Land and Environment Court New South Wales

• Medium Neutral Citation: Owners Corporation 18553 v Owners Corporation SP8717 [2013] NSWLEC 1043
• Hearing dates: 1 March 2013
• Decision date: 12 March 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; tree removal ordered; rectification of driveway ordered; no orders for rectification of fence or automatic gates

• Catchwords: TREES [NEIGHBOURS] Damage to property; potential injury
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Owners Corporation 18553 (Applicant); Owners Corporation SP8717 (Respondent)
• Representation: Applicant: Mr Tay (Agent); Respondent: Mr Szpalinski (Agent)
• File Number(s): 21175 of 2012

Judgment

1 COMMISSIONER: The parties in this matter are the Owners' Corporations of two adjoining residential flat buildings in Cabramatta.

2 The applicant is seeking the removal of two trees (and their roots) growing on the respondent's property immediately adjoining the driveway servicing the applicant's property. The applicant is also seeking rectification, at the respondent's expense, of sections of the driveway, the dividing fence, and automatic gates. The applicant contends that these structures have been damaged by the trees. The application claim form includes a 2010 quote for $15,900 plus GST for repair works including the replacement of the fence and 54m2 of concrete.

3 The application is made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

4 The respondent's position, articulated by its agent Mr Szpalinski, the Secretary of the Owners' Corporation and a resident of the property, is that the damage is not caused by the trees but rather by water moving from the applicant's property onto the respondent's property. The respondent values the trees, especially the Liquidambar for the shade it provides from the western sun and for its use by native birds, and does not wish to remove them. Mr Szpalinski stated that the trees should be able to be retained if tree protection measures were installed; however, no details of what these measures may be were forthcoming. The respondent does not consider that any compensation is payable to the applicant.

5 Mr Szpalinski stated that the Owners Corporation SP8717 had an arborist reduce the height of the Liquidambar and would be prepared to have that carried out again.

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

The trees

7 The trees are a mature Camphor Laurel and a mature Liquidambar. Mr Szpalinski contends that these trees predated the construction of both parties' properties. In his view, the driveway was installed without due regard to the future growth of the trees. The respondent's Certificate of Title was issued on 18 October 1974. The applicant's property is assumed to be of a similar age.

8 The trees are located on the western side of the respondent's property, immediately adjacent to the applicant's concrete driveway. The Camphor Laurel is to the south and the Liquidambar is towards the centre of the driveway.

9 The applicant relies on a Tree Assessment Report by Mr Shiu Narayan dated 6 June 2012. Mr Narayan was not present at the hearing.

10 The arborist uses the assessment criteria employed by Fairfield Council in determining applications under council's Tree Preservation Order. Amongst other things, Mr Narayan states that the trees are healthy and have been planted (or have been allowed to grow) within 100 mm of adjacent infrastructure, which presumably includes the driveway and dividing fence. He considers that if the driveway were to be repaired and root guards installed, then over 70% of the trees' root systems would be removed. His report does not discuss the consequences of removing this number of roots.

11 His comments on 'adverse effects' are too general to be of assistance and include a statement about "the invasive root system located in close proximity to the foundations of the building". While the report states that he inspected surface roots it appears that no other investigations were undertaken to indicate the extent or "invasiveness" of any other roots. He opines that the trees have the potential to cause further damage even with regular root pruning and the installation of root barriers. There is no specific mention made of any potential damage or injury being caused as a consequence of failures of the trees or branches. He recommends removing the trees and replacing them elsewhere with Blueberry Ash.

The damage/ potential injury

12 The alleged damage is:

• the lifting of slabs of the concrete driveway in the vicinity of each tree, with the potential consequence of creating trip hazards ;
• displacement of the metal dividing fence in the vicinity of the Liquidambar; and
• displacement of the rail and locking mechanism of automatic security gates in the vicinity of the Camphor Laurel.

 

13 Records show that the fence was installed in 1997 and the sliding gate in 1998.

 

14 The slab closest to the Camphor Laurel is lifted by approximately 100mm at its eastern end (closest to the tree). When viewed from the respondent's property, it is clear that the bottom of the slab is elevated in the immediate vicinity of the trunk when compared to the slabs on either side. The base of the tree abuts the slab.

15 The rail for the sliding gate and the freestanding section into which it locks is located in the centre of the slab adjoining the Camphor Laurel. The locking mechanism is immediately opposite and close to the tree.

16 The slab closest to the Liquidambar is similarly lifted by about 80-100mm at the eastern end. There is a very slight deflection in the top rail of the fence near the tree however a nearby panel has been severely damaged by a vehicle impact.

17 Overall, the metal dividing fence is showing many signs of wear, tear and incidental damage caused by factors other than the trees.

Findings

18 I am satisfied on the evidence I saw at the on-site hearing that the lifting and displacement of the two slabs has been caused by the Camphor Laurel and the Liquidambar. While no excavation had been undertaken to determine the presence of roots beneath the slab, with the expertise I bring to the Court, I am satisfied that the uplift and displacement of the slabs is due to the growth and expansion of the first order structural roots arising from the base of each tree.

19 I agree with Mr Narayan that the damage could be expected to continue with the continuing growth of the trees. While the raised edges of the slabs are not in the part of the driveway most likely to be used by pedestrians, they do represent a trip hazard. Therefore as a number of tests in s 10(2) are met, the Court's jurisdiction to consider what, if any, orders should be made, is engaged.

20 Section 9 of the Act enables the Court to make any orders it thinks fit to remedy, restrain or prevent damage to the applicant's property as a consequence of the trees the subject of the application. This in turn requires consideration of relevant matters under s12 of the Act.

21 Relevant here:

(a) The trees are located very close to the common boundary. Even though they may predate the development, they are nonetheless the responsibility of the respondent.

(b) In 2011, the respondent sought, and obtained, permission from Fairfield City Council to remove other trees along the common boundary with the applicant on the basis that they "may be causing damage to the boundary fence and concrete". It does not appear that the Camphor Laurel and Liquidambar were included in that request.

(b2) Impact of pruning: While no pruning of the branches is considered by the applicant, any rectification of the driveway would require significant removal of or interference with a significant portion of the supporting roots of the trees. Removal of those roots would not only destabilise the trees but it would also have a detrimental effect on the health of the trees. While it is theoretically possible to construct a suspended slab over the root zone, it may not be a practical solution in the circumstances. While the respondent has offered to reduce the height of the Liquidambar, this has no bearing on the issues raised by the applicant. The respondent did not put forward any alternative means of protecting the trees and repairing the driveway.

(b3) The respondent values the trees, in particular, the Liquidambar for the amenity it provides the residents on the western side of the building. In particular, the tree provides shade in summer as well as privacy and protection from the wind. Mr Szpalinski also contends that the tree masks the sounds of air conditioners on the applicant's property.

(d) Mr Szpalinski states that the Liquidambar is used by native birds, especially in the early spring, and it therefore contributes to the local ecosystem.

(e) The trees contribute to the natural landscape and scenic value of the respondent's property. It could be argued that they also contribute to the visual amenity of the units on the eastern side of the applicant's property.

(h) Actions of the parties/ contributing factors. In regards to the fence, as stated above, it has been installed for about 16 years and is showing many signs of damage that are not related to the trees but most likely due to varying degrees of contact with vehicles. The security gate has been installed directly in line with the Camphor Laurel, a tree that would have been well established when the gate was installed. The concrete slabs are lifted but not damaged in any other obvious way.

The respondent contends that somehow water run-off from the applicant's property has caused or contributed to the damaged driveway. The respondent provided no expert evidence (or evidence of any kind) to support this contention.

The respondent has had the top of the Liquidambar reduced; however, as stated above, this is not relevant to the issues raised in the application.

Minutes from the applicant's Body Corporate meetings (shown on site) state that in 2008 a resolution was made to send a letter to the respondent regarding the trees and the damage to the driveway. It was assumed that this was done and therefore the respondent was aware of the issue with the driveway.

(i) The applicant has not taken any action to physically reduce the trip hazards however, the claim form states that the applicant "advised all residents of trip hazards and likelihood of tree/ branch impact".

22 While the trees undoubtedly contribute to the amenity of the landscape and, in my opinion would improve the outlook for residents in both unit blocks, their position in relation to the applicant's driveway is such that ongoing damage to the driveway is inevitable if they are retained.

23 As stated above, the rectification of the driveway will require a substantial degree of root pruning, which would potentially destabilise the trees. While the Court views the removal of trees as the last, and generally least, desirable option, in this case I have determined that the trees are to be removed at the respondent's expense. The trees are to be removed to ground level and the stumps ground to at least 300 mm below ground level to the edge of the applicant's driveway. Should it wish to, the respondent has sufficient land to plant replacement trees.

24 The applicant will be required to enable any necessary access for the work to be carried out safely and efficiently. This includes the use of the driveway. However, the respondent must give the residents in the applicant's unit block at least 3 working days notice of the work.

25 In regards to the rectification of the fence, I am not minded to make any orders for any replacement of the fence at the respondent's expense. The impact of the trees on the fence is negligible. The many 'dings' in the fence indicate that damage has been caused from the applicant's side of the fence.

26 With respect to the automatic gates, I am similarly not minded to make any orders for the respondent to pay for any rectification. The location of the gates did not take the location of the tree into account.

27 The 2010 quote contained within in the claim form identifies replacement of 54m2 of concrete driveway. By my estimate on site, the area of concrete affected by the Camphor Laurel is approximately 15m2. The width of the slab is about 5m and the area affected by the tree extends about 3m from the fence. The area affected by the Liquidambar is estimated to be an area of about 14m2 (7m wide and 2m from the fence).

28 In regards to the driveway near the Camphor Laurel, orders will be made for the respondent to pay for the removal and replacement of 15m2 of the driveway and upturned edge, (and any roots beneath that section). This will involve the dismantling and reinstatement of a number of fence panels; the cost of this is to be included in any quote (NB this does not include the replacement of the fence panels with new panels). This will enable the applicant to reinstate the automatic gate in its current location. Should the applicant wish to replace any more of that section, the applicant will be responsible for those costs.

29 In regards to the section of driveway near the Liquidambar, over time, the roots beneath the slab will decompose and the slab should gradually subside. As the lifted section is away from the entrances to the units, it is less likely to be used for pedestrian access. No orders will be made for the replacement of the 14m2 area of driveway however, the 2m of lifted edges on either side of the slab are to be painted white/yellow and a suitable product (concrete/ bitumen) is to be applied to the adjoining slabs to the lifted edges to create a trafficable ramp and thus reduce the trip hazard. The respondent is to pay for this to be carried out and the applicant is to maintain it in future.

Orders

30 The Orders of the Court are:

(1) The application is upheld in part.

(2) The application for rectification of the dividing fence and the automatic gates at the respondent's expense is dismissed.

(3) Within 30 days of the date of these orders, the respondent is to engage and pay for an AQF level 3 arborist, with appropriate insurance cover, to remove the Camphor Laurel and the Liquidambar from the western boundary of the respondent's property. The stumps are to be ground to at least 300 mm below ground level to the edge of the concrete slab that supports the applicant's driveway.

(4) The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(5) Should it be required, the applicant is to provide all necessary access for the work to be carried out safely and efficiently (this includes the use of the driveway). The respondent is to give at least 3 working days notice of the commencement of the works to all residents residing in the applicant's units. This notice is to include any intention for the use of the applicant's driveway.

(6) Within 30 days of the date of these orders, the applicant is to obtain 3 quotes for the removal, replacement and modification of the driveway as explained in paragraphs [28] and [29] of this judgment. The applicant is to provide a copy of the quotes to the Secretary of the Owners' Corporation SP8717 and or the managing agent. [NB the cost of rectification of the automatic gates, including the removal of the rail and locking mechanism, is at the applicant's expense.] Any work in addition to that prescribed in the judgment is to be separately itemised and paid for by the applicant.

(7) The respondent has 10 days from the date of receipt of the quotes to select the preferred contractor and to advise the applicant in writing. If this time frame lapses, the applicant is to select the contractor.

(8) The works to the driveway are to be completed within 90 days of the date of these orders otherwise order (9) lapses.

(9) The respondent is to reimburse the applicant the cost of the works in order (6) within 21 days of the receipt of a tax invoice for the completed work.

_______________________

J Fakes

Commissioner of the Court

Decision last updated: 12 March 2013