Land and Environment Court New South Wales Medium Neutral Citation: Mercieca v Swenson & anor [2017] NSWLEC 1578 Hearing dates: 12 October 2017 Date of orders: 12 October 2017 Decision date: 12 October 2017 Jurisdiction: Class 2 Before: Fakes AC Decision: Application dismissed Catchwords: TREES [NEIGHBOURS]: Damage to property; rectification; sufficiency of evidence of nexus between tree and damage Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Robson v Leischke [2008] NSWLEC 152 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Texts Cited: Nil Category: Principal judgment Parties: David Mercieca (Applicant) Peter and Anne Swenson (Respondents) Representation: Applicant: D Mercieca (Litigant in person) Respondents: P Swenson (Litigant in person) File Number(s): 2017/227261 Publication restriction: No JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1. COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for the following orders to be made at the respondents' expense. * Removal of a tree growing near the boundary; * Removal and replacement of a 4m x 3m section of concrete pathway; and * Replacement of a window frame. 1. The orders are sought on the basis of the applicant's contention that the tree has lifted the concrete slab which has led to the creation of a gap between that slab and the one downslope and through which water can penetrate. The applicant is concerned that the water may cause undermining of a relatively recently constructed extension to his dwelling. 2. The applicant alleges that the respondent damaged the window frame when he was removing the tree. 3. While the 'box' for injury to persons in the application claim form is not ticked, the applicant is concerned that the lifted sections of the slab are a slipping hazard, as are leaves that fall from the tree. 4. The respondent contends that the section of slab is level and there is no evidence of uplift caused by roots. Further, he submits that there are similar gaps elsewhere in other sections of the concrete path which was once a driveway. The respondent maintains that the alleged water problems are largely of the applicant's making due to a downpipe on the applicant's garage that discharges directly onto the slab and also causes runoff onto the respondents' property. 5. The respondent denies damaging the window frame. 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…". In Robson v Leischke [2008] NSWLEC 152 at paragraphs [176] to [189] Preston CJ discusses the requirement for a clear nexus between the tree, the subject of the application, and the damage to property. At [179] in Robson, His Honour notes that a tree that is the subject of the application does not need to be the sole cause of the damage in order to engage the court's jurisdiction. 2. The respondent removed the unidentified tree and ground its stump. Photographs in Exhibit 1 show the tree during the removal process. Section (4)(4) of the Trees Act enables the Act to apply to trees that have been removed as long as there is evidence that the tree was growing on a respondent's adjoining land prior to when the damage allegedly occurred. 3. From remaining leaves on the ground, it is possible that the tree was a self-sown Celtis sp. 4. During the on-site hearing it was clear that nothing of any substance remains of the tree. Close to the location of the tree that has been removed, the respondent uncovered a very old, long dead stump of a tree which had been removed prior to his purchase of his property some 18 years ago. This stump is also close to the section of concrete slab in contention. 5. As the tree has been removed, and there is no possibility of further root growth, an order for removal is unnecessary. 6. The part of the slab in contention adjoins the site of the Celtis. There is a void beneath the slab and the soil below which is only visible from the respondents' property. The respondents' property is slightly downslope of the applicant's land. 7. From the applicant's property, the slab is slightly elevated at each end along each edge. The applicant indicated a gap that I estimate to be about 20mm wide between the slab in question and the adjoining section below. He is concerned that water is flowing into this gap and potentially undermining the slab and the dwelling. 8. The applicant stated that he sought advice and quotes from concreting contractors and that he was advised that the whole section should be replaced, rather than replacing part of it, or as was suggested during the hearing, filling the gap with flexible filler. The quote in Exhibit B is a conventional quote which includes a scope of works and a price but no comment as to causation. [There is a quote for tree removal from an arborist which mentions removal of tree lifting slab but there is no report or any other material to substantiate that opinion.] 9. Where claims are made about damage to paths, driveways and other structures, the Court has regard to the condition of the whole of the path or structure. 10. The parties agree that the path was once a driveway and is thought to date from the 1960s making the slab at least 50 years old. There are some cracks in the section in contention as well as in other sections; the slab at the top of the path close to the garage has many cracks. There is also minor lifting along other joints of other slabs and gaps of equivalent width between the side of some slabs and the dwelling. 11. I observed the downpipe indicated by the respondent; it empties close to the edge of the slab near the dwelling and would discharge water from the roof of the applicant's double garage down the concrete path which slopes moderately steeply downhill. 12. Absent a spirit level to prove the point, the slab in question appeared horizontal. When asked, the applicant stated that he purchased the property in late 2012 and the extensions were completed in 2013. He became aware of the gap between the slabs when he was cleaning up leaves after heavy rainfall last year (2016). He has no evidence of the condition of the slab when he purchased his property however he maintains his position that the roots from the tree that grew on the respondents' property lifted the slab and created the gap. 13. On the evidence before me I cannot be satisfied to the extent required by s 10(2) that the relatively minor displacement of the slab and the gap between it and the adjoining slab has been caused by the tree the subject of the application. 14. However, if I am wrong in this I note the following: while the tree may have been a cause, there is no probative evidence of this; the problems with water entering the gap would be due in large part to the applicant's unconnected downpipe; there is no evidence of whether the gap existed prior to the applicant's purchase or has worsened in that time; given the age of the concrete and its former use, normal wear and tear would be expected; the fact that the applicant's dwelling underwent a substantial extension which presumably involved the use of the adjoining concrete, construction activities may also have caused some damage to the slab; the respondents' land is slightly lower than the applicant's land and given the discharge of water from upslope and the other gaps elsewhere, it is possible that over the years, soil may have been washed from under the slab. Considering all these possibilities, the slab is generally in relatively good condition. 15. Given these unknowns, there is insufficient evidence to consider making any order for rectification of the slab at the respondents' expense. 16. In regards to the window frame, the Trees Act requires there to be a nexus between the tree and the damage; that is the tree itself must at least be a cause of the damage. If the damage occurs through the actions of a person which is incidental to the tree, even if that person is removing the tree, then the damage has not been caused by the tree and the Court has no jurisdiction under the Trees Act to make any order for any rectification of that damaged property. As stated above, the first respondents' evidence is that they caused no damage to the window. 17. Therefore, on the evidence before me and with the benefit of the site inspection, the Orders of the Court are: 1. The application is dismissed. ______________________ Judy 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. Decision last updated: 12 October 2017