Land and Environment Court New South Wales Medium Neutral Citation: McVicker v Finlay & anor [2016] NSWLEC 1019 Hearing dates: 21 January 2016 Date of orders: 21 January 2016 Decision date: 21 January 2016 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS] Damage to property; compensation/ rectification; discretionary matters; sufficiency of evidence Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Barker v Kryiakides [2007] NSWLEC 292 Osborne v Hook [2008] NSWLEC 1231 Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Mr M McVicker (Applicant) Mr P & Ms R Finlay (Respondents) Representation: Applicant: Mr M McVicker (Litigant in person) Respondent: Mr K Finlay (Agent) File Number(s): 20972 of 2015 Judgment 1. COMMISSIONER: The applicant owns a property in Berkeley Vale. He has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the repair of structural damage to his dwelling, the replacement of the concrete driveway and the reconstruction and realignment of his carport including the replacement of guttering; all at the respondents' expense. 2. The applicant contends that the respondents' tree caused the damage; hence the orders sought. 3. The tree the subject of the application was removed by the respondents in December 2015. The species is unknown however from the photograph in the application claim form it may have been a Harpephyllum caffrum (Kaffir Plum). The photograph indicates that it was a reasonably mature specimen growing on the respondents' property within 1m of the dividing fence between the parties' properties and which partly overhung the applicant's carport. 4. Although the tree has been removed, it is still a tree to which the Part 2 applies – section 4(4) of the Act. 5. The applicant has obtained an estimate of $10,000 for the replacement of the driveway and a quote of $2,250 for the repair of the carport. 6. 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. 1. The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act…". 2. The application claim form only deals with the alleged damage however, during the hearing the applicant mentioned his concerns about the safety of members of his family, presumably the risk of tripping on sections of displaced driveway. 3. As the tree has been removed there is no risk of future damage. If either of the other relevant tests is met the Court's jurisdiction to make orders under s 9 is engaged. 4. In large part, the applicant relies on the advice of Mr G Johnson from a firm specialising in underpinning and sub-floor areas. In his letter dated 1 September 2015 he states [capitalization, greetings and sign off omitted]: I inspected damage to the driveway at no. '97' and also to the front south-west corner of your home where some cracking has occurred due to tree root invasion. The driveway has 'drastically' lifted and cracked due to the tree roots from the Tree on your neighbour's property, number 99 …. This Damage is a direct consequence of the 'tree at number 99'. ● Rectification will cost up to $10,000.00 to complete and restore driveway & home to its original position prior to the invasion of tree roots. ● Also, the offending tree will need to be 'removed' or an 'extensive' root barrier needs to be installed along this area to stop the tree sending out more roots towards your home and causing further damage. ● Removal and replacement of the damaged driveway caused by the tree. ● Compensation for the works should be sort after from the owner of the offending tree on the neighbouring property. 1. There are three elements of alleged damage. The house 1. Mr Johnson's letter implies that the roots of the respondents' tree have damaged the house necessitating its rectification. The damage is not specified, nor has Mr Johnston explained how he came to his opinion. 2. The damage to the house, allegedly caused by tree roots, is shown in a photograph included in the application claim form. It is an area of separation along the edge of the stencilled concrete driveway and the western edge (parallel to the common boundary) of the concrete front steps which lead up to the applicant's front verandah. 3. Each of these elements – the driveway, front steps, and verandah appear to be separate entities. The driveway is located between the common boundary and the applicant's dwelling. 4. The applicant was unable to provide any actual evidence of the damage being caused by roots of the respondents' tree. Mr K Finlay, the respondents' agent drew my attention to the fact that two large Swamp Mahogany trees had been removed from the applicant's front yard and that the disintegration of roots over time may have contributed to the alleged damage of the driveway and the step. The applicant stated that these trees were removed in about 2006. 5. As there is no evidence of a nexus between the respondents' tree and the damage to the applicant's dwelling, s 10(2) is not met and no orders can be made for any rectification of it at the respondents' expense. In any event, the 'damage' appears cosmetic and not structural and would not otherwise warrant an order of the Court. As the tree has been removed, no further damage could be caused by it. The carport 1. The carport was constructed in about 2006 after the resurfacing and extension of the driveway. It is a light metal structure supported by posts which are presumably set into concrete footings. It is constructed very close to the common boundary; within about 200mm or so. 2. The damage allegedly caused by the tree is the lifting of the supporting post on the south-western corner of the carport, the post closest to the tree. The lifting of the post and subsequent tilting of the structure has resulted in water not flowing along the guttering and down the downpipe attached to that post. The northern part of the carport guttering close to the common boundary has virtually disintegrated. 3. The applicant's son, Mr Preston, gave oral evidence. He stated that about five or so years ago he excavated near the post to expose and cut roots growing near the edge of the driveway. He did not see the nature or extent of the footing. He cut the roots and backfilled the hole with gravel. Mr Preston stated that the exposed roots would have been clearly visible to the respondent had he looked. 4. The first respondent stated that the roots were not drawn to his attention. 5. At around that time, the applicant disconnected the downpipe from the stormwater system. Since then water had discharged from the downpipe directly onto the soil at the base of the post. 6. The applicant contends that the damage to the guttering was caused by build-up of leaves and despite regular cleaning, the lack of drainage resulted in corrosion. 7. In Robson v Leischke [2008] NSWLEC 152 at [179] Preston CJ notes that a tree need only be a cause of damage in order to satisfy s 10(2) and thus engage the Court's jurisdiction. 8. The only evidence of possible causation is a section of a large woody root which protrudes above the surface approximately 300 mm or so from the post. This root has been cut some time ago. However, whether this root has caused any displacement of the post is unknown as there has been no recent excavation around the post. 9. In giving the applicant the benefit of the doubt I am satisfied that the root is a possible cause and therefore the Court's jurisdiction to consider what, if any orders should be made, is engaged. This requires consideration of any relevant matters under s 12 of the Act. 10. Most relevant is s 12(h) – actions of the parties and any other possible causes. 11. Although the applicant first became aware of the problem with the carport about five years ago, he did not bring this to the respondents' attention until very recently. When the respondents became aware of the problem they immediately took action to have the tree removed. As discussed in Osborne v Hook [2008] NSWLEC 1231, by waiting so long before the respondents were informed, they were denied the opportunity to take earlier action. It would seem that the most appropriate time would have been when Mr Preston exposed and cut the roots. 12. The underlying soils were discussed during the hearing. It appears that the sandy topsoil overlays a clay subsoil. While the reactivity of the clay subsoil is unknown, the applicant stated that he has observed the level of displacement of the driveway varies depending on whether conditions are wet or dry. With the expertise I bring to the Court, this is consistent with a degree of reactivity in the soil; that is, some clays expand when wet and shrink when dry. 13. The disconnection of the stormwater will have directed water onto the soil around the post; this may have created a localised area of swelling. It may also have provided a source of water for the tree. 14. While the leaf litter and water may have accumulated as a consequence of the alleged lifting of the post - resulting in corrosion, the delay in dealing with the problem is relevant. Apart from that, the Court has published a Tree Dispute Principle in Barker v Kryiakides [2007] NSWLEC 292 which states that: For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis. The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree. 1. There are many examples of the application of this Principle. To date it has been adopted consistently. While damage is visible, as a matter of discretion I am not minded to make any orders for any rectification of the guttering at the respondents' expense. 2. Overall, given the lack of notice given to the respondents, the absence of any actual evidence to confirm displacement by the root, and the other possible contributing factors, no orders will be made for any rectification of the carport at the respondents' expense. The Driveway 1. The original driveway from the street to the house was present when the applicant purchased his property in 1989. At that time, the driveway had a pebblecrete coping. 2. In 2006 the applicant extended the driveway to the east, and the new and existing driveway sections were topped and stencilled. 3. Over the past five years the applicant has observed the displacement of the closest slab to the tree. Photographs of the displaced section are included in the application claim form. 4. There is an expansion joint close to the exposed woody root. The mastic in the joint is cracked and slightly lifted. Where the old slab abuts the new section of driveway, on either side of the expansion joint, there is a difference in levels of approximately 15mm at its highest point. However, some metres away and closer to the street, another part of the joint between the old and new section is displaced with the newer section being higher than the older section. Along the majority of the join between old and new the levels are virtually the same. 5. The applicant contends that the displacement near the expansion joint has been caused by the roots of the respondents' tree. He is seeking the replacement of the driveway at the respondents' expense. 6. As previously stated, the only evidence of any potential causation is the exposed section of woody root that was cut some years ago. The applicant stated that apart from cutting the root he also drilled and poisoned it. 7. I am satisfied that the root is a probable cause of the displacement. As discussed in the context of the carport, the applicant knew about the problem for some time before bringing it to the respondents' attention. Apart from the underlying soils, there are other possible contributing factors including the age and unknown condition and construction of the original driveway and what preparation was undertaken when the driveway was extended. 8. Overall the slab is displaced over a relatively small section and there does not appear to be any structural damage or significant cracking. This observation is contrary to Mr Johnson's statement that the displacement is 'drastic'. The appearance of the stencilled concrete is not affected and the driveway is functional. 9. Therefore as matter of discretion, no orders will be made for the rectification of the driveway at the respondents' expense. 10. As a consequence, the Orders of the Court are: 1. The application is dismissed. __________________________ Judy Fakes 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: 28 January 2016