Karaboulis and anor v Berbeniuk [2010] NSWLEC 1191

Land and Environment Court of New South Wales

CITATION : Karaboulis and anor v Berbeniuk [2010] NSWLEC 1191

APPLICANTS C & G Karaboulis PARTIES : RESPONDENT J Berbenuik

FILE NUMBER(S) : 20046 of 2010

CORAM: Moore SC - Galwey AC

KEY ISSUES: TREES (NEIGHBOURS) :- adjustment of contribution to replacement of damaged structure to reflect otherwise reasonable future life of structure if undanmaged by the tree

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

DATES OF HEARING: 24 May 2010

EX TEMPORE JUDGMENT DATE : 24 May 2010

APPLICANT Mr M Slattery, solicitor Carroll & O'Dea LEGAL REPRESENTATIVES: RESPONDENT Mr T Barber, solicitor Barber Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC GALWEY AC

24 May 2010

10/20046 Karaboulis v Berbeniuk

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 SENIOR COMMISSIONER: This is an application pursuant to the Trees (Disputes between Neighbours) Act 2006 (the Act) concerning a fibro garage erected on 17 Handley Avenue, Bexley North. 2 At the commencement of the formal proceedings in court, an application was granted, without objection, to amend the application so that the application is now made in the name of both of the owners of 17 Handley Avenue, that being Mr and Ms Karaboulis. 3 The application concerns damage to the garage caused by a eucalypt located on the adjacent property at 15 Handley Avenue, owned by Mr and Mrs Berbeniuk. The application has been served on Mr Berbeniuk only and no application is pressed to join his wife as a respondent in these proceedings. As a consequence, the orders that we propose to make are orders that are made against Mr Berbeniuk only rather than against him and his wife. 4 We inspected the garage and the remainder of the tree this morning. From the site inspection, there is a stump of the eucalypt remaining that is in place where the tree grew and it is clear that there is sufficient of the stump remaining present to satisfy the test required by the Act that there is a tree capable of being the subject of this litigation, that being consistent with the discussion by the Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) 72 NSWLR 98; (2008) 159 LGERA 280 (at paras 142 to 145) as to what is a sufficient residuum of a tree for the jurisdiction of the Court to be enlivened. There is no dispute that the tree is located on Mr and Mrs Berbeniuk's property, the locational test is also satisfied. 5 The tests that are then set as jurisdictional pre-requisites, in s 10(2) of the Act, require us to be satisfied, relevantly in this case, that the tree has caused damage to the property of the applicants. There is no contest concerning that in these proceedings, but we observe, from our inspection of the site this morning, that we are independently satisfied that damage has been caused to the applicants' property by the roots of the tree on the adjoining property. 6 It is necessary for us then to continue to consider a number of timing matters about who knew about what and when. The first position is that we have the uncontested evidence of Mr Karaboulis, supported by a letter from the builder who undertook his pre-purchase inspection in 2002. At the time of purchase of the property, there was a minor degree of cracking in the concrete slab of the garage. We will return to describe the nature of the structure and the present damage in more detail later. 7 Mr and Ms Karaboulis moved to New York in 2004, returning to Australia to take up residence in the house that they owned in the first half of 2008. It is the uncontradicted evidence of Mr Karaboulis that he and his wife had received no adverse reports concerning the state of the garage during the period that they were overseas. We do not accept Mr Barber's suggestion that he should have undertaken inspections of his property during that time, as to do so from New York would have been to have behaved in an irrational fashion in our view. 8 Mr Karaboulis has, in his affidavit, said that, in June of 2008, he became aware of damage to the floor of his garage and the significant lifting of the slab in the garage at a point about three-quarters of the way towards the rear of the garage. He immediately drew that to the attention of Mr Berbeniuk who was the owner of the tree whose roots he considered were the cause of that problem. The letter from the builder who undertook the inspection in 2002 and who was invited to provide both further advice and undertake a further inspection also corroborates that. We are satisfied therefore, on the basis of that chronology, that Mr Karaboulis acted reasonably in drawing to Mr Berbeniuk's attention the nature of the damage as soon as it was reasonably drawn to his attention. 9 In this regard, we also note that there was a tree preservation order permit granted by the local council. Whether it was applied for directly by Mr Berbeniuk or was applied for on his behalf is, in our view, irrelevant, given that, on his own evidence today, he was aware of it having been granted at the time – being granted a permit for removal of the tree dated 23 June 2008. We are satisfied, as a consequence of that, that it is reasonable to assume not only that Mr Berbeniuk had actual knowledge of the damage, but also considered that there was a need to remove the tree in order to respond to that damage. He did not do so and his evidence today is that he did not do so because of the expected cost of doing so. 10 There is, then, uncontradicted evidence from Mr Karaboulis that, during the intervening period after mid-2008, there was ongoing discussions between the parties as to what should be done about the damage and, particularly, continued attempts by Mr Karaboulis to stimulate removal of the tree. 11 In February 2009, some eight months or so after Mr Berbeniuk was put on notice, Mr Karaboulis gives (again uncontradicted) evidence of hearing a noise in the garage and inspecting it and discovering that, in effect, the ridge beam had broken and the spine of the garage was severely damaged, causing sagging in the roof. That is a separate act of damage to the structure that occurred after Mr Berbeniuk was put on notice of the damage and the need to address it. 12 In February 2009, Mr Karaboulis obtained a permit pursuant to the tree preservation order that would permit Mr Berbeniuk to remove the tree. In April 2009, he served a letter of notice on Mr Berbeniuk and in June 2009 the tree was removed by Mr Berbeniuk at his cost. The root was not removed and there has been no rectification action with respect to Mr and Mrs Karaboulis's structure. 13 In February 2010, rain entering the structure caused further damage to it, rendering it even more necessary that the structure be removed. We do not consider that the February 2010 damage does anything other than confirm the nature and consequences of the February 2009 damage. 14 Those are the steps that we consider are relevant to discuss with respect to the matters that are set out in s 12(h)(ii) of the Act, namely any steps taken by the applicant or the owner of the land on which the tree is situated to prevent or rectify any such damage. 15 We note, relevant to that, that we were given on site this morning the uncontradicted evidence of Mr Allen, the tree manager of the local council, that any tree preservation order permit that might be granted to Mr Karaboulis did not permit his intervention with the roots of the tree, so it was not open to Mr or Ms Karaboulis to interfere with the tree and take action with respect to the root that might have prevented the tipping point, as we would describe it, of the events in February 2009 to occur. 16 Having reached that conclusion, it is also necessary for us to consider the nature of the structure, including its age. The structure is a single vehicle, fibro garage. The house that is occupied by Mr Berbeniuk was constructed, on his evidence, in about 1936. We consider that, from the generally contemporaneous architectural styles of Mr and Mrs Karaboulis's house, that it is likely to be generally contemporaneous with Mr Berbeniuk's house and it is therefore reasonable to assume that the house at 17 Handley Avenue is, in general terms, without needing to be specific, pre-second World War. 17 The house was constructed with a drive along the side. It is reasonable, in our view, to assume that the construction of the house with the drive along the side was to permit vehicle access to some form of garaging structure at the rear. 18 We have considered what we observed this morning of the nature of the structure. There was no reinforcing in the slab. There were no expansion joints in the slab, other than a minor cut mark or insertion mark made by a form-worker's trowel. The nature of the roof form, the nature of the roofing materials (appearing to be cement or asbestos cement tiles) and the nature of the cladding (being asbestos sheeting) means that we are satisfied to the degree of comfortable satisfaction necessary (as discussed by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) that the garage is likely to be generally contemporaneous with its house. 19 Mr and Mrs Karaboulis commissioned an expert report in 2009 and a subsequent expert report in 2010 from Mr Steven Hamilton, a director of RHM Consulting Engineers. The further report was commissioned in March 2010 and it is to the latter document that we turn our attention. There are a number of matters that are contained in the report that are critical to our consideration. The first is at para 4.1(a). Mr Hamilton sets out what he expects to be the normal life expectancy of the components that make up the garage. He describes them as follows; o A tiled roof - 50 years. o Hardwood timber framing - 60 years. o Concrete slab - 50 years. 20 He then goes on to make the only comment that he makes concerning the age of the structure. It is couched in contingent terms and deals with his expectation of its future useful life and it is in the following terms: "If the age of the shed is between 25 to 30 years, then it is my opinion that the shed would remain standing for at least another 20 years on the assumption that it is well-maintained and not subjected to any external forces such as a tree root."

21 The opinion that we have formed as to the age of the shed is not consistent with the assumption that Mr Hamilton made, he having only defined earlier in that section of his report that it must be at least 25 years old, given the prohibition on the use of asbestos fibro sheeting in the mid-1980s. 22 We have turned then to consider, a matter to which we will return, what, in our view, might have been the future use or life of the shed. Mr Hamilton also expresses the opinion, at 5.0 of his report, that 100% of the structural damage to the shed was occasioned by the tree root. Mr Berbeniuk on the other hand has commissioned an expert report dated March 2010, from Dr Hasham (of Australian Consulting Engineers) who expresses the opinion, on p 3 that, in part, damage arose from the nature of the design of the shed and its construction, but also that the pressure of roots had only caused 60% to 70% of the damage. The rest of the damage, he said, could be related to the age of the structure and its construction. 23 In addition to the elements that we have evidence upon which we have drawn to estimate the age of the structure, we would also indicate that we consider that the nature of the construction appears to be consistent with what might have been the construction standards applicable at the time prior to the second World War. We do not consider that there should be any adverse finding against Mr and Mrs Karaboulis as a consequence of the nature of the structure. 24 We have been asked to make an order for costs of rectification. We are not asked to make any order about the removal of the tree roots under the shed or the costs thereof. It is Mr Berbeniuk's evidence that he has severed the roots on his side of the fence and poisoned them. The consequence of that is that there is unlikely to be any residual growth occurring of that nature and there is it would appear, from at least some of the quotations to which we propose to refer, an allowance made for the removal of tree roots. In any event, we do not propose to go beyond the nature of the quotations for construction of a replacement garage to which we now turn. 25 There are four quotations in evidence before us. The first (and lowest) is provided by Mr Berbeniuk and is dated April 2010. This quotation is for the sum of approximately $20,500. Mr Barber, Mr Berbeniuk's solicitor, presses us to adopt that as a basis for our consideration of what quantum should be awarded. Mr Slattery, solicitor for Mr and Mrs Karaboulis, has put in evidence three quotations of $21,300.50 of March 2009, $22,000 of February 2009 and $24,700 (approximately) of March 2009. 26 Mr and Mrs Karaboulis wish to adopt the most expensive of the three quotations they have provided and thus the most expensive of the four. They propose that there should be a sum of $3000 as contingencies and as an adjustment for time since the quotation was obtained and other costs. We consider it would be generally appropriate to allow a contingency sum and allowances for council fees and the like. However, if we were to do so, that should be applied to the lowest quotation. 27 What we propose to do is to permit Mr and Mrs Karaboulis to utilise the builder of their choice, if they wish to do so, but not to permit any adjustment by way of contingency, time or otherwise, to the March 2009 quotation thus, in our view, generally making it comparable on a time adjusted and other bases with the quotation matters provided on behalf of Mr Berbeniuk. We therefore propose to operate, as a commencing calculation point, on the sum of $24,700. We note that that excludes two optional items that are proposed in that quotation. 28 The proportion that we consider should be applied should be based on the proposition that Mr and Mrs Karaboulis should be put back in the same position that they were in if the tree had not intervened and if Mr Berbeniuk had responded promptly, upon being put on notice of the damage that was being occasioned to Mr and Mrs Karaboulis's property, particularly the fact that Mr Berbeniuk did not take action during the period when it would arguably and, in our view, reasonably be found to prevent the tipping point that occurred in February 2009. 29 Mr Hamilton's evidence, which is not counter-parted by any comparable commentary by Dr Hasham concerning the future life likely for the garage, is expressed contingently based on what he had assumed might be the age of the garage. The garage, on one consideration of his evidence, would have already passed its useful life expectancy. On the other hand, we have Mr Karaboulis's evidence that, at the time of his purchase of the property, (borne out also by the report of his builder at a time which would also have been past the life expectancy of the garage), that it was still a useable structure. However, we are not prepared to conclude that the 25 to 30 year likely range of future use is acceptable as we think, on a proper assessment, given what we have concluded is the actual age of the structure, that Mr Hamilton may have and should be regarded as having over-estimated the likely remaining life of the structure. 30 We think, under all of the circumstances, that 20 years would be a better reliable estimate of the likely future useful period for the garage. 31 As a consequence, we are left with the proposition where we have a garage that is approximately 70 years old with a useful life of approximately 20 years into the future without the intervention of the tree root – giving a total life span for the garage of 90 years. We consider, with respect to the question of the demolition of the garage and the removal of the asbestos, that Mr and Mrs Karaboulis would not have been faced with that cost had they remained in continuous ownership of the property for 20 years, so we should permit that to be an element of the cost of putting them back in the position that they would have been in had there not been the intervention of Mr Berbeniuk's tree root. 32 As a consequence, we consider that the appropriate ratio that we should be considering is a contribution by Mr Berbenuik of two ninths, which, on a rounded-up basis of the amount sought of $24,700, is $5500. Before we finalise the orders that we made in these proceedings, we note that, in response to a question from us, Mr Slattery advised us that he considered it was appropriate to allow a six-month period within which the replacement structure might be erected. We confess that we find that an optimistic expectation as to what might be local council approval procedures and consider it appropriate to allow a nine-month period for the construction of a replacement structure. 33 We also accept the proposition put by Mr Barber, on behalf of Mr Berbeniuk, that it would be reasonable to allow Mr Berbeniuk 90 days to make a payment after the date upon which he would become liable to make such a payment. 34 As a consequence of all the foregoing, the orders of the Court are as follows: 1. If the applicants have demolished the existing garage and erected a replacement structure within nine months of today's date, the applicants are to serve the respondent with a receipted account for this work within 28 days of receipt of such account but no later than ten months from today's date. 2. If order (1) is complied with, the respondent is to pay the applicants $5500 within 90 days of service of the receipted account in order (1). 3. If order (1) is not complied with, order (2) lapses at the expiry of ten months from today's date.

Tim Moore David Galwey Senior Commissioner 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.