Land and Environment Court New South Wales

• Medium Neutral Citation: The Owners Strata Plan 37231 v Kao & anor [2012] NSWLEC 1333
• Hearing dates: 4 December 2012
• Decision date: 04 December 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; rectification ordered

• Catchwords: TREES [NEIGHBOURS] damage to property; trees already removed; compensation for damage
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: The Owners Strata Plan 37231 (Applicant); W.B. and H.T Kao (Respondents)
• Representation: Applicant: Mr I Feltham (Agent); Respondents: Ms S Kao (Agent)
• File Number(s): 20794 of 2012

Judgment

1 COMMISSIONER: The applicant in these proceedings claims that roots from three trees growing on the respondents' property have caused damage to a retaining wall and footpath on the southern side of their property.

2 The three trees have been removed but they were an Oleander, Ficus sp (Fig) and an Umbrella Tree. The stumps of the trees remain on the northern side of the respondents' backyard. Under s 4(4) of the Trees (Disputes Between Neighbours) Act 2006 (the Act) the Court has jurisdiction to make orders if damage has been caused by trees that have been removed as long as they were on adjoining land.

3 In applications made under s 7 Part 2 of the Act, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order under this Part unless it is satisfied that any of the trees the subject of the application have caused, are causing, or could in the near future cause, damage to the applicant's property or injury to any person.

4 An inspection of the applicant's property showed two sections of the concrete footpath and two adjoining sections of a crib-type retaining wall have been displaced. The retaining wall is constructed of pre-fabricated interlocking oxidised concrete blocks. The wall is 3 blocks high and retains a small garden bed along the southern boundary of the applicant's property. The path adjoins the base of the wall. The concrete path is about 50 mm thick.

5 The first section is opposite the foyer and stairwell located towards the centre of the applicant's building. There is a root clearly visible between the 3rd and 4th segments of footpath to the east of the covered porch outside the foyer. The section of retaining wall near the join is also displaced. The closest plant to which the root is likely to belong is the Oleander; the stump is located within a metre of the wall and path.

6 On the evidence, I am satisfied that the roots from the oleander have caused the displacement and that s 10(2) is satisfied.

7 The second section is to the east of a drainage pit located towards the eastern end of the southern boundary. The two slabs of pavement to the east as well as the adjoining section of retaining wall have clearly been displaced by a large woody fig root. The root can be seen on either side of the lifted section of pavement and below and above the retaining wall.

8 The root snakes across the surface of the pebble covered garden bed to the north of the path but there is no evidence to show that this section of root has caused any damage. As the tree has been removed and the stump poisoned, it is unlikely that there will be any future problems arising from this root.

9 One of the pavement slabs has a hole in it however, on close inspection, the hole appears to be a material failure of the concrete itself rather than being caused by tree roots.

10 As for the previous section, I am satisfied that the fig roots have caused the damage to the applicant's property and as s 10(2) is satisfied, the Court's jurisdiction is engaged.

11 The orders the applicant seeks are the removal of the trees and the repair of the damaged pathway and retaining wall; this is to be entirely at the respondents' expense. As the trees have been removed, the first element of the application has been dealt with. The applicant contends they wrote to the respondents in April and May this year alerting them to the problem. The application claim form included an estimate of $400 for the repair work.

12 The respondents contend they should not be required to pay the full cost of the repair work as they consider they were not given reasonable warning of the problem and so were denied taking action earlier. They state they were first notified in September this year and removed the trees within a week. They also offered to pay the $400 in the claim form. They subsequently obtained a quote of $460 for the repair of the wall and pavement in section 2 and were willing to pay for that.

13 The applicant has since obtained two quotes of approximately $3000 however this includes the repair of the entire length of retaining wall between sections 1 and 2 as well as repair of paving and the removal of the large surface root described above.

14 In determining what orders should be made I am satisfied that the damage is unlikely to have arisen in the absence of the trees. In these matters, the cost of rectifying the problem usually rests with the tree owner however in some circumstances some apportionment of costs is reasonable.

15 Given the size of the fig root, and the degree of uplift in the second section of pathway, I am surprised that this was not noticed earlier than April this year (the earliest date on record). I accept the respondents' position that had they been notified earlier, action could have been taken to minimise the problem and I agree that some discounting should be allowed on this basis.

16 I am not satisfied that the full extent of the retaining wall between the two visible roots should be rebuilt as I was shown no evidence of roots causing damage to any other part of the wall. The nature of the wall is that is can be easily dismantled and rebuilt in small sections. Similarly, the pathway does not need replacing; the displaced slabs simply need lifting and putting back once roots have been removed from beneath them. If the applicant wishes to fully replace the section of path with the hole in it, this can be at their expense.

17 While the applicant's agent expressed concern over the large surface root in the garden to the north of the path, there was no evidence that this section of root had caused any damage and therefore no orders can be made for its removal but it is clearly open for the applicant to do so if they wish.

18 Therefore after hearing from the parties and viewing the evidence I find that the following work should be carried out.

19 For section 1, opposite the foyer on the mid section of the building, the 3rd and 4th segments of the footpath are to be lifted for relaying. The retaining wall adjoining this section of the path is to be rebuilt. The extent of the wall to be rebuilt is limited to the length of wall that includes the bottom block to the west of the join between the slabs (where the root is obvious) to the two bottom blocks to the east of the join. Once the section of wall and path slabs are removed, all woody roots are to be removed from beneath the path to a distance of 100mm to the north of the path and to up to 300mm on the southern side of the garden-side edge of the retaining wall. The area is to be prepared for the relaying of the two sections of path and the rebuilding of the section of the wall.

20 For section 2 towards the south-eastern end of the building, the two segments of footpath are to be lifted for relaying. The adjoining retaining wall is to be rebuilt to the length extending six bottom blocks to the east of the drainage pit. Root removal, site preparation and relaying are to be carried out as described in paragraph [19].

21 Therefore the Orders of the Court are:

(1) The application is upheld in part.

(2) Within 30 days of the date of these orders, the applicant must obtain at least two quotes and the respondents may obtain up to two quotes for the work described in paragraphs [19] and [20] of this judgment. Should the applicant require any additional work, such as the replacement of any of the segments of footpath or any other work to the wall, these must be separately itemised on any quote.

(3) Within the 30 day period the parties are to exchange quotes and agree on the cheapest quote. The applicant is to engage and pay for the nominated contractor.

(4) The work is to be completed within 60 days of the date of these orders.

(5) The respondents are to reimburse the applicant 90% of the cost of the work described in [19] and [20] within 21 days of the receipt of a tax invoice for the completed work. Any additional work is at the applicant's expense.

_________________________

J Fakes

Commissioner of the Court

Decision last updated: 05 December 2012