Pollachini v Estate of the late Peter Dimitropoulos

[2020] NSWLEC 1463

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pollachini v Estate of the late Peter Dimitropoulos [2020] NSWLEC 1463

Hearing dates:

6 August 2020

Decision date:

29 September 2020

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

See orders at [45] below.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – tree causing damage to driveway and fence – whether damage to house is caused by the tree

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006

Cases Cited:

Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29

Stevens v Russell [2016] NSWLEC 1233

Yang v Scerri [2007] NSWLEC 592

Category:

Principal judgment

Parties:

Christine Pollachini (Applicant)
Estate of the late Peter Dimitropoulos (First Respondent)
Koralia Dimitropoulos (Second Respondent)

Representation:

C Pollachini (Litigant in person) (Applicant)
A Dimitropoulos (Agent) (Respondents)

File Number(s):

2020/157642

Publication restriction:

No

Judgment

Background

1. The applicant, Ms Pollachini, shares a side boundary with a property owned by the respondents, Ms Koralia Dimitropoulos and the Estate of the Late Peter Dimitropoulos, in Croydon. The respondents’ property is leased to tenants. Ms Pollachini occupies her residence, and she has owned the property for about eight years. The dispute has been ongoing since 2018, and Ms Pollachini has alerted the respondents, and their real estate agent (the agent), on many occasions, to damage allegedly caused by the tree.

2. As the applicant’s claims remained unaddressed, Ms Pollachini commenced proceedings in 2020, pursuant to s 7 of Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), in order to remedy damage that a Cinnamomum camphora (Camphor laurel) (the tree) has caused, is causing, and is likely to cause in the near future. She also claimed that the tree represented a serious risk of injury.

3. Based on photographs in the case file, the tree was about seven metres tall, with a canopy spread of approximately 4-5 metres, and trunk diameter at ground level of about 375mm. Not long before the onsite hearing, the tree’s trunk and canopy were removed, leaving the stump protruding above ground level by about 75mm. This trunk base is located directly adjacent to the parties’ shared timber paling boundary fence, and as the trunk base thickened, it had bowed the base of the fence in, such that it encroached into the applicant’s property.

The applicant’s case

4. In respect to damage, Ms Pollachini claims that:

1. The tree’s roots penetrated her sewer, which required pipe clearance by a plumber.

2. The tree’s roots have damaged the side gate by exerting pressure on the fence, gate and external house walls.

3. The tree’s roots have damaged her side driveway, raised the soil level, and killed lawn turf.

4. The tree’s roots (and perhaps the now absent trunk) have bowed the fence, causing the fence to lean onto her property.

5. The tree’s roots have damaged her house walls around the tree location, including three bedrooms, two hallways, one bathroom, and two external walls.

6. The tree’s roots have broken a tile in her bathroom.

5. In respect to risk of injury, Ms Pollachini noted seven issues, but some of those became irrelevant after the removal of the trunk and canopy of the tree. The injury claims that remain are:

1. A trip hazard resulting from exposed roots, raised soil and cracked driveway.

2. Impairment of evacuation in case of emergency due to gate damage, plus injury potentially resulting from the use of a shovel to lever the gate open and closed.

3. Root pressure rupturing adjacent gas pipes, near the gas meter.

4. Injury to visiting grandchildren from falling internal plaster.

5. The fence falling onto her property due to storm impact and or further root damage.

The respondents’ case

6. Mr Andrew Dimitropoulos, appearing on behalf of the respondents, resists these claims, on the basis that the tree had been removed and poisoned, and that the dispute had thus been resolved.

The on-site hearing

7. The on-site hearing did not start well. From the outset, Mr Andrew Dimitropoulos adopted an indignant, aggressive tone, whilst and after taking the Court to the residual stump, and was evasive in response to my enquiries about the removal and poisoning of the tree. Upon advising him of his behavioural responsibilities to the Court and to Ms Pollachini, he modified his approach, but subsequent incidents aroused further concern.

8. The Court moved to the applicant’s property to assess the extent of damage, and risk of injury, attributable to the tree, and for submissions.

Jurisdictional requirements

9. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which this Act applies that is situated on adjoining land.

10. Ms Pollachini has satisfied the requirement under s 8(1)(a) of the Act: to serve notice to the respondents more than 21 days prior to the proceedings.

11. She has also satisfied s 10(1)(a) of the Act: to make a reasonable effort to reach agreement with the owner of the land on which the tree is situated, as displayed by direct contact, on four occasions, with Mr Andrew Dimitropoulos and other respondents, to detail her concerns. The applicant also provided copies of email communication with the agent since early 2020.

12. The next major test that is posed, by s 10(2) of the Act, is that the Court must be satisfied that the tree concerned has caused, is causing or is likely, in the near future, to cause damage to the applicant’s property, or is likely to cause injury to any person.

13. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, in relation to damage, as a rule of thumb, the ‘near future’ is deemed to be a period of 12 months from the date of the determination.

Concrete uplift and cracking

14. Tree roots normally grow laterally away from the trunk base in a loosely radial pattern. The thickening tree stump and major lateral roots have grown into the applicant’s property, underneath both a concrete garden bed edging, and the concrete driveway strip parallel and closest to the common fence line. They have clearly and directly caused uplift and cracking of this concrete.

15. With s 10(2)(a) satisfied, I therefore have jurisdiction under s 7 of Pt 2 of the Act to make a wide range of orders with respect to the tree, and I will order grinding of the stump and removal of major roots in proximity to the garden edging and driveway, replacement of this concrete garden edging and driveway strip, and reinstatement of turf in this area.

16. Camphor laurel roots are very prone to suckering, when the stump base is not poisoned correctly or sufficiently, after the trunk is removed. Based on my inspection, I believed this was the situation here.

17. Therefore, the stump shall be ground down to approximately 500 mm below the soil surface, and in the process, all roots greater than 25 mm in diameter growing into the applicant’s property, shall be severed from the stump. The residual roots in the area of soil between the stump and the boundary side of the concrete driveway strip nearest to the house shall be removed to a maximum depth of 500 mm.

18. This second driveway strip, adjacent and parallel to the house, displays no evidence of uplift or cracking, nor are tree roots evident in close proximity. No attempt should be made to remove roots which may continue under this intact driveway strip, as this may risk undermining and destabilisation.

Sewer pipe damage

19. Ms Pollachini provided a copy of a paid invoice from On Road Plumbing Pty Ltd, who, on 1 April 2020, had cleared tree roots obstructing her sewer pipe, which is located in close proximity to the tree’s surface roots. Though no tree species identification was completed for these roots, due to the absence of other trees or large shrubs near this area, I am satisfied that a causal nexus exists between the tree and the root obstruction and orders shall be made to compensate the applicant for this pipe clearance expense.

Fence damage

20. The stump is located directly adjacent to the parties’ shared timber paling boundary fence on the respondents’ property. As the trunk base thickened, it bowed the base of the fence in, such that the stump encroached into the applicant’s property. This clearly caused the fence to lean towards Ms Pollachini’s property, resulting in damage to her side gate, such that it jams and can no longer be opened or closed normally. Ms Pollachini’s son attempted to grind away part of the metal gate frame to mitigate this damage, but the damage was such, that this was not successful.

21. Orders shall be made for repair of the fence, and the gate. Palings of the fence may be damaged during grinding of the stump, and, if so, installation of replacement palings may be required. If necessary, proximal palings should be removed prior to the stump grinding. For the gate repair, insertion of a new post near the fence line may be required, to allow the gate to be appropriately re-positioned, and to ensure that the fence, and particularly the gate adjoining the fence, is supported with strength and stability.

House cracking

22. The Court was shown two areas of minor cracking on the outside brick wall of the house, which is located about three to four metres from the stump.

23. As with the second driveway strip closest to the house, there was no apparent sign of roots, nor concrete or soil uplift near the house, which directly links the tree roots as a cause of this cracking.

24. In Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 at [62], Craig J said ”something more than a theoretical possibility is required in order to engage the power under the Trees (Disputes between Neighbours) Act to make an order to remedy, restrain or prevent damage”.

25. In Stevens v Russell [2016] NSWLEC 1233 at [40], Commissioner Fakes notes that:

“it is a common assumption that the mere presence or proximity of a tree is sufficient to conclude that the tree is the cause of the damage. It is not. It is necessary to find evidence to substantiate the assumption that the tree has caused the damage. In the case of alleged root damage, some excavation is usually required.”

26. The Court viewed many examples of cracking of internal house walls and ceilings, in three bedrooms, two hallways, and one bathroom, along with a cracked tile in the bathroom. Though there may be a relationship between the tree roots and this cracking, as with the minor cracks in the outer house wall, no evidence was provided which displayed a causal link between the two.

27. Following investigations completed in February 2020, by a structural engineer acting for her property insurance company, Ms Pollachini received a building assessment report. With respect to these wall cracks, the report notes the engineer’s opinion that:

“the building walls and ceiling cracking and settlement movement have been gradual and are most likely the result of seasonal, environmental and tree root drying influences on the reactive clay foundation soil beneath the footings.”

28. Ms Pollachini noted in her application that the street where her property is located, is classified by Burwood Council as a heritage conservation area. As such, the building construction is likely to predate the introduction of building codes specifying adequate performance criteria for house footings, and thus, whilst the tree roots may have exacerbated the extent of shrinkage and swelling of the reactive Ashfield series of clays which characterise this area, based on the lack of damage to the driveway strip proximal to the house, and the absence of any excavation by the applicant to expose roots which may exist under or near the house foundations, there is insufficient evidence provided, of a nexus between the tree roots and the cracking.

29. The insurance building assessment report notes that Ms Pollachini informed the inspector, that she had noticed cracking to the double brick walls inside the home, and that the cracks had been there for some time, and gradually deteriorated.

30. Additionally, the significant drought conditions which impacted Sydney in 2018 and 2019 would almost certainly have reduced soil moisture content, which likely resulted in shrinkage of the reactive clay soils. Therefore, the exacerbation of internal wall and ceiling cracking was not unexpected during these years, and into 2020. Conversely, the cumulative impact of the return to a more normal local rainfall pattern experienced so far in 2020, may result in clays beneath the house foundations swelling, which may reduce the width of cracks, and partially mitigate the damage. This is a normal cycle.

31. After consideration of all these factors, I am not satisfied that the nexus between the tree’s roots and the house wall and ceiling cracking has been proven, and thus no orders will be made in relation to this damage.

Discretionary factors – s 12

32. As the trunk and canopy of the tree has already been removed, only s 12(i) is relevant for consideration. This considers anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant.

33. The age and nature of the structure is considered in this respect. A certain amount of wear and tear is expected to arise with any structure over time. The Court considers these matters when determining the extent to which a tree may or may not have caused the alleged damage. This consideration, particularly with respect to internal house cracks, informed the insurer’s engineer’s report, which noted “wear, tear and gradual deterioration” as the basis of the insurance claim rejection.

Risk of injury

34. Using the guidance decision published in Yang v Scerri with respect to injury, the Court considers the risk posed by a tree (or trees) based on the characteristics of the tree/s, any history of previous failures and the circumstances of the site apparent at the time of the hearing.

35. Of the claims in respect to risk of injury, listed at [5], the factors covered by (a), (b), (c) and (e) will all be resolved once the orders of the Court are implemented. I am not satisfied that the risk of injury to visiting grandchildren from falling internal plaster (claim (d)), is greater than very low. This is an acceptable risk which can easily be mitigated by removal of any loose, larger plaster pieces, and the Court’s inspection exposed few obvious pieces of masonry fitting this description.

36. The claims with respect to likelihood of injury are therefore resolved and/or dismissed.

37. In her application, Ms Pollachini provided a detailed timeline which outlined four face-to-face conversations with the respondents in late 2018 and 2019, liaison with Burwood Council in 2019 and 2020, inspections in early 2020 by an assessor, a plumber and an engineer on behalf of her insurer, and emails to and from the agent. This email correspondence with the agent from November 2019 onwards, clearly detailed and displayed photos illustrating her damage claims, plus responses, which included negotiation, from the agent, which advised that these details had been passed on to the respondents.

38. In an email to the agent dated 23 March 2020, Ms Pollachini again listed the damage to her property, advised that she was seeking legal advice, and requested that the seriousness of the matter be conveyed to the respondents. Upon receiving no response, she further advised the agent, on 15 May 2020 that she was taking this matter to the Land and Environment Court (the Court).

39. In support of the respondents’ position, Mr Dimitropoulos submitted that he read all correspondence provided by his real estate agent, but nonetheless, claimed that he had no knowledge prior to receipt of the application under the Trees Act, about any of the alleged damage caused by the tree. He was again indignant and aggressive towards Ms Pollachini, when suggesting that it had been unreasonable and precipitous for her to have lodged an application to the Court.

40. In her final submission, Ms Pollachini spoke to the details in her timeline, all of which were consistent with the evidence provided in her application. Mr Dimitropoulos offered no explanation as to why he claimed to be entirely unaware of the applicant’s emails, nor of the four face-to-face meetings held by the parties since 2018.

Conclusion

41. As s 10(2)(a) of the Act is satisfied, the Court will make orders under s 9(1) of Pt 2 of the Act to remedy this damage, caused as a consequence of the tree the subject of the application concerned.

42. To determine a quantum for compensation, the applicant shall procure three itemised quotations for the required works, from contractors who satisfy the requirements of the orders, and supply these to the Court.

43. While quotations may be sought from multiple individual contractors covering various aspects of the works, and to some extent this may be necessary, it is likely to be more expedient, and less complicated, to seek quotations from licenced builders or similar licenced contractors who have the capacity to undertake all of the concrete works, fencing, rubbish removal, and turf restoration as a single unit of work.

44. Upon receipt of quotations, which meet the conditions of the orders, the Court shall base the quantum of compensation, payable by the respondents, on the least expensive of the three quotations.

Orders

45. The Court orders that:

1. The application is granted.

2. The respondents shall reimburse Ms Pollachini the sum of $250.00, via Electronic Funds Transfer (EFT) or Bank Cheque, within 14 days of receipt of a copy of the paid invoice from On Road Plumbing Pty Ltd, dated April 2020, emailed to either the respondents, or the agent.

3. The applicant shall procure three itemised quotations from contractors, with all appropriate insurances, to grind away the tree’s stump to a depth of approximately 500 mm below the soil surface, including any junction between the stump and roots growing towards the applicant’s property, and remove all stump grindings from the site.

4. The applicant shall procure three itemised quotations, from licenced builders or similar licenced contractors, with all appropriate insurances, to:

1. Remove a length of approximately five metres of the cracked and raised concrete edging, and the concrete driveway strip, to junctions in the concrete, beyond which the driveway strip is relatively flat and level in each direction.

2. Remove roots greater than 25 mm in diameter growing into the soil area in the applicant’s property, between the stump and the boundary side of the concrete driveway strip nearest to the house, down to a maximum depth of 500 mm.

3. Repair the fence and gatepost, such that all palings are reinstated or replaced, the fence is rendered vertical, strong and stable, and the gatepost is re-positioned or replaced, such that the gate is stable and fully functional.

4. Re-instate the concrete garden edging, and approximately five metres of the concrete driveway strip nearest to the boundary, on a like for like basis, and in compliance with current building codes.

5. Re-instate the area between the driveway strips with appropriate soil mix and turf, over a distance no greater than the length of the reinstated concrete driveway.

6. Remove all rubbish from the concrete reinstatement, fence repairs, stump and root removal, and soil and turf reinstatement, from the site.

5. Within 45 days of the date of these orders, the applicant shall provide the Court, and the respondents or their agent, copies of the quotations for these works. If due to COVID-19, or another reason, the applicant cannot meet this deadline, she shall contact the Court prior.

……………………………..

J Douglas

Acting Commissioner of the Court

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Decision last updated: 30 September 2020