Clavijo v Turnbull & anor [2011] NSWLEC 1128

Land and Environment Court New South Wales

Medium Neutral Citation: Clavijo v Turnbull & anor [2011] NSWLEC 1128 Hearing dates: 23 May 2011 Decision date: 23 May 2011 Jurisdiction: Class 2 Before: Fakes C Decision: Application dismissed Catchwords: TREES [NEIGHBOURS]; damage to property; unsatisfactory report by an expert Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Hinde v Anderson & anor [2009] NSWLEC 1148 Zangari v Miller (No 2) [2010] NSWLEC 1093 Category: Principal judgment Parties: Mr O Clavijo (Applicant)

Mr J Turnbull (Respondent) Ms T Chesworth (Respondent) Representation: Mr O Clavijo (Applicant in person)

Mr J Turnbull (Respondent in person) Ms T Chesworth (Respondent in person) File Number(s): 20074 of 2011

Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Carlingford against the owners of trees growing on an adjoining property. The application originally included a claim against another tree pursuant to s 14B of Part 2A of the Act. Leave was granted at the hearing to amend the application to delete that part of the application. 2The applicant is seeking orders for the removal of two trees as he contends that they have caused damage to paving and to the brick wall of his house. He is also seeking the making good of the damage at the respondents' expense. 3The hearing commenced on site with an inspection of the trees on the respondents' property. They are two early mature gums; tree 1 is probably a Eucalyptus saligna (Sydney Blue Gum) and tree 2 is a Corymbia maculata (Spotted Gum). Both are healthy with no obvious structural defects although one of the branches of the Spotted Gum that overhangs the applicant's property has been lopped. 4The trees are planted in a raised garden bed at the rear of the respondents' property between an in-ground pool and the dividing fence between the parties' properties. They are approximately 1 - 1.5 m from the fence. The low log retaining wall that supports the soil in the raised garden bed shows no signs of displacement. There is very minor lifting of some pavers in the vicinity of tree 2. 5The trees and the pool were present when the respondents purchased their property some 13-14 years ago. They said the trees were mature at that time. 6On the applicant's property I was shown two cracks in part of the brick wall of the house in the vicinity of the trees as well as mounding of a paved area between the trees and the applicant's dwelling. The trees are some 2.5 - 3 m from the wall. One crack extends diagonally between the bricks from a windowsill and the other is a vertical crack of about 1m from ground level; this is below and to the right of the other crack. 7The applicant has lived on his property for some 30 years and estimates the trees to be 15 - 20 years old, which differs somewhat from the recollections of the respondents. The applicant said that he first noticed some mounding of the paving in 2008 and that he wrote to Baulkham Hills Council with an enquiry as to what to do about the trees. The letter to the council is not in evidence, however the letter from the council directs the applicant to the Land & Environment Court. 8The applicant was away for about 12 months and again in 2010 wrote to the council about the trees and received the same response. He says he also approached the respondents. 9The applicant engaged Kneebone & Beretta Consulting Pty Ltd, Consulting Structural & Civil Engineers to prepare a report. Mr Angelo Vardouniotis, a structural engineer, carried out the visual inspection and reporting. 10Mr Vardouniotis' report states that the applicant's dwelling is a single storey brick veneer construction. He states he has no information about any structural details of the house or of the soil bearing under the footings. He notes two cracks, one beneath a brick windowsill and another to the right of the window. He notes " two very large gum trees located in the neighbouring property...which are in close proximity to the ...damage wall". He further notes: " The external brick paved surface at the base of the damaged wall exhibits two distinct upward "bulges" in line with each of the two trees. The crack pattern underneath the bedroom window is also consistent with an upward movement of the foundation under. Perusal of brickwork around the remainder of the house did not disclose any other obvious movement or damage." 11These observations are in contrast to the observations made at the hearing. Apart from the undulations in the pavement near the trees there are undulations elsewhere and some distance from the trees. There was also a long vertical crack in the brickwork on a corner of the house near the rear entry, again some distance from the trees. I note that the engineer failed to notice that the metal dividing fence between the trees and the mounded pavement showed no obvious signs of displacement that would be consistent with uplift by roots. 12The first respondent stated that the soils in the area are reactive clays. He also observed that the slope of the paving directs water to the area near the crack. The applicant's storm water pipe runs at the base of the wall and past the crack. The applicant stated he had not had any problems with the storm water. These are all observations or matters that should have been made or investigated by the engineer and were not. 13Overall Mr Vardouniotis' report is of no assistance to the Court or to his client who relied upon it. 14Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 15In this matter, whilst the circumstantial evidence of the degree of displacement of the paving and of one of the cracks proximate to the trees indicates there may be some involvement of one or both of the trees, there has been no lifting of pavers or excavation carried out to prove the nexus between the trees and the damage. 16It is not good enough for an 'expert' to simply assume that the trees have caused the damage based solely on proximity. As discussed by Craig J in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 satisfaction of s 10(2) requires a... "preponderance of probability" that the causal nexus exists. Anything less would not be tantamount to the satisfaction required by the section..." [38]. At [62] '"...something more than a theoretical possibility is required in order to engage the power under the 'Act' to make an order to remedy, restrain or prevent damage as a consequence of a tree..". The matter in Smith also involved an assumption that roots from a tree had caused damage to a dwelling. 17Similarly, the absence of any excavation to reveal what may or may not be the cause of the damage compromises the Court's ability to make appropriate orders; the making of which is a serious matter. Section 9 of the Act provides the Court with a degree of discretion in the making of orders. The engineer states in his report in his recommendations: It is not possible to install a below ground root barrier between the trees and the damaged wall due to insufficient space and the likelihood that such action would either damage or cause the tree to be unstable. Given the current circumstances we would not see any other viable solution other than to recommend complete removal of the trees and where possible surrounding major roots. 18These recommendations are based on no evidence other than a visual inspection of the wall and paving and as such are of no utility. Unfortunately for the applicant he has relied on what he considered was reasonable expert advice. 19Therefore on the evidence before me, I am not satisfied to the level described in [16] that one or both of the trees has caused damage to the wall. Whilst there may be a contribution to the undulation of the paving the lack of evidence and its condition with respect to the remainder of the paved area are such that, as a matter of discretion afforded by s 9, I am not minded to make an orders with respect to remedying the situation. 20As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148 if the circumstances change and there is fresh evidence then another application can be made. However, the findings in Zangari v Miller (No 2) [2010] NSWLEC 1093 should be noted. 21Therefore as a consequence of the forgoing, the Orders of the Court are (1)The application is dismissed. J 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: 24 May 2011