Land and Environment Court New South Wales Medium Neutral Citation: Owners Corporation Strata Plan 328 v Owners Corporation Strata Plan 4743 [2011] NSWLEC 1226 Hearing dates: 4 August 2011 Decision date: 04 August 2011 Jurisdiction: Class 2 Before: Galwey AC Decision: (1)The application is upheld in part. (2)The Respondent is to pay the Applicant $1,850 within 28 days of the date of these orders. Catchwords: TREES [NEIGHBOURS]; damage to property; compensation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Category: Principal judgment Parties: Owners Corporation Strata Plan 328 (Applicant) Owners Corporation Strata Plan 4743 (Respondent) Representation: Ms V Ridley [Secretary, Strata Plan Executive Committee] (Applicant) Mr A Thurn [solicitor] McCulloch & Buggy (Respondent) File Number(s): 20324 of 2011 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Introduction 1ACTING COMMISSIONER: The Owners Corporation of a block of units in Crows Nest Road, Waverton seeks compensation and costs arising from damage to a driveway it claims is caused by a neighbouring tree. 2The application, made pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), seeks from a neighbouring Owners Corporation compensation of $11,100 for repair works that have been carried out to the driveway. Costs of an arboricultural report and the application fee are also sought. 3As Commissioners do not have the authority to award costs, the Applicant can, if it so wishes, make a separate application to the Court to deal with those matters. Here I will only address the matter of compensation for repair of the driveway. 4To do this, it must first be established that the Court has jurisdiction to deal with the matter. Specifically, according to s 10(2)(a) of the Act, the Court must be satisfied that, in this case, the tree has caused damage to the Applicant's property. 5Secondly, if damage has occurred, in determining orders regarding compensation the Court must consider the matters listed in s 12 of the Act. This will establish what, if any, level of compensation would be appropriate, taking into account, for instance, other factors that may have contributed to damage. Site inspection, evidence, and submissions 6The hearing took place onsite. The Applicant pointed out the area of driveway that was replaced in October 2010. This section of the driveway, beginning several metres south of the tree and extending to the end of the driveway near the front of the property, was divided into two sections for the purpose of invoicing: the "yellow" section, or the northern part, which the Applicant stated was the section damaged by tree roots; and the "blue" section, the southern part, which the Applicant stated also needed repair at the same time. As a consequence, although the total repair costs were significantly greater, the claim for $11,100 is for the northern part allegedly damaged by roots. 7The section of driveway replaced in 2010 was, according to the Applicant, 30 or 40 years old. Damage was first noticed in 2006, then became more pronounced and was brought to the attention of the Respondent. The Respondent did not agree that damage was caused by roots of its tree and took no action. The Applicant considered the damage was causing a hazard, so proceeded with repair works in 2010. 8The tree, which is on the Respondent's land and is within two metres of the Applicant's driveway, is an outstanding specimen of a Podocarpus species. It is around 15 m tall with a stem diameter of approximately 80 cm. It is perhaps 80 years old and was therefore a well-established tree when the driveway was constructed 30 to 40 years ago. 9The section of driveway closer to the tree was replaced some 20 to 25 years ago. It is of reinforced concrete and shows no signs of damage despite being closer to the tree. 10The damaged section of driveway was around 75 mm thick and was not reinforced. 11The arborist engaged by the Applicant, Andrew Scales of Naturally Trees Arboricultural Consulting, used ground penetrating radar to scan the ground beneath the driveway. A section of concrete was then removed and roots were observed immediately beneath the concrete, as shown in photographs accompanying the application. Using microscopy, root samples were identified by Tree Diagnostics as Podocarpus and Pittosporum species. (Apart form the large Podocarpus there are several smaller Pittosporum trees growing along the boundary on the Respondent's property.) It was the arborist's opinion that tree roots had lifted and cracked the driveway and were therefore the primary cause of damage. 12The arborist engaged by the Respondent, Guy Paroissien of Landscape Matrix, stated that tree roots may have contributed to the damage. 13However, the report by Anthony Fowler of Acumen Consulting Group, consulting engineers engaged by the Respondent, contended that damage was due to other factors, not tree roots. He stated that the construction methods used for the driveway were inadequate, in that: it was constructed on the existing uneven ground surface rather than a prepared base; it was of an uneven thickness; it was not reinforced; and its joints were inadequate and not properly sealed. 14The engineer contended that damage was due to usage. He noted the undamaged section closer to the tree, overlooking that this section is newer and is reinforced. His methodology is not clearly described in the report so it is unclear how some of the conclusions were reached. This is not to say the conclusions are either true or untrue, but as they are not entirely backed by clearly explained findings, I cannot follow a logical progression to the conclusions and would need to take the writer at his word. 15The contents of expert reports are prescribed by cl 31.27 of the Uniform Civil Procedure Rules 2005. Specifically, the report must include the facts, and assumptions of fact, on which the opinions in the report are based; and, any examinations, tests or other investigations on which the expert has relied. 16It helps the Court if expert witness reports contain a section titled "Methodology" or similar that clearly explains what was done, how it was done, and what was not done. For the reasons above I have not given the report itself much weight, although I have fully considered the matters that it raises. 17Mr Thurn, for the Respondent, pointed out the aged, rusted, non-operational drainage pipes on the topmost (third floor) balcony immediately above the area of the most severe damage to the driveway. He contended that water falling from the balcony during rain periods fell onto the concrete and seeped through the joints, affecting soil moisture below the concrete. Jurisdiction 18The photographs submitted by the Applicant clearly show large roots immediately below the cracked driveway. Based on these photos, the size of the roots, the root identification and the absence of other trees in the vicinity, I am satisfied that the larger roots, those most likely to contribute to damage, were from the Podocarpus, and that all the roots found beneath the driveway were from trees on the Respondent's property. 19I am also satisfied that there is sufficient evidence showing that, while they may not be the only cause of damage, they had contributed to damage of the driveway. Therefore, the tree has caused damage to the Applicant's property and, according to s 10(2) of the Act, the Court can proceed to make orders. Section 9 of the Act enables the Court to make any orders it thinks fit to remedy restrain or prevent damage to property including requiring of payment of compensation. Discretionary matters 20Of the matters to be considered under s 12 of the Act, those regarding the tree's significance and contribution are largely irrelevant as no orders are sought for any interference with it. 21Most relevant here is: s 12(h)(i) anything, other than the tree, that has contributed, or is contributing, to any such damage or likelihood of damage, including any act or omission by the applicant and the impact of any trees owned by the applicant. I consider the following matters to be important. 22Prior to its recent repair, the driveway was 30 to 40 years old and was cracked (albeit it to a lesser extent) in other areas that are not part of this claim. 23The driveway was not reinforced. 24The tree was well established when the driveway was constructed. It would be reasonable to expect that its presence should have been considered when assessing site conditions to determine appropriate construction specifications. 25Water falling from the top floor balcony, where a drainage pipe has been corroded and out of order for some time, would have seeped through joints into the soil below the concrete with two likely effects: increased soil moisture and soil movement; and promotion of root growth in that area. It is probable that the lack of maintenance of this part of the Applicant's property has encouraged root growth, thereby contributing to the damage. Conclusions 26Based on the description of the remainder of the driveway prior to repair, the driveway had a limited life of perhaps a further 20 years, regardless of the tree. So if the tree had been the only cause of damage, it would have shortened the lifespan of the damaged section of the driveway by around one third. 27However, as the tree was present at the time of driveway construction, it can be concluded that the construction methods used were inadequate for the site conditions at the time and for conditions likely over its lifespan. 28Furthermore, water falling from the balcony appears to have encouraged root growth in the area of the most severe damage. 29It would seem reasonable to regard these factors as contributing at least equally to the conditions that led to damage. That is, no more than half of the damage can be attributed to the tree - damage that has shortened a section of the driveway's lifespan by perhaps a third. 30As a result, the highest contribution that I can reasonably apportion to the tree is approximately one half of one third of the repair costs, or $1,850. Orders 31Consequently, the orders of the Court are: (1)The application is upheld in part. (2)The Respondent is to pay the Applicant $1,850 within 28 days of the date of these orders. D Galwey 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. Decision last updated: 08 August 2011