Land and Environment Court New South Wales

• Medium Neutral Citation: Theuma & anor v Di Bella & anor [2013] NSWLEC 1156
• Hearing dates: 16 August 2013
• Decision date: 16 August 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; tree removal ordered; compensation for damaged roof

• Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; compensation for damage
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Robson v Leischke [2008] NSWLEC 152
• Category: Principal judgment
• Parties: Mr J Theuma; Ms M Theuma (Applicants); Mr C Di Bella; Ms J Di Bella (Respondents)
• Representation: Applicant: Mr J Theuma (Litigant in person); Respondent: Mrs J Di Bella (Litigant in person)
• File Number(s): 20366 of 2013

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: The applicants in these proceedings seek orders for the removal of a Cocos Palm and rectification of property they say the tree has damaged. An application under s 7 Part 2 of the (Disputes Between Neighbours) Act 2006 (the Act) has been made.

2 The initial application identified a panel of the garage roof that had been punctured by a palm frond. The claim form includes a claim of $616.00 for its replacement (this being the cheapest of two quotes sought by the applicants).

3 The Registrar granted leave for the application to be amended to include a claim for the rectification of a brick wall the applicants contend has also been damaged by the tree. This damage came to light after the making of the initial application when a cupboard in the garage was removed. The amended claim form includes quotes for the repair of the wall ranging from $3883 - $6050.

4 The respondents do not wish to remove the tree. They question the ability of a palm frond to puncture a metal roof and dispute that the crack in the wall has been caused by the roots of the palm given the presence of a larger crack in the wall away from the palm.

5 The tree is a mature Syagrus romanzoffiana (Cocos or Queen Palm). The tree was present when the respondents purchased their property about eleven years ago but planted after the applicants built their garage about 35 years ago. The palm is within about 500mm or so of the garage wall and its crown overhangs the building.

6 Mr Joe Lilley, Burwood Council's Tree Management Officer attended the hearing and advised that this species is exempt from council's tree removal controls.

7 Before the Court's power to make orders is engaged, one or more of the tests in s 10(2) of the Act must be satisfied. This states that the Court must not make an order under Part 2 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.

8 In regards to the applicants' garage roof, the initial application claim form includes photographs of a dead palm frond, the base of which is shown to have punctured the metal roof of the garage. As the Cocos palm is the only tree in the vicinity from which this could have come, I am satisfied to the extent required by s 10(2) that the palm caused the damage to the roof. Therefore on this basis, the Court's power to make orders under s 9 of the Act is engaged.

9 In regards to the crack in the wall, the crack is visible from the respondents' property as a fine crack in the brickwork starting from the fifth course of bricks (from the bottom of the wall) and extending upwards. The crack is approximately 1m to the north of the trunk. There is another much larger crack several more meters to the north. The applicants stated that there used to be another tree in the vicinity but it was removed before the respondents purchased their property.

10 From within the applicants' garage there is a crack in the render at presumably the same location. There are fine palm roots visible at the base of the wall where it joins the floor slab. The applicants stated that this only became visible when they removed a cupboard from the wall.

11 On the face of it, it could be reasonable to assume that the palm roots may have contributed to the crack in the wall. In Robson v Leischke [2008] NSWLEC 152 at [179] Preston CJ considers it is sufficient if the tree is 'a' cause of the damage for the Court's jurisdiction to be engaged.

12 Before determining what, if any, orders should be made the Court must consider a number of matters under s 12 of the Act. In my view, the most relevant of these is s 12(h) - anything other than the tree that may have contributed to the damage and the actions of the parties.

13 The garage was built some 35 years ago. The wall is single brick with pillars. The local soil is moderately reactive clay - that is, it swells when wet and shrinks when dry. As noted above, there is another larger crack in the same wall which may or may not have been associated with a tree long since removed. These are all factors that are likely to have contributed to the overall condition of the garage.

14 In regards to the notice given to the respondents in regards to the wall, the applicant only became aware of the crack after a cupboard was removed. The first notice the respondents received of the new problem was through the service of the amended application some 9 days before the hearing. In my view this has deprived the respondents of taking any action including undertaking an independent assessment of the problem.

15 The applicants have produced no expert evidence to suggest that the crack is structurally significant or is anything other than cosmetic. There is no evidence to indicate the method of construction of the garage and the relationship between the base of the brick wall and the floor slab. Tree roots could exploit any gap in this area.

16 After considering the evidence and the discretionary matters in s 12, I propose to order the removal of the palm. It is a normal occurrence for palms to shed their dead fronds and their fruit. This species produces heavy bunches of fruit (fruit fall is noted by the applicants). While it is open for me to order the respondents to undertake the regular removal of dead fronds and fruit, this would be expensive in the long run. Although I am not satisfied that the roots are a significant factor in the cracking of the wall, they are present and any root pruning could impact the tree's stability. Therefore, I consider the practical and prudent option is to remove the palm.

17 In regards to the rectification of the applicants' garage roof, I think it is reasonable that the respondents reimburse the applicant for the damage. While the respondents argued that the tree was present when they purchased their property, as owners, they have assumed responsibility for the tree. However, for the reasons given above, I do not think the respondents should contribute to any rectification of the garage wall.

18 Therefore as a consequence of the foregoing, the Orders of the Court are:

(1) The application is upheld in part.

(2) The application for compensation for the damage to the garage wall is dismissed.

(3) Within 30 days of the date of these orders, the respondents are to engage and pay for an AQF level 3 arborist with appropriate insurance cover to remove the palm tree to ground level. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) Should it be required, the applicants are to provide all reasonable access for the tree removal to be carried out in a safe and efficient manner on reasonable notice.

(5) The respondents or their agents are to remove all palm roots to a depth of 300mm beside the garage wall to a distance of one metre either side of the palm (approximately 2.4m) and to a width of at least 200 mm. The trench is to be backfilled with soil.

(6) Within 30 days of the date of these orders, the applicants are to obtain at least three quotes for the replacement of 1x 2m length of roofing to replace the section damaged by the palm. Should they wish to, the respondents may obtain up to two quotes for the same work. The quotes are not to include the removal of the temporary structure that covers the damaged section of roof; this is to be removed by the applicants or at their cost.

(7) Within 35 days of the date of these orders, the parties are to have exchanged quotes and have agreed on the contractor. The applicants are to engage and pay for the nominated contractor.

(8) The roof repairs are to be completed within 60 days of the date of these orders otherwise order (9) lapses.

(9) The respondents are to reimburse the applicants the cost of the replacement of the roof panel within 21 days of the receipt of a tax invoice for the completed work.

_____________________

Judy Fakes

Commissioner of the Court

Decision last updated: 16 August 2013