Land and Environment Court New South Wales

• Medium Neutral Citation: Worthing v Medojevic [2011] NSWLEC 1052
• Hearing dates: 2 March 2011
• Decision date: 02 March 2011
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1) The application to prune the tree is dismissed.

(2) The application for compensation is upheld in part.

(3) The applicants are to organise and pay for repair to their driveway (removal of uneven pavers, cutting of roots, replacing pavers on a level surface).

(4) The respondent is to pay to the applicants a sum of $110 within 14 days of being notified that the works have been completed.

(5) If the works in Order 3 are not carried out within 6 weeks of the date of these orders, Order 4 lapses.

• Catchwords: TREES [NEIGHBOURS]; damage to property, injury to persons; compensation
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: G and R Worthing (Applicants); B Medojevic (Respondent)
• Representation: G and R Worthing [litigants in person] (Applicants); B Medojevic [litigant in person] (Respondent)
• File Number(s): 20861 of 2010

Judgment

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

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Willoughby against the owner of a tree growing on an adjoining property.

2 In their application the applicants sought pruning of the tree, removal of tree roots and compensation for repair to damaged paving and for potential damage to their garage.

3 The respondent wishes to retain the tree.

4 I note that since the application was served on the respondent, the respondent has undertaken pruning of the tree, removing all branches overhanging the common boundary, and cutting a large root between the base of the tree and the common boundary.

FINDINGS

5 I viewed the tree from both properties. It is a healthy avocado tree in the respondent's rear garden near the common boundary. It is currently bearing fruit. It has been pruned (November 2010) so that all limbs overhanging the applicants' property have been removed.

6 There is a brick paved driveway to the applicants' garage, which is in the rear corner of the property. Where the driveway passes closest to the avocado tree, approximately one metre from the base of the tree, there are ten or so pavers that have been lifted so as to form a ridge. This is directly in line with the root cut by the respondent.

7 The applicants pointed out that brick paving further from the tree is also uneven, but I note that the disruption to the level surface is minor and not problematic.

8 The applicants have received a verbal quote of $650 to repair the approximately six metre section of paving forward of the garage. They explained that this would involve lifting the pavers, cutting roots, levelling the surface and replacing the pavers.

9 The applicants contend that they have raised the issues concerning the tree with the respondent over the last six years; however their concerns regarding roots affecting the paved driveway were raised only recently.

10 The applicants had been concerned of the risk of injury from falling fruit and limbs, but stated that this risk no longer exists as all limbs over their property have been removed.

11 The applicants were also concerned about vermin attracted to the fallen fruit, and that the tree shades their garden during winter.

12 The applicants are concerned that roots may cause damage to their garage. There is no damage to the garage from tree roots at present and no evidence was given suggesting this was likely.

13 The applicants also claim that the avocado tree has caused their olive tree to grow with an unbalanced form. The olive tree is still young and has new epicormic shoots developing since the avocado tree was pruned.

JURISDICTION

14 Under s 10(2) of the Act, the Court cannot make any orders 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.

15 Since the tree has been pruned, it is unlikely to cause injury.

16 Shade and vermin are not damage to the applicants' property.

17 No evidence was presented to show that tree roots are likely to cause damage to the garage in the near future.

18 The applicants' olive tree has grown on a lean due with an uneven crown due to overshadowing, but this does not equate to damage.

19 However I am satisfied that the lifting of the pavers near the avocado tree is likely to be caused by that tree and is damage to the applicants' property. Therefore the Act is enlivened.

DISCRETION

20 In determining the application, the Court is to consider the matters outlined in s12 of the Act. The clauses I regard as relevant to this situation are:

(a) The tree is entirely on the respondent's land.

(b3)The tree provides shade and privacy to the respondent's property.

(e)The tree contributes to the natural landscape of the respondent's property.

(h)(i)With regard to the general uneven surface of the paving, I note that other trees are in the vicinity, including the applicants' olive tree, and may be contributing.

(h)(ii)The respondent has removed overhanging branches and cut one large root that grows into the applicants' property. The respondent was only recently made aware that tree roots may be lifting the paving.

21 With consideration of the points outlined above, the Court can make orders described in s 9 of the Act.

22 I find that it is likely that the respondent's tree has caused the lifting of several pavers near the tree for a length of approximately one metre of the driveway. This is approximately a sixth of the section of the driveway covered by the quote of $650 received by the applicants.

23 Apart from this the tree has not been shown to have caused damage, nor is it likely to in the near future.

ORDERS

24 Therefore, the Orders of the Court are:

(1) The application to prune the tree is dismissed.

(2) The application for compensation is upheld in part.

(3) The applicants are to organise and pay for repair to their driveway (removal of uneven pavers, cutting of roots, replacing pavers on a level surface).

(4) The respondent is to pay to the applicants a sum of $110 within 14 days of being notified that the works have been completed.

(5) If the works in Order 3 are not carried out within 6 weeks of the date of these orders, Order 4 lapses.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 14 March 2011