Land and Environment Court of New South Wales CITATION : Ruskin v Koopelian [2008] NSWLEC 1225 APPLICANT Darrell Ruskin PARTIES : RESPONDENT Armen & Annisa Koopelian FILE NUMBER(S) : 20186 of 2008 CORAM: Thyer AC KEY ISSUES: Trees (Neighbours) :- Damage to property, removal of tree, risk of injury, compensation LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 23/05/2008 EX TEMPORE JUDGMENT DATE : 23 May 2008 APPLICANT Mr D. Ruskin, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Mr A. Koopelian, litigant in person Mrs A. Koopelian by telephone JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 23 May 2008 20186 of 2008 Darrell Ruskin v Armen & Annisa Koopelian JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006. These orders are not reproduced as part of this decision but a copy of the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 ACTING COMMISSIONER: The neighbouring homes of Mr Ruskin and the Koopelians in Rainforest Street, Wyoming are surrounded by tall forest. Mr Ruskin has a problem with four trees in the Koopelians' front yard including an Illawarra Flame Tree and a Turpentine tree. 2 I am advised by Mr Ruskin that his house and driveway were built about 25 years ago and the carport about 20 years ago. He also advised that no slabs of the driveway were lifted when he bought the property in 2002. 3 Mr and Mrs Koopelian bought their adjoining property in 2003 and the Illawarra Flame Tree was growing very close to Mr Ruskin's carport and driveway at that time. The Koopelian's written submission states that at the time of purchase the real estate salesmen noticed damage to Mr Ruskin's carport and made comment that the tree should never have been planted so close to the boundary, but as the damage was pre-existing the matter should have been dealt with by the previous owners. At the hearing Mrs Koopelian explained that what was observed in 2003 was recent cutting of the carport slab back to the boundary, and the crack between slabs at the front of the carport, but no lifting of the driveway. 4 In November 2006 Mr Ruskin noticed that the driveway slab in front of his carport was raised about 2 cm adjacent the Illawarra Flame Tree by a root that was visible at the edge of the slab. He assumed the root was from the Illawarra Flame Tree. He brought this to the Koopelians' attention in March 2007 as their property was tenanted and that was the first time he saw them since he noticed the damage. 5 Mr and Mrs Koopelian suffered employment and financial difficulties, separated in October 2007 and are going through a divorce. Communications between Mr Ruskin and the Koopelians and the agent for their property did not result in any action to stop the root further damaging the driveway. 6 The driveway is now lifted 4 cm and pushing against the brick pier of the carport. 7 Mr Ruskin seeks removal of the Illawarra Flame Tree and three other trees near the driveway, and removal of roots of all four trees that are under the driveway. He also seeks compensation of at least $5,050 for damage to the driveway, costs, and the proposed removal of the four trees and tree roots. 8 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 by each tree before making an order regarding that 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? 9 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 location and the four trees 10 Mr Ruskin's property at 58 Rainforest Road, Wyoming is located on the northern side of the Koopelians' property 56 Rainforest Road, Wyoming. The properties are in a bushland setting with many trees on these and surrounding lots, and forest at the rear of the properties. The four trees are situated in the front yard of the Koopelians' property. 11 The Illawarra Flame Tree (Brachychiton acerifolius) is reported to be about 15 years old. It is about 10 m tall with the trunk about 0.5 m from the common boundary just in front of Mr Ruskin's carport. This tree is healthy with a dense, well balanced crown. 12 The Turpentine tree (Syncarpia glomulifera) is a healthy, immature specimen about 12 m tall growing near the Koopelians' front boundary. It is about 2 m from Mr Ruskin's driveway. 13 The Wattle is a mature tree about 5 m tall in fair condition. Its trunk adjoins the eastern side of the trunk of the Turpentine. 14 The Paperbark is a mature tree about 5 m tall in good condition. Its trunk adjoins the southern side of the trunk of the Turpentine. The issues 15 The issues in this case are: o Damage caused to Mr Ruskin's driveway and carport by the Illawarra Flame tree; o Likelihood of injury to any person by the Illawarra Flame tree or from damage to structures caused by the Illawarra Flame tree; o Should anything be done with the Illawarra Flame tree and, if so, what ? o Have the other three trees caused damage or are they likely in the near future to cause damage to Mr Ruskin's property or injury to any person and, if so, what, if anything should occur in response ? o What compensation if any is appropriate ? Damage caused to Mr Ruskin's driveway and carport by the Illawarra Flame tree 16 The driveway slab in front of Mr Ruskin's carport is raised about 4 cm next to the carport pier adjacent the Illawarra Flame Tree. I observed a large root growing partly above ground from the base of the Illawarra Flame Tree extending under the first slab of Mr Ruskin's driveway in front of his carport. The root is hard against the underside of the slab, and there is a cavity between the slab and the soil under it. No other slabs of Mr Ruskin's driveway and front yard pathways appear to be lifted. There are no other trees nearby that are likely to have lifted the slab, and the parties are not aware of any removed tree that might have caused the damage. On this basis I am satisfied that the Illawarra Flame Tree has caused the lifting of the driveway slab and therefore satisfies at least the first two tests in s 10(2) (a) of the Act. 17 The edge of the lifted slab is pressing on the lower face of the bottom bricks of the carport pier. Mr Ruskin claims that a crack between the lower bricks and their mortar bed at the back of the pier is caused by the lifted slab. I accept that this crack is caused by a slight pushing back of the pier by the slab. This damage also satisfies the first two tests in s 10(2) (a) of the Act. 18 Mr Ruskin did not identify any other damage to his carport that might have been caused by the Illawarra Flame Tree. Likelihood of injury to any person by the Illawarra Flame tree or from damage to structures caused by the Illawarra Flame tree 19 The Illawarra Flame Tree appears to be healthy with a balanced crown, well attached branches and sound attachment in the ground. I do not see any reason to think that this tree is likely to directly cause injury to any person in the future if there is no interference with it. However the tree is growing above a low retaining wall on the Koopelians' property and the root growing under Mr Ruskin's driveway appears to be a major structural root supporting the tree. If that root was cut the tree is likely to be unstable, possibly falling on the Koopelians' driveway and home. 20 Mr Ruskin reports that the slab was lifted 2 cm when he first noticed it in November 2006, and I observed that it is now lifted 4 cm. Mr Ruskin states that numerous people have tripped on the slab and suffered abrasions. He also claims that further lift will make the carport structurally unsound and dangerous to people in or nearby the carport. I am not satisfied by the evidence that the carport is likely to become dangerous, but I accept that people have tripped and been injured by the lifted slab and such injuries are likely to recur. This likelihood of injury satisfies the test in s 10(2) (b) of the Act. Should anything be done with the Illawarra Flame tree ? 21 Mr Ruskin cannot repair his driveway and avoid damage to his carport without removing the root of the Illawarra Flame Tree that is growing under the driveway. I stated above that I consider the tree would be unstable if that root was removed. Both parties agree that the tree was about the same size a year ago, so logically the root would also have been of a similar size and its removal then would have made the tree unstable. On that basis it would have been inappropriate for Mr Ruskin to cut the tree root in the past, and the root should not now be cut unless the tree is removed. 22 The tree is attractive and visible from the street but makes only a small contribution to the natural landscape and local scenic values as there are many other trees nearby. The tree was not planted by either of the parties. Mr Pike an arborist employed by Gosford City Council did not think the tree was likely to be self-sown. 23 I consider that the tree root must be removed so that Mr Ruskin can repair the damage to his property, and as explained above, therefore the whole tree must be removed. 24 I note that the Koopelians were advised of the problem in March 2007. They do not require Gosford City Council consent to remove the tree because of its proximity to an approved building. I also note that they did not remove the tree in the past when they could. Therefore I propose to order that the Illawarra Flame Tree be removed by the Koopelians at their cost. They advised me at the hearing that they would be able to carry out that work by 31 August 2008. Have the other three trees caused damage or are they likely to cause damage or injury ? 25 Mr Ruskin is concerned that small roots visible on the surface near his driveway are from the Turpentine, Wattle and Paperbark trees, and that these might damage his driveway. I did not observe any damage to Mr Ruskin's driveway from these trees, and no evidence was provided that these trees are likely to cause damage in the near future to Mr Ruskin's property or injury to any person. On this basis I find that the Turpentine, Wattle and Paperbark trees do not meet the tests in s 10(2) (a) and (b) of the Act and therefore the application in relation to these trees is dismissed. 26 I note however that Mr Pike presented evidence at the hearing that the Koopelians have a valid Council consent to remove these three trees for reasons that are not part of Mr Ruskin's application. What compensation if any is appropriate ? 27 Mr Ruskin's claim for compensation is in five parts: 1. Reimbursement of filing fee $ 180 2. Removal of tree roots under driveway $ 500 3. Removal of four trees and stumps $1,400 4. Removal and replacement of concrete slab $2,970 5. Unforseen damages and other costs No amount claimed. 28 As Mr Ruskin has not been successful in all aspects of his application it is not appropriate to order compensation for the cost of filing fees. 29 I am unable to order compensation for unquantified damages. Therefore Mr Ruskin's fifth claim is dismissed. 30 I intend to order removal of the Illawarra Flame Tree at the Koopelians' cost, and as I have no jurisdiction to order removal of the other three trees it would not be appropriate to order compensation to Mr Ruskin for removal of the four trees and stumps. Therefore Mr Ruskin's third claim is dismissed. 31 At the hearing Mr Ruskin came to an agreement with the Koopelians about removal of the Turpentine, Wattle and Paperbark at their cost in exchange for him not pursuing compensation for the driveway damage. Having reached that agreement, Mr Ruskin sought to withdraw the fourth part of his application for compensation and I allowed its withdrawal. I note the agreement of the parties regarding the other three trees and compensation for the driveway damage as follows: 1. The Koopelians will remove to ground level the three trees being a Turpentine, Wattle and Paperbark in their front yard for which Council consent for removal has been granted, at their cost by 31 August 2008; 2. Removal of the three trees will be by a contractor chosen by the Koopelians and having suitable insurances; 3. Mr Ruskin will permit access to his property for the purpose of removal of the three trees, provided that access is on reasonable notice of at least one week and at reasonable times being the hours for building works having the consent of Gosford City Council in the Wyoming area; 4. Mr Ruskin will not pursue compensation for the damage caused by the Illawarra Flame Tree to his driveway adjacent the carport if the Illawarra Flame Tree and the other three trees are removed by 31 August 2008; 5. Mr Ruskin may carry out root pruning and trenching at his cost between his driveway and the common boundary to avoid damage to the driveway from tree roots, and to install drainage. 32 I understand that the quotation for removal of roots under the driveway includes roots of the Illawarra Flame Tree and the other three trees. As the other three trees do not come under the jurisdiction of the Court, I cannot order compensation in relation to them. Therefore Mr Ruskin's second claim is dismissed. Conclusion 33 I find that the application should be upheld in part and Orders made that the Illawarra Flame Tree be removed by 31 August 2008 at the Koopelians' cost. 34 The parties have reached agreement for the Koopelians to meet the proportion of the cost of the damaged driveway replacement noted above and Mr Ruskin has withdrawn that part of his application for compensation. 35 All other claims for compensation are dismissed. 36 The parties' agreement includes removal of the three other trees in the Koopelians' front yard. I am not able to make a consent order for removal of those trees as they are not within the jurisdiction of the Court for the reasons I have given, and even if they were I would not have been prepared to order their removal as the benefits they provide appear to outweigh any problems they may cause. Orders 37 The application is upheld in part and the Court shall make orders as follows: 1. The Illawarra Flame Tree shall be cut off within 200 mm of ground level, the offending root cut off at the boundary and the tree removed by 31 August 2008; 2. The tree work in (1) shall be done at the cost of Armen and Annisa Koopelian, by a contractor of their choice having suitable insurances; 3. Mr Ruskin shall permit access to his property for the purpose of removal of the tree, provided that access is on reasonable notice of at least one week and at reasonable times being the hours for building works having the consent of Gosford City Council in the Wyoming area; 4. Mr Ruskin is permitted to supervise the access of the contractors if he wishes and to require production for his inspection proof of the insurances in (2) before permitting any access. ___________________ Peter Thyer 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.