Stewart v Harmohinder Sharma

[2008] NSWLEC 1099

Land and Environment Court

of New South Wales

CITATION:

Stewart v Harmohinder Sharma [2008] NSWLEC 1099

PARTIES:

APPLICANT
David and Janice Stewart

RESPONDENT
Harmohinder Sharma

FILE NUMBER(S):

21222 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- Compensation costs, removal of trees, installation of boundary fence

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

12/02/2008

EX TEMPORE JUDGMENT DATE:

12 February 2008

LEGAL REPRESENTATIVES:

APPLICANT
David and Janice Stewart, litigants in person

RESPONDENT
Dr Mittal
for Harmohinder Sharma, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

12 Febraury 2008

21222 of 2007

David and Janice Stewart v Harmohinder Sharma

JUDGMENT

The decision was given at the hearing on 12 February 2008.
This written judgment reflects the findings and the background documentation provided as part of the proceedings.

1 ACTING COMMISSIONER: Mr and Mrs Stewart bought their property with an old, concrete-block garage in the backyard. Located near the back boundary, the floor of the garage is up to 1 m below ground level. The walls are not reinforced, and surrounding soil is in contact with the walls. The Stewarts have built a studio on top of the garage, and a swimming pool on the uphill side of the garage. Now, when the garage is almost 50 years old, a below ground section of wall has cracked and water leaks in during wet weather. The Stewarts claim that roots of a few small trees growing on the neighbour’s property have cracked the wall. They also claim that branches of the trees have damaged the studio. It seems that early resolution of some issues was hindered by misunderstandings of common law rights to prune overhanging branches, and confusion over the process to apply for pruning of a small Pittosporum tree under the Parramatta City Council Tree Preservation Order.

2 The Stewarts seek compensation of $10,817.40 for the estimated cost of repairs to the garage. They also seek removal of the trees, and installation of a boundary fence beside the garage.

3 Dr Mittal, the previous owner of 29 Arkana Street Telopea, who is representing the current owners, seeks $6,125 for the cost of reports and his time. He is also seeking compensation for stress, anxiety and inconvenience.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met before making an order regarding the tree.

These tests are:
Has the tree caused damage to the applicant's property ?
Is the tree now causing damage to the applicant's property ?
Is the tree likely in the near future to cause damage to the applicant's property ?
Is the tree likely to cause injury to any person?

5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

The Issues

6 The issues in this case are:

• Who is the owner of the property where the trees are growing ?
• Have the trees caused damage, are they causing damage, or are they likely to cause damage to the Stewart’s property ?
• If the trees have caused damage, should the Stewarts receive compensation, and if so, how much ?
• Are the trees likely to cause injury, and if so, what should be done to avoid that ?
• Should the Court order installation of a boundary fence ?
• Should Dr Mittal receive compensation for the cost of reports and his time, and if so, how much ?
• Should Dr Mittal receive compensation for stress, anxiety and inconvenience ?

The owner of the property where the trees are growing

7 The trees are growing in the backyard of 29 Arkana Street Telopea. This property was owned by Dr Mittal and/or his family when the Stewarts made their application to the Court. The property has since sold and the new owners are Harmohinder Sharma and Gunjan Sharma.

8 Mr Harmohinder Sharma attended the hearing and I confirmed his identity by sighting his NSW driver’s licence with photograph.

9 Mr Sharma confirmed that Dr Mittal was representing him in this matter, and on this basis I am satisfied that the hearing should proceed.

Have the trees caused damage ?

10 In order to assess the claims, I have considered the nature of the trees and the garage, then the following three elements of the claims of damage.

• The first element is above ground damage. The Stewarts claim that branches of the trees have damaged the roofing, guttering and fibrous sheet cladding at the top of the western end of the wall, and the guttering is blocked by tree debris;
• The second element is below ground damage. The Stewarts claim that roots of the trees have damaged the eastern end of the concrete block wall below ground;
• The third element is that the garage now floods as a result of the damaged wall, and goods, stock and power tools are being damaged.

The Trees

11 There are five small trees are growing in a line along the northern wall of the Stewarts’ garage. The trunk of each tree at ground level appears to be fully within Mr Sharma’s property.

12 The trees from east to west are:

Mock Orange bush ( Murraya panniculata ) 3 m tall, trunk diameter of 50 mm at ground level;
Mango sapling ( Mangifera indica CV ) 2 m tall, trunk diameter of 50 mm at ground level;
Lemon tree ( Citrus limon CV ) 4 m tall, trunk diameter of 120 mm at ground level;
Pittosporum / Native Daphne ( Pittosporum undulatum ) 4 m tall, trunk diameter of 150 mm at ground level;
Dwarf Umbrella tree ( Schefflera venulosa ) 1 . 5 m tall with compound trunk diameter of 300 mm at ground level.

13 The Stewarts advise that there were no trees beside the northern wall of the garage when they bought their property in 1989. Dr Mittal advises that there were trees present when his family bought 29 Arkana Street in 1997.

The Garage

14 The garage was present when the Stewarts bought 5 Wesley Street Telopea in 1989. Neighbours have advised them that the garage was built in 1960.

15 The outside of the northern wall of the garage is roughly parallel with and approximately 0.3 m on the Stewarts’ side of the common boundary. There is no fence on the common boundary beside the garage.

16 The garage walls are constructed of concrete blocks, having columns at about 1.8 m spacing and panels between. Mr Stewart advised that the columns are filled with reinforced concrete but the panel blockwork is hollow.

17 The floor of the garage is approximately 1 m below ground level at the eastern end of the northern wall, reducing with the natural fall of Mr Sharma’s land to be approximately 0.3 m below ground at the western end.

18 There is no cavity between the soil in Mr Sharma’s backyard and the northern wall of the garage. The soil is roughly level from Mr Sharma’s backyard to the wall. The Stewarts advised that has been the case since they bought their property.

19 The Stewarts obtained Council consent in 1996 for a studio above the garage. Mr Stewart consequently carried out that construction which included new roofing, guttering and fibrous cement wall panelling at the top of the northern wall of the garage.

Above Ground Damage to the garage

20 Some leaves and twigs of the Mock Orange and Lemon tree overhang the roof of the Stewarts’ garage by up to 0.5 m but these do not appear to have caused any damage. The Mango does not contact the garage wall or reach to the guttering.

21 The trunk of the Pittosporum crosses the common boundary at a height of approximately 1 m above ground. One branch presses on the guttering, and leaves and twigs overhang the roof of the Stewarts’ garage by up to 0.5 m but none of these appear to have caused any damage.

22 The Dwarf Umbrella tree has been pruned and is now clear of the garage. There is a short length of dead branch from this tree, approximately 30 mm thick, caught between the roof and guttering of the garage. That branch has pushed the guttering slightly out of alignment. A cladding panel of fibrous cement fitted between the top of the concrete block wall and the roof, apparently without any continuous fixing along its bottom edge, is slightly bowed out; possibly caused in the past by small branches of this tree. There are three locations where the bottom edge of the cladding has been broken, up to 10 mm in height and 20 mm in length, and a short vertical crack, all which may have been caused in the past by this tree.

23 There was some mortar missing from joints between the concrete blocks. This may have been caused in some instances by hammering of nails into the wall, but most appeared to be lack of joint filling at construction or failure of the mortar since.

24 No cracks were observed in the above ground blockwork of the northern wall.

Below Ground Damage to the garage

25 The only below ground section of the wall inspected was the eastern panel of the northern wall, from inside the garage. The floor at that section is about 1 m below the outside ground level.

26 I observed fine cracks along various horizontal and vertical mortar joints and vertically across one block at the base of the wall. There was a slight bowing inwards of the centre of the panel, being less than 5 mm when tested by Mr Stewart with a straight-edge. Some of the cracks were damp and there appeared to be smooth calcium build up in some locations and crystallised salt residue along and near some of the cracks.

27 No other below ground areas were inspected because the internal walls of the garage were hidden by cabinets and stored materials, and no external area was excavated.

Damage to goods, stock and power tools in the garage

28 No actual damage was presented, but Mr Stewart mentioned past damage and the likelihood of further damage due to flooding and moisture.

Findings in relation to damage

29 I am not satisfied that the above ground parts of the Murraya, Mango or Lemon have caused, are causing, or are likely in the near future to cause damage to the Stewarts’ property.

30 I am satisfied that the above ground parts of the Dwarf Umbrella tree have caused damage to the applicants property, however that damage is minor, and Dr Mittal has already pruned the tree well clear of the garage so that no further damage should occur in the near future.

31 I am satisfied that the above ground parts of the Pittosporum tree may cause damage to the guttering of the applicants garage in the near future, however that damage would be very minor.

32 As Mr Stewart built the studio on top of his garage, and has advised that he is able to climb along the roof on the northern side of his garage, I consider that he would have been aware of the trees, and could have kept them clear of the structure.

33 In relation to below ground parts of the trees, I have not been provided with any evidence that the roots of these small trees have caused the visible damage to the garage wall, nor that they will cause damage in the near future.

The Stewarts’ Claim for Compensation

34 The Stewarts seek compensation for various damages. These relate to the northern wall of their garage and they have presented an itemised account for rectification costs totalling $10,817.40.

35 In relation to the claim for damage to the roof, guttering and fibrous cement cladding of the garage, this being the first element of the claim, I find that there should be no order for compensation as the damage is minor and Mr Stewart could have easily avoided the damage by pruning back the plants that grew over his property.

36 In relation to the claim for damage to below ground parts of the garage wall, this being the second element of the claim, I find that there should be no order for compensation as no evidence has been provided and it is not likely that the trees caused the damage.

37 In relation to the claim for water damage, this has no basis as the trees have not been found to be the cause of water entry to the garage.

Are the trees likely to cause injury ?

38 The Stewarts claim that the wet garage floor is a slip hazard, and presents a risk of electrocution if power tools are used. As the trees have not been found to be the cause of water entry to the garage, neither are they the cause of any risk associated with that water.

Should the Court order installation of a boundary fence ?

39 At the hearing the Stewarts and Mr Sharma discussed the need for a fence, and although unresolved they are aware that access to the outside of the garage wall for repairs or maintenance would be more difficult if a fence was installed. As the damage caused by the trees is minor, and the parties are willing to discuss the fence and maintenance issues, there is no reason for the court to order installation of a fence.

Dr Mittal’s Claims for Compensation

40 Dr Mittal, the previous owner of 29 Arkana Street Telopea, and representative of Mr Sharma in this case, has presented a claim for the cost of three reports totalling $1,265 and $4,860 for his own time.

41 I find that no compensation is appropriate for the cost of the reports as none have provided conclusive evidence on any of the matters in contention.

42 Commissioners who deal with applications under the Act are not authorised to decide applications for legal costs, and cannot award costs for preparation or appearance by non-legal persons. Therefore no compensation can be ordered for Dr Mittal’s time.

43 No evidence has been provided by a professional ‘at arm’s length’ from Dr Mittal to support his claim for compensation for stress, anxiety or inconvenience. Therefore I do not find that the court should order such compensation.

Conclusion

44 I find that very minor damage was done to a fibrous wall sheet and to guttering by the Dwarf Umbrella tree, but the tree has already been pruned and no compensation is appropriate.

45 I find no evidence has been provided that any of the trees have damaged the below ground section of the garage wall, and therefore no compensation is appropriate.

46 Ordinarily, I would find no reason to order any intervention with the Pittosporum tree but the tree needs to be pruned to avoid damage to the guttering in the near future. Both parties at the hearing were willing to prune the tree. Therefore, in order to resolve the matter without putting the parties to the further cost and delay of applying to Parramatta Council, I propose to order pruning of the tree.

Orders

47 The Orders of the Court are:

A. The application is upheld, in part;
B. The Stewarts shall prune off the above ground parts of the Pittosporum undulatum tree that overhang their property, by 31 March 2008, at their cost;
C. Mr Sharma shall permit access to his property for the purpose of the above pruning provided that access is on reasonable notice and at a reasonable time.

___________________

Peter Thyer
Acting Commissioner of the Court

The formal orders are not included as part of this judgment but a copy may be obtained from the Court’s registry upon payment of a fee. Details are available on the Court’s web site at