Tan v Ramakrishna

[2017] NSWLEC 1423

Land and Environment Court

New South Wales

Medium Neutral Citation:	Tan & anor v Ramakrishna & anor [2017] NSWLEC 1423
Hearing dates:	7 August 2017
Date of orders:	08 August 2017
Decision date:	08 August 2017
Jurisdiction:	Class 2
Before:	Fakes AC
Decision:	See [34]
Catchwords:	TREES [NEIGHBOURS] Damage to property; compensation; actions of the parties; failure in a storm
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Robson v Leischke [2008] NSWLEC 152
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Franciskus Tan (First Applicant) Susie Tan (Second Applicant) Rajeev Ramakrishna (First Respondent) Sheela Ramakrishna (Second Respondent)
Representation:	Applicants: Mr J Theunissen (Solicitor) TheunissenTrollop Pty Ltd Respondents: Mr T Thillai (Solicitor) William Robert Lawyers
File Number(s):	135690 of 2017
Publication restriction:	No

judgment

1. COMMISSIONER:   According to Special Climate Statement 57 – extensive early June rainfall affecting the Australian east coast, published by the Australian Bureau of Meteorology (BOM), as a low pressure trough moved off the coast early on 5 June 2016 coastal areas experienced very heavy rainfall. The low intensified into a multi-centred East Coast Low. A search of the BOM records indicates wind gusts up to 98km/hour at Sydney Airport on 4 June 2016. It was during this weather event that beachfront homes at Collaroy were severely damaged.

2. According to her affidavit (Exhibit B), Ms Susie Tan, one of the applicants, heard a loud noise at about 8.00 am on 5 June and found that a large Eucalypt had fallen onto her dwelling. The tree was located on the respondents’ adjoining property, close to the dividing fence. The fallen tree damaged the roof leading to the ingress of water. A panel of timber dividing fence was also damaged. The tree was suspended by the roof above an in-ground swimming pool.

3. Ms Tan contacted one of the owners of the property, Dr Ramakrishna, and advised him of the fallen tree. Dr Ramakrishna reportedly directed Ms Tan to the managing agents for his rental property, Strathfield Partners. Ms Tan contacted the managing agents the next day. Mr Tony Gereige from that office attended her property that day to inspect the tree; he advised that he would speak to his client and send some tree “loppers” around to have a look. According to her affidavit, Ms Tan had also organised an arborist to have a look at the tree. Ms Tan’s and the agent’s arborists independently viewed the tree on the afternoon of 6 June.

4. Ms Tan’s affidavit records ensuing events, conversations and emails with various arborists, and Mr Gereige regarding the removal of the tree. Ms Tan was concerned that that the method of removal described by the agent’s arborists would potentially cause damage to the recently renovated swimming pool. Following her conversations with arborists, Ms Tan formed the opinion that a crane would be required, and given the possible damage to her driveway, it should be located elsewhere.

5. On 8 June Mr Antonio Grieco, from Strathfield partners, wrote to Ms Tan advising that the respondents had lodged an insurance claim. Mr Greico states that access to Ms Tan’s property has been restricted by her and that her specific instructions for the manner in which the work is to be conducted has delayed the tree’s removal. He states that a tree company had been engaged and that an insurance assessor from NRMA would be on site the next day. Mr Grieco also notes that the applicants were uninsured at the time of the tree failure.

6. On 9 June 2016, Ms Tan responded by email saying she was unhappy with the measures proposed by the respondents’ arborists to protect the pool and that they would not show her a copy of their insurance policy. She demanded that the respondents retrieve their tree from her property back onto their property and dispose of it from there.

7. There is no evidence of any assessment report from the NRMA assessor. In her affidavit, Ms Tan notes the conversation with the assessor. In essence she claims that the assessor said that as the tree was now on the applicants’ property it was their responsibility to remove any part of it beyond the fence line.

8. After assuming that no-one else was going to pay for the removal of the tree or arrange repairs in a timely manner, Ms Tan started contacting builders and arborists. In a letter dated 17 June 2016, Mr Ian Hills, a consulting arborist, states that his opinion relates solely to the removal of the tree and not to the cause of failure or for any other claims arising from it. In his opinion, the use of a crane would be the safest method and would also minimise risk of further property damage.

9. Ms Tan engaged and paid Sydney Arbor Tree Services to remove the tree from her property. This work was carried out on or about 21 June at a cost of $7,700. Ms Tan then engaged Everbuild Constructions to repair her damaged property at a cost of $14,245 with an additional $1,147.50 for replacement of a fence panel.

10. As a consequence, the applicants have applied under s 7 Part 2 of the Trees (Disputes Between neighbours) Act 2006 (Trees Act) for orders seeking reimbursement of $23,257.50 for the removal of the tree and repairs to their property.

11. In addition, the applicants are seeking orders for the removal of a small Ironbark, probably Eucalyptus sideroxylon, growing very close to the dividing fence and causing damage to it.

12. 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.

13. Injury is not pressed. The tests in s 10(2)(a) must be applied to each of the trees the subject of this application.

14. The hearing was held on site and both parties’ properties were inspected. Nothing remains of the fallen eucalypt (Tree A) except sawdust/grindings and remnants of a stump. Photographic evidence included in the application claim form demonstrates that the tree was principally located on the respondents’ property, very close to the dividing fence. Tree B, the Ironbark, is a small specimen; the base of it is principally located on the respondents’ property however the main trunk straddles the boundary. The dividing fence has been constructed with a gap to accommodate the tree. The tree is in fair condition and appears somewhat suppressed by the canopy of a mature Jacaranda growing in the respondents’ back garden. I was advised that the respondents had applied to Strathfield Council to remove the tree but consent was not granted.

15. The respondents, through their solicitor Mr Thillai, reject the applicants’ claims. The respondents rely on a number of affidavits and an Arborist’s Report from Mr Mark Hartley.

16. In preparing for these proceedings, the respondents engaged Mr Hartley to visit the site and review documents provided to him. He was asked to form an opinion as to the health of the tree that failed and possible reasons for its failure, and to assess the Ironbark.

17. Mr Hartley’s report (Exhibit 5) indicates that the tree that failed appeared to be healthy with a normal and quite dense canopy. His investigations of BOM data showed Strathfield recorded 265mm of rain over three days commencing 4 June 2016 with wind gusts up to 90 km per hour. Mr Hartley reasonably assumes that the soil was very moist and offered less structural support than it might normally provide. He notes that on the Beaufort Scale of wind speeds, winds between 88-102 km per hour are described as ‘storm’ winds which can uproot trees. Mr Hartley states that the photographs provided to him do not show any signs of basal lesions or fruiting bodies and there no columns of decay seen in any of the cut sections of trunk. He says there may have been some decay or damage to roots on the eastern side of the trunk [respondents’ side] perhaps associated with a root growing at a tangent to the trunk but nothing was left of it for him to examine. Mr Hartley states it is unclear as to when the applicants’ pool was installed and to what extent root severance on that side of the fence may have contributed to the failure of the tree.

18. In Mr Hartley’s opinion, given the absence of any obvious signs, it is highly unlikely that a member of the general public, and probably most arborists, but specifically the respondents, their tenants and the managing agents, would have had any reason to question the stability the tree prior to its failure.

19. In regards to Tree B, the Ironbark, Mr Hartley notes that the tree has been inexpertly lopped in the past, and for no apparent reason. There are no signs of instability or risk of failure of any part of it. He considers the risk of harm to anyone as remote.

20. In other affidavits filed by the respondents, Dr Rajeev Ramakrishna, the first respondent (Exhibit 1) states that when he received a call from Mr Tan on 5 June 2016 he advised Mr Tan to contact the SES and to inform his property agents. He states that the tree was well-established when he purchased the property in 1993. While he has never lived there, Dr Ramakrishna states that he was unaware of any issues with the tree that failed or any other tree on his property. Affidavits from the tenant and Mr Frank Portolesi, from Strathfield Partners, also state they were unaware of any problems with the tree prior to its failure.

21. The parties’ solicitors prepared written submissions.

22. Mr Thillai for the respondents submits that there is no evidence that either of the applicants had raised any concerns with the respondents about the tree that failed, or any other tree, prior to its failure. The respondents had no knowledge of any problems with the tree and had not breached any duty to prevent any risk of damage or injury to the applicants. In relying on Mr Hartley’s report, Mr Thillai presses the storm as the primary cause of failure. He contends that there are no reasons in the circumstances of this case to shift the incidence of loss from the applicants to the respondents. Mr Thillai cites the findings in Robson v Leischke [2008] NSWLEC 152 to support his contention. In respect of Tree B, Mr Thillai notes there are no arboricultural reasons why the tree should be removed.

23. Mr Theunissen for the applicants contends that after becoming aware of the nuisance, being the fallen tree, the respondents failed to take action to remove the tree in a timely manner. In essence, he submits that having therefore adopted the nuisance, the respondents should be responsible for the costs arising from it.

24. Mr Theunissen maintains that this matter can be distinguished from Robsonv Leischke on a number of grounds. In Robson, the tree was removed by the SES and the house waterproofed to prevent further water damage; in this matter, the applicants did not have such assistance and had to remove the tree at their own cost. Mr Theunissen submits that the tree was already pushing against the fence and there may have been water around the base of the tree, potentially due to a leaking outdoor bathroom and thus not limited to heavy rain. He notes the comment in Mr Hartley’s report that there may have been root decay. Further, in Robson, the wind gusts reached 135 km per hour or ‘hurricane’ force, with wind speed being measured exponentially rather than in a linear manner.

25. In regards to Tree B, Mr Theunissen contends that it should be removed as the tree is pressing against the dividing fence; it has been lopped; and contributes very little to amenity.

Findings – Tree A – the fallen tree

26. Both solicitors have cited Robson v Leischke [2008] NSWLEC 152. That matter concerned a large Eucalypt which fell in the storm event of 8-9 June 2007 that led to the grounding of the ore carrier Pasha Bulker on Newcastle Beach. An East Coast Low pressure system brought gale force winds and rain to Newcastle and the Central Coast of NSW.

27. The matter was heard by Chief Justice Preston. In that matter, some of the stump remained. In my view, the circumstances are very similar to the matter before me.

28. In summary:

• I am satisfied that the tree that fell was principally situated on the respondents’ land (s 4(3)). While the tree has been removed, there is evidence that it existed at the time the damage occurred (s 4(4)).

• I am satisfied that the tree caused damage to the applicants’ property on the applicants’ land, specifically to the house and the dividing fence (s 10(2)(a)).

• While the parties differ in their interpretation of a reasonable effort to reach an agreement, I am satisfied that an effort has been made (see Robson v Leischke at [191]-[196]) (s 10(1)).

• As a consequence, the Court’s jurisdiction to consider what, if any, orders should be made under s 9 of the Trees Act is engaged.

29. On the evidence before me, I find that:

• The tree failed in a severe storm event that caused major damage along the coast;

• There is no evidence to substantiate Mr Theunissen’s submissions that the tree was leaning on the fence or that there was a water leak;

• With the arboricultural expertise I bring to the court I consider Mr Hartley’s opinion to be entirely reasonable. While he states there may have been root decay, he also states that there are no external signs of any decay in the roots or parts of the stem shown in any of the photographs – I concur with this; while it is possible that roots may have been severed during the construction of the applicants’ pool there is no actual evidence to support this.

• I also accept Mr Hartley’s opinion that there was unlikely to be any unusual signs to lead anyone to conclude that an otherwise apparently healthy tree was going to fall over; that is the respondents had no constructive knowledge of any problems with the tree.

• There was no act or omission of either party that contributed to the tree falling.

30. As discussed by His Honour in Robson at [224] to [228], there is no reason in this matter to shift the incidence of loss from the applicants to the respondents. The applicants argue that the respondents took an unreasonable amount of time to have the tree attended to; they were also dissatisfied with the methods of removal proposed by the property agent’s arborists. As a result, the applicants voluntarily assumed the risk by undertaking the removal of the tree at their expense. I am satisfied that the respondents made reasonable efforts to have the tree removed. The fact that the applicants were uninsured at the time should not place the burden for compensation on the respondents. The loss is therefore where it falls, that is with the applicants.

31. Therefore no orders will be made requiring the respondents to pay the compensation sought by the applicants.

Findings – Tree B – Ironbark

32. I am satisfied that this tree is principally on the respondents’ land. I am also satisfied that the tree has caused some minor damage to the dividing fence, sufficient to meet the relevant tests in s 10(2)(a). While the current damage is minor displacement, it is inevitable that the tree will continue to grow, albeit slowly given its relatively poor condition, and will continue to displace the fence. I agree with the applicants that the amenity it provides is of limited value.

33. For practical reasons I am ordering the removal of the tree at the respondents’ expense as well as the replacement of the small section of fence that has been removed to accommodate the tree. This may amount to the end panel of fence.

Orders

34. On the evidence before me, the Orders of the Court are:

1. The application for compensation is dismissed.

2. Within 30 days of the date of these orders, the respondents or their agent are to engage and pay for an arborist with a minimum qualification of AQF level 3 in Arboriculture and with appropriate insurance cover, to remove the Ironbark at the rear of the respondents’ property to ground level. The roots are to be ground to a depth of at least 200mm and the area made good.

3. The work in (2) is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry or its equivalent.

4. Should it be required, the applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and or the safe and efficient carrying out of the works in (2).

5. Within 14 days of the removal of the tree, the respondents or their agent are to engage and pay for a fencing contractor to replace the missing section of fence.

6. The applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and or the safe and efficient carrying out of the works in (5).

7. The respondents or their agent are to provide the respondents’ tenants reasonable notice of the timing of the works in (2) and (5).

____________________

Judy Fakes

Acting Commissioner of the Court

Decision last updated: 09 August 2017