Land and Environment Court of New South Wales CITATION : Fotoulis v Taylor [2009] NSWLEC 1179 APPLICANT Peter Fotoulis PARTIES : RESPONDENT John and Miro Taylor FILE NUMBER(S) : 20176 of 2009 CORAM: Fakes AC KEY ISSUES: TREES (NEIGHBOURS) :- removal of the trees, damage to property, cause injury to persons LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 29 May 2009 EX TEMPORE JUDGMENT DATE : 29 May 2009 APPLICANT Mr P Fotoulis (Litigant in Person) LEGAL REPRESENTATIVES: RESPONDENT Mr J and M Taylor, (Litigants in Person) JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes AC 29 May 2009 20176 of 2009 Peter Fotoulis v John and Miro Taylor JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Peter Fotoulis who owns a property that he rents at 25 Nundah Place Woronora against the owners of three trees growing at 29 Nundah Place. That property is owned by John and Miro Taylor. The trees are two Corymbia citriodora (Lemon-scented Gum) and one Angophora costata (Smooth-barked Apple). [The gums have bark that is more typical of the related C. maculata or Spotted Gum, but the leaves and the fruit are more typical of Lemon-scented Gum.] 2 The applicant is seeking the removal of the trees. He is concerned that the largest of the trees (tree 1 – Lemon-scented Gum) has caused damage to his property and will continue to do so. He is also concerned that a possible structural problem in the upper canopy of the tree that was identified in an arborist's report could fail and cause injury to anyone in the house. He is concerned that the other two trees, tree 2 another Lemon-scented Gum and tree 3 the Angophora, are growing close together and are both leaning towards his house. He fears they may fall onto his house sometime in the future thus causing damage and or injury. All trees are to the north of the applicant's property. 3 The applicant contends that the largest of the trees, tree 1, has lifted and cracked a section of concrete pathway, has lifted the colour-bond dividing fence and has lifted the front western corner of the house leading to cracking of the plaster above the window frame and displacement of the window to a point where the sliding glass panes cannot be secured. 4 Mr Fotoulis is seeking compensation of an amount of $4275 for the following items: a quote of $490 to repair the fence, a quote of $2560 to remove and relay the path, a quote of $550 to remove and refit the window reimbursement of $400 for a structural engineer's report and $275 for an arborist's report. 5 The trees were inspected from both properties and the condition of the window and surrounding plasterwork was inspected from inside Mr Fotoulis' property. 6 Tree 1 is a mature and healthy specimen about 25 m tall with no obvious structural defects. It is thought to be at least 35 years old as the respondents have lived on their property for 30 years and remember the trees as being present, but much smaller, when they arrived. The tree is now some 250-300 mm from the dividing fence and within 1.5-2 m from the applicant's house. 7 There is significant displacement and lifting of the concrete pathway adjacent to the tree, with the lift being greatest close to the tree. There is also some lifting of a low brick wall, some 2 bricks high, that retains soil on the up-slope /tree-side of the path. There is some lifting of a section of the metal fence with a slight gap of 10-12 mm between the upper sections of 2 posts of adjoining sections closest to the tree. There is no buckling or displacement in any other direction. 8 The applicant's house is timber-framed and vinyl-clad on piers with a brick wall footing. That brick wall is continuous at the front of the property but discontinuous along the northern side of the house. In the absence of a spirit level it did appear that there was some displacement of the front window on the north-western/western corner of the house. The applicant pointed out a very fine hair-line crack in the corner of the front wall to the south of the window however there was no major cracking or displacement of the brickwork in the immediate vicinity of the tree. 9 In 2008, the applicant obtained a structural engineer's report and subsequently, an arborist's report. 10 The engineer's report was prepared by Soliman Hanna of Soliman Hanna and Associates, Consulting Civil and Structural Engineers. In that report, Mr Hanna states that the "inspection was only limited to visual aspects of the wall and its footing, without undue interference of the building's structure, fittings and finishes." His report says nothing about the wall and the footings but mentions the obvious damage to the concrete path, brick pavers and the misalignment of the side gate. There are no brick pavers, rather the small wall of bricks referred to in paragraph 7 of this judgement. 11 The engineer states that "there is a very large gum tree on no. 29, directly adjacent to the side gate. Given the close proximity of the tree and the extensive roots it has, we are satisfied that the tree roots have caused these damages [sic]." Nowhere in the report does it state that roots were seen or by what means the engineer obtained any information on the nature and extent of the tree's root system. 12 The arborist's report prepared by Paul Vezgoff of Moore Trees also notes the lifting of the pathway and makes a similarly unsubstantiated assumption of causation. 13 Whilst the engineer and the arborist have made what is prima facie a reasonable assumption they have both failed to substantiate or validate that assumption. When the site was viewed at the hearing, it was clear that both the engineer and the arborist had the opportunity to remove soil to prove the presence or absence of roots. In these matters, the onus of proof of causation of damage rests with the applicant. The applicant could have undertaken his own investigation but in this case he referred it to two technical experts. Nothing in the technical reports indicates any attempt by either the arborist or the engineer to carry out an investigation to prove that the damage was caused by the nearby Lemon-scented Gum. The reports have provided little value to the applicant and subsequently have been of limited use to the Court. 14 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. 15 The Court must also consider a number of matters under section 12 of the Act. The relevant clauses in this case are: (a) The trees are wholly on the respondents' land. (d) Due to the flowering habits of these trees, they are likely to make some contribution to biodiversity. The Angophora costata is endemic to the area and is this part of the natural ecosystem. (e) The trees do make a contribution to the natural landscape and the scenic value of the land on which they are situated. However, the presence of many other trees on the property as well as nearby bushland would mean that the loss of the trees would have less visual impact than if these were the only trees in the area. (g) Trees 2 and 3 are growing out of a rocky embankment so their removal may have an impact on soil stability (h) Anything other than the tree that may contribute to the damage or any action or omission by the applicant or the tree owner. The applicant sought permission from Sutherland Shire Council to have tree 1 removed. This was granted subject to permission being received from the tree owners. There is a large Liquidambar styraciflua (Liquidambar) located in the front garden of the applicant's property. This is a mature tree some 8 metres from the north-western corner of the house. There are woody roots visible on the surface. The Taylors received advice from a chamber magistrate at Sutherland Local Court that it would be prudent to have the roots that were allegedly causing damage to the applicant's house correctly identified by an expert in these matters before agreeing to have their tree removed. Mr Taylor stated that he gave this advice verbally to Mr Fotoulis but this course of action was not pursued by Mr Fotoulis. Mr Fotoulis sought advice from the structural engineer and the arborist. 16 At this stage, the owners of the tree have no objection to the removal of three Lemon-scented Gums on their property but could not afford to have them removed in one go. [It is noted that the third Lemon-scented gum referred to by the respondents is not subject to this application]. 17 Coming back to section 10(2) of the Act, the four elements of this section must be applied to each tree. Trees 2 and 3 have not caused, are not causing, and are unlikely, in the near future, to cause damage to property or injury to persons. 18 With respect to tree 1, despite the lack of hard evidence, the balance of probability is that given its proximity to the house and the pathway, it is reasonable to assume that this tree has caused the material damage to the path. The uplift of the fence is also likely to be a result of the tree but there is no material damage, merely a gradual rise in the profile. The alleged uplift of the house and the measurable displacement of the window is not proven beyond reasonable doubt but, on the balance of probability, is also likely to be associated with this tree. 19 The tree is in its early maturity and given its growing position in a moist and sheltered gully it will continue to grow. The damage to property could not be abated by root-pruning as to do so would compromise the stability of the tree and thus pose a risk of injury to anyone on both properties. 20 After viewing the evidence and hearing from the parties, the Orders of the Court are as follows: 1. The application to remove trees 2 and 3 is refused. 2. The application to remove tree 1 is upheld. 3. The claim for compensation for the fence is refused as there is no material damage and the removal of the roots beneath the fence may see the fence subside to its original position. 4. The claim for compensation for the structural engineer's report and the arborist's report is refused as Commissioners do not have the jurisdiction to award costs. 5. The claim for compensation for the removal and refitting of the window is refused as the possible contribution from the Liquidambar cannot be discounted and evidence of causation has not been proven. 6. With respect to the removal of the tree, the work is to be organised and paid for by the respondents. This is to be carried out within 120 days of the date of these orders. The tree is to be removed to within 300mm above ground level. All roots and the base of the stump to a distance of 500 mm from the fence line are to be removed to a depth of 300 mm below ground [that is, the entire stump does not have to be removed, only the section closest to the fence]. 7. The work is to be carried out by an AQF 3 level arborist with appropriate insurances and in accordance with the WorkCover Code of Practice for the Amenity Tree Industry. The applicant and his tenants are to provide all reasonable access for this work to be carried out safely. The respondents and their arborist are to provide at least 3 days notice to the tenants and the applicant. 8. With respect to the path, the respondents are to obtain 3 quotes for the removal and replacement of the 4 m section of concrete from the point at which it has lifted to the joint just beyond the gas cylinder stand. These works are to include the removal of any roots beneath the old path. These works are to be carried out after the removal of the tree and within 6 months of the date of these orders. The respondents are to pay for the work and the applicant is to reimburse the respondents for 30% of the cost of the path within 21 days of the receipt of a tax invoice for the completed works. The respondents are to give the tenants and the applicant at least 5 days notice of the commencement of the works. The tenants and the applicant are to provide all reasonable access for both the quoting and the carrying out of the work. ___________________ J Fakes Acting Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.