighbour property. The tree is very close to existing garage and the branched are grown over the roof of the garage.

● We believe that the roots caused the damage in the garage especially the footing and the concrete slab.

● Due to the garage wall damage the owner removed the roof tiles for safety and we believe if he re build it again with this situation the tree branches will damage the roof again and will block the roof gutter.

It is recommended that the tree mentioned above, be removed.

Yours faithfully

13. The report includes six photographs including one taken over the fence of the base of the tree, several showing the condition of the garage with tiles removed and overhanging branches, and the others purporting to show damage to the concrete slab and garage caused by roots and branches. None of the photographs show any roots or any specific branches interfering with the structure.

14. On 14 October 2015, Mr Mekhael wrote to the applicant stating that the condition of the garage was getting worse, and because it could collapse at any time, the garage should be demolished as soon as possible. Four uncaptioned photographs were included with the letter, all illustrating the very dilapidated and leaning condition of the garage.

15. The photographs show the garage to have been constructed with a timber frame and clad with what appears to be asbestos sheeting overlaid with aluminium cladding. None of the photographs are clear enough to show whether the base plate of the timber frame rested on the slab or was sitting on some other footing.

16. In further evidence (Exhibits C and D – applicant’s affidavits), the applicant states that before purchasing the property he didn’t see any roots near the garage and the walls were straight, the roller door worked properly, and the garage floor was flat with no significant cracking other than it looked old. Photographs taken at that time are distant shots of the house and garage. He states that not long after he bought the property he noticed the gutters were blocked with leaves and there was debris building up between the walls and the fence. He walked around to the respondents’ property to discuss pruning back the branches but as the property was rented spoke to the tenant.

17. In his affidavit (Exhibit C) the applicant states (relevantly) that in or about the end of 2013 he inspected the property and found the garage door difficult to lift. In January or February 2014 he noticed the lean of the garage was getting more serious and visible. At that stage he removed the roof tiles to take the weight off the structure. At that time he also noticed that the cracks in the floor were getting wider. He couldn’t see any roots or anything that could be causing the cracking. As he became more anxious about the state of the garage he sought to have it removed and contacted Blacktown Council and the respondents’ managing agent. Sometime after, he engaged Mr Mekhael and obtained quotes for a new garage.

18. In a further affidavit (Exhibit D) amongst other things he states that the garage was removed in October 2015. Photographs included in the affidavit show the garage just before and after demolition. The cracks in the slab are as observed during the hearing.

19. The respondents obtained their own engineer’s report from Mr Greg McDonald, a Civil Engineer (Exhibit 3). He inspected the site on 24 November (three days before the hearing) and after the garage had been removed. His report and observations are based on the remaining slab and photographs supplied to him and listed in his report.

20. Mr McDonald notes the poor condition of the slab with cracks up to 60mm wide. He states: I could not see any tree roots in the vicinity of the cracks. He notes the position of a low point in the generally flat yard near the north of the garage and the down pipes off the house which he opines may run to an absorption pit and to which the downpipes of the garage may have been connected. Mr McDonald states that the cracks in the slab are very old and some of them have been repaired. All the cracks have debris and broken concrete in them, a sign he says that could have occurred as a result of excess moisture. He suggests the slab may be 50 years old and over that time has been subjected to the elements. Mr McDonald states that he has not seen any arborist report that tree roots have infiltrated beneath slab; he notes the applicant’s engineer makes this assumption without reference to an arborist’s report. He states:

Therefore there could be a number of causes of the cracks in the concrete slab including excessive moisture in the soil and/or overland flow of water, which can both cause destabilising of the foundations.

The age of the concrete slab would suggest that it has past [sic] its design life and will naturally break up. The location of the garage, being close to the boundary fence can create a wind tunnel effect, which would put more pressure on the building and consequently move the slab.

21. In regards to the garage, Mr McDonald states that he relies on the photographs and Mr Mekhael’s affidavit. He notes that the branches shown in the photograph only covered the rear of the building and that the front of the garage was extensively damage. He notes the absence of any comments in respect of the condition of the timber structure and speculates that there may have been termite damage or wet rot. Mr McDonald also opines that the structure may have been subject to wind loading or from pressure applied from trees growing between the southern side boundary fence and wall. While he cites AS2870 Residential Slabs and Footings Code, he does so in general terms of distances between the tree and the slab now and the likely size of the tree when it was planted.

22. Mr McDonald concludes:

There are too many unknowns that have not been reported on. There are other possible reasons why the concrete slab has cracked or the timber structure collapsed, but these have not been investigated. It appears that the owner of [applicant’s property] and the investigating engineer that the tree has solely caused the defects in the slab and the garage structure, however it is clear there may have been other causes that are not so obvious.

The removal of the roof tiles to decrease the weight of the structure may also have contributed to the opening of cracks in the concrete slab as it exposed the already aging slab to more of the elements such as rain and wind. The concrete slab has defects at and above a category type 4 defect in accordance with Appendix b of AS2870 “Residential Slabs and Footings” code and should be demolished, however it may have reached this stage even if the tree was not present.

This report is based on a visual examination and every reasonable effort has been taken to reveal the structural integrity of the slab, however, there may exist hidden or latent defects that may have an effect on the structural adequacy of the concrete slab.

23. During the hearing the slab and its surrounds were inspected. The applicant was unable to show me any roots from the oak tree on his property and specifically close to or beneath the slab. As indicated by the respondents’ counsel, the slab appears to be tilted along the long central axis and drops towards the south-eastern corner. The slab is very close to the two adjoining boundary fences. There are the remains of a downpipe in the south-eastern corner. I observed what are most likely to be young, self-sown trees – Camphor Laurel, Privet and Jacaranda growing in the very narrow gap between the southern edge of the slab and the boundary fence to the south. There are no expansion joints in the slab, there was no evidence of any reinforcing visible down any of the large cracks. It was also clear that the cracks have been repaired at some stage in the past but these repairs have failed some time ago.

24. No evidence was adduced nor any submissions made about the applicant’s sewer. The only reference to it appears to be in the orders sought and a comment at the end of a summary attached to the application which states:

Ps there is a sewer pipe next to garage and fear the roots may also pierce the sewer pipe.

25. Counsel for the applicants, Ms McIntosh, submits that it can be inferred from Mr McDonald’s report that he agrees with Mr Mekhael in that the roots could be a cause of the damage to the garage. She cites Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at [179] where His Honour notes that the tree the subject of an application does not need to be the sole cause of the damage but it is sufficient for the tree to be one of multiple causes of damage.

26. Ms McIntosh relies on the experience of the applicant’s structural engineer as detailed in his resume attached to his report. She contends that while the applicant’s engineer doesn’t have a detailed explanation for the damage, his evidence is sufficient to satisfy s 10(2).

27. It was put to the applicant that it was unlikely that the extent of damage could have occurred during the two years or so that the applicant has owned the property and that compensation in the form of a new garage and slab was unreasonable given the age of the structure. In response, Ms McIntosh cited her client’s affidavit and his evidence that the failure of the garage happened quite quickly. She presses the application and orders as proposed.

28. Ms Gibbons, counsel for the respondents submits that this is a matter where common sense should prevail. She notes the condition of the slab and other elements referred to in Mr McDonald’s report. Ms Gibbons contends that the slab has subsided in the area near the downpipe as well as split along the centre. She stresses the absence of any roots and asserts that the application should be dismissed.

Findings

29. I am not obliged to uncritically accept expert evidence. Expert opinion must be assessed against facts and actual evidence of the nexus between the tree and the alleged damage. The onus in these matters rests with the applicant to prove their case. In this matter the applicant relies heavily on Mr Mekhael’s report. I accept that this report was prepared prior to the lodging of the application on 19 August 2015 and is included in that document. However, Ms McIntosh witnessed the Affidavit of Bishoy Mekhael (exhibit B) on 14 October 2015, filed with the Court on 27 October 2015, in which Mr Mekhael states that he has read and agrees to be bound by the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005. Clause 5 of that Schedule clearly sets out the requirements for an expert’s report, in particular the facts and assumptions of fact on which the opinions in the report are based as well as any tests or other investigations that were made. The ‘resume’ Ms McIntosh relies upon is an untitled page in the affidavit outlining, in the broadest terms, the type of work carried out by Thomas Engineers, and an even briefer description of Mr Mekhael’s qualifications and experience; it is certainly not up the usual standard of professional resumes and in my view is inadequate.

30. I find Mr Mekhael’s report to be unsubstantiated opinion, factually wrong and offering no discussion of what would seem to be key considerations such as the age, materials and structural integrity of the garage. No excavation along the accessible northern edge of the slab or the north-eastern corner of the tree was undertaken which may have demonstrated the presence or absence of roots. I am not satisfied on the evidence provided by the applicant that the roots or branches of the respondents’ tree have caused the alleged damage to the applicant’s garage.

31. Although Ms McIntosh contends that the respondents’ engineer has somehow concurred with the applicant’s engineer, I find this a very tenuous connection as Mr McDonald makes it clear that he did not see any roots nor did he see any arboricultural report indicating the presence of roots. I find Mr McDonald’s report provides a much more reasoned and thorough analysis of the evidence available to him and he makes it clear as to the facts and assumptions upon which he has based his opinions. If he has implied that roots may be a cause he has not stated that assumption.

32. With respect to the alleged damage caused to the garage by the alleged blocking of gutters – see [10] and [16] of this judgment, the applicant has not provided any evidence of any such damage. In Robson v Leischke at paragraphs [168] to [173] Preston CJ discusses ‘damage’ in general. In this discussion, his Honour specifically noted (at [171]):

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.

33. As stated above, because there is no evidence of any damage, this element of the application is not actionable however, that said I consider it worthwhile to bring to the applicant’s attention the following.

34. 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.

35. 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 on this basis. In this matter the applicant saw the leaves but undertook no maintenance.

36. As the applicant is concerned about future damage to the sewer, the guidance decision in Yang v Scerri [2007] NSWLEC 592 has determined that the 'near future' is a period of 12 months from the date of the hearing. However, there is no evidence provided by the applicant that the sewer has been blocked by anything let alone the respondents’ tree.

37. Therefore with the benefit of the site inspection, the evidence and the submissions, I find that s 10(2) is not met for any of the elements of the applicant’s claim. However, if I am wrong in this and the tree may be ‘a’ cause, I note the following considerations under s 12 of the Act.

38. The tree is a healthy specimen that would otherwise need permission from Blacktown City Council for its removal (s 12(b)). It makes a contribution to the amenity of the land on which it is growing (s 12(b3)(e)). On the evidence of Mr McDonald and clearly visible on site, in the absence of any actual evidence of tree roots, there are many other probable causes of the damage to the garage slab and structure. Similarly, on the applicant’s own admission, when he saw the leaves in the gutter he did not undertake any maintenance (s 12(h)). While the applicant states in his affidavit that he can’t find the pre-purchase building inspection report, I am unconvinced that the deterioration of the garage, in particular the slab, took place so rapidly in the relatively brief period that the applicant has owned the property. Claiming the full cost of the removal and rebuilding of a 40-50 year old garage is unreasonable.

39. Therefore, having considered the matter fully, I propose to dismiss the application.

Postscript

40. As stated above the hearing commenced on site. The inspection of the site, the viewing of evidence and making of submissions concluded at about 10.15 am. As both parties had engaged counsel, I stated that in the interests of keeping costs to a minimum I would deliver my findings and the orders by telephone at 1.45pm on the same day. Immediately before delivering the orders, counsel for the applicant sought a further adjournment of the proceedings to allow her client time to remove the garage slab. I rejected this proposal and refused leave to adjourn on a number of grounds.

41. Firstly, the matter has been on foot since August and for the reasons given above, I consider there has already been sufficient time available for the applicant to adduce the evidence he seeks to rely upon. Up until the time that the orders were to be made, the applicant was content to rely on the evidence in the applicant’s exhibits. However, it appears that as a consequence of what was discussed on site, the applicant sought further time to prove his case.

42. In the applicant’s affidavit, Exhibit D [11] he states that the garage was removed over a few days on or about 10 October 2015. However, photographs taken by Mr Mekhael and references in Exhibit D [9] show the garage was still there at that date. Despite these discrepancies in dates, it would appear that the garage was removed at least a month before the hearing. This in my view has been ample time for the applicant to provide proof of the presence or absence of roots from the tree.

43. Secondly, the applicant’s request is counter to s 56(1) of the Civil Procedure Act 2005; that is

1. The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

44. As stated above, this matter has been agitated since August and a further adjournment is not justified on the dictates of justice when assessed against the matters to be considered under s 58(2)(b) of the Civil Procedure Act 2005. I also note that neither the respondents’ counsel nor solicitor was given any notice of the adjournment prior to the designated time at which the orders were to be handed down. In my view this is prejudicial to the respondents and likely to incur additional and unwarranted costs.

45. Should the applicant wish to make a second application I draw his attention to Hinde v Anderson & anor [2009] NSWLEC 1148. A fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence. The judgments in McCallum v Riodan & anor [2011] NSWLEC 1009 and Zangari v Miller (No 2) [2010] NSWLEC 1093 give some indication as to what the Court considers to be ‘changed circumstances’ and fresh evidence.

46. Therefore, the Orders of the Court are:

1. The application is dismissed.

___________________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 30 November 2015