Treeves v Hedge [2010] NSWLEC 1344

Land and Environment Court of New South Wales

CITATION : Treeves v Hedge [2010] NSWLEC 1344

APPLICANT J Treeves PARTIES : RESPONDENTS D & D Hedge

FILE NUMBER(S) : 20660 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property; roots blocking sewer; damage to other structures; compensation

Trees (Disputes Between Neighbours) Act 2006 LEGISLATION CITED: Land and Environment Court Act 1979 Uniform Civil Procedure Rules 2005

DATES OF HEARING: 19/11/2010

DATE OF JUDGMENT: 10 December 2010

APPLICANT Mr J Treeves [litigant in person]

LEGAL REPRESENTATIVES: RESPONDENT Mr G Falvey [solicitor] SOLICITORS Falvey Associates Lawyers

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

10 December 2010

20660 of 2010 Treeves v Hedge

JUDGMENT 1 COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owner of a property in Port Macquarie against the owners of trees growing on an adjoining property. The respondents were represented by Mr G Falvey, solicitor. The application 2 The applicant is seeking the recovery of costs paid in relation to damage caused to his property by the trees. He is also seeking the recovery of future costs associated with removing the trees and rectifying the damage caused by them. 3 The trees are a Ficus benjamina (Weeping Fig) and a Liquidambar styraciflua. The damage alleged to have been caused by the trees is: - Blockage of the sewer by roots from the fig - Displacement of a timber retaining wall - Death of a section of lawn caused by shading and accumulation of leaf litter from the fig - Damage to a concrete path by tree roots 4 The applicant is concerned about future damage from roots of the Liquidambar and the Fig. 5 The costs incurred so far are itemised in a schedule of works. These include the unblocking of the sewer and the replacement of a toilet pan, applications of a chemical to control root growth, Arboricultural reports, part removal of the fig tree, applications to council and the Court, the excavation of trenches to locate tree roots and a CCTV investigation of pipe damage. These costs amount to $6,747 and are listed as 13 items in category A – 'recovery of costs paid to date'. The tax invoices for these works are attached to the schedule. 6 The future works and costs are grouped into two categories – B – 'recovery future costs – remove trees and roots' and category C – 'recovery future costs – fix structural damage'. Quotes for each of the items in these categories are attached to the schedule of works. 7 Category B contains 5 items comprising removal of the Liquidambar, grinding of the fig tree stump, removal of tree roots, rectification works to the damaged retaining wall (36m long x 600mm high) and restoration of the turf (180m2). Quotes for these works come to a total of $9,160. 8 Category C includes 4 items relating to the disconnection and reconnection of an air conditioner that will need to be moved if the concrete path is replaced, removal and replacement of 26m2 concrete pathway, sleeving of the damaged sewer pipe and the replacement of 2 toilet pans. These items total $16,875. Procedural issues Expert reports 9 Mr Falvey for the respondent submits that the arborist's reports obtained by the applicant and included in his application should not be admitted into evidence as they do not contain an acknowledgment by the arborist 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 (UPCR) and also found in the Court's Practice Direction No. 22. He also contends that the reports contain opinion evidence and hearsay. 10 In these matters, technical reports are often obtained by a party before the making of an application to the Court. These reports are typically from arborists, engineers and plumbers. The vast majority of litigants in these matters are self-represented and generally unfamiliar with the rules and procedures that govern expert witnesses. 11 It has been the Court's practice in these matters to allow reports obtained prior to the making of an application into evidence as part of the application form. This is enabled by s 31.19(3) of the UPCR, s 75 of the Land and Environment Court Act 1979 and by the Court's Practice Direction No.22. 12 However, applicants and respondents are given a written direction (Direction 14) at the preliminary or directions hearing that if they are to engage an expert witness to be present at the hearing and or to produce a report, they must advise the expert of their overriding duty to assist the Court and they must read and agree to be bound by the Expert Witness Code of Conduct. 13 If this direction is not followed, the Court may not accept the report into evidence or, depending on the circumstances of the matter, it may exercise its discretion to allow the report or the oral evidence. 14 Opinion evidence is the norm in Land & Environment Court proceedings where technical witnesses are involved. With respect to 'opinion' evidence, technical reports and expert witness reports are the opinion of the person who wrote them. However to be of use, particularly to the Court, they must state the facts and assumptions on which that opinion is based. If allowed into evidence, it should not be assumed that the report or the oral evidence will be of any assistance to the Court. 15 There have been many tree dispute matters where the Court has determined that the report, even with an acknowledgment of the Code of Conduct, is of no assistance to anyone. The respondents engaged Beukers & Ritter Consulting to prepare an engineer's report for these proceedings. The engineer makes assumptions based on the same evidence before the Court and the arborist, that is the visible roots in the trench. The report does not state whether the CCTV footage was seen or whether the toilet was inspected. The author considers the failure of part of the retaining wall to be partly caused by tree roots and partly by rotting of the base of the posts but then states that excavation behind the wall will be required to determine this. The assumption that the tree roots have contributed to the failure of the retaining wall is therefore unsubstantiated and of little assistance to the Court.