Land and Environment Court New South Wales

• Medium Neutral Citation: Manias v Paul [2011] NSWLEC 1048
• Hearing dates: 3 March 2011
• Decision date: 03 March 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

1. Application to remove tree upheld.

2. Application for compensation upheld in part.

• Catchwords: TREES [NEIGHBOURS]; damage to property; injury to persons; compensation
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592; Barker v Kyriakides [2007] NSWLEC 292
• Category: Principal judgment
• Parties: Mr K Manias (Applicant); Ms H Paul (Respondent)
• Representation: Mr K Manias [litigant in person] (Applicant); Mr C Hunt [agent] (Respondent)
• File Number(s): 20847 of 2010

Judgment

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

1 COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Leichhardt against the owner of a Liquidambar growing on an adjoining property. The respondent's property is tenanted and the managing agent, Mr C Hunt, represented the respondent.

2 The applicant is seeking the removal of the tree on the basis that it has caused, and could continue to cause, damage to his property and that it poses a risk of injury, particularly to children.

3 The applicant is also seeking compensation for the repair/ replacement of damaged structures, the Court filing fees and for the inspection of his property to determine if there are problems with the plumbing or structural integrity of his dwelling that may be associated with the tree.

4 The tree is a mature Liquidambar growing in a raised garden bed and adjacent to the dividing fence on the northern side boundary at the rear of the respondent's property. The tree is healthy with a minor inclusion between the two main leaders.

5 The diameter at breast height is about 70 cm. The majority of the trunk is clear of the fence however the root buttresses and base of the trunk are growing against the concrete strip at the base of the fence and the outer edge of the retained garden bed in which it is growing. The roots have displaced these adjoining sections of concrete strip and garden bed. The garden bed is 3 courses of bricks high (above a concrete path), about 1 m wide and several metres long.

6 In 2009, at the request of the applicant, Council-approved pruning of the lower branches overhanging both properties was carried out.

The damage

7 The damage said to be caused by the tree is the lifting of pavers in part of the rear side courtyard of the applicant's property. The section in contention is a strip adjoining the dividing fence about 5 pavers wide extending about 7 metres from a strip drain to the rear lawn. At the hearing a paver was removed and a woody root from the Liquidambar was clearly visible. The applicant contends that the lifted pavers are a tripping hazard, especially for children.

8 Beneath the timber dividing fence is a concrete strip. The section adjacent to the tree has been displaced and cracked.

9 Two panels of the fence have been displaced due to pressure exerted at the base of a post between the panels. The fence is still functional although some separation of various components of the fence is apparent.

10 The applicant also contends that falling pods have caused small holes in the polycarbonate roof of an outdoor eating area located beneath the tree. The holes were not easy to see and there was no associated blemish/ fracturing of the panels. The panels were replaced about 18 months ago after the removal of the overhanging branches.

Compensation

11 The applicant is seeking the replacement of the roofing panels. A quote included in the application indicates a sum of $1375 for the replacement of the plastic roofing with galvanised sheeting.

12 The applicant is also seeking the repair of the fence, the removal and replacement of one concrete strip and the relaying of a section of paving. A quote of $1815 for this work is included in the application.

13 The applicant also seeks reimbursement of the Court's filing fee and for the respondent to engage professionals to advise him on what, if any plumbing or structural damage may have occurred to his property as a result of the tree.

The jurisdictional tests and findings

14 Under 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.

15 In this case I am satisfied that the tree has caused damage to the applicant's pavers and will continue to do so. I am also satisfied that the pavers present a tripping hazard and could result in injury to any person. Therefore as several of the tests in s 10(2) are satisfied, the jurisdiction is enlivened and the Court may make an order under s 9. The other elements of the application are considered elsewhere.

16 In making an order, the Court must take into account a number of matters under s 12 of the Act. The relevant clauses in this case are:

(a) The tree is substantially located on the respondent's property.

(b3) No submissions are made by the respondent on the value of the tree however I note that the tree provides shade to the respondent's dwelling.

(e)(f) The tree makes some contribution to the scenic value of the land on which it is growing. It is located in an area of small lots and, given its height, it can be seen by nearby residents and thus it provides some public amenity.

(h(i) Other factors: The pavement, fence and roofing are not so old as to contribute to the damage.

(h)(ii) Steps taken: The respondent lodged a development application (DA) with Leichhardt Council for an extension to the rear of the dwelling. Part of the DA sought the removal of the Liquidambar, apparently due to its proximity to the dwelling (about 1.5 - 2m). The DA was approved but the Liquidambar was conditioned for retention.

Conclusions

17 After viewing the evidence and taking into account the age and probable life expectancy of the tree, the location in which it is growing, and the practicality of remedying current damage and preventing future damage, the only practical solution is to remove the tree.

18 This conclusion arises from the fact that the tree is healthy, shows no signs of senescence, and therefore will continue to grow. The trunk is located within less than 1 metre from the applicant's property and therefore the structural roots are those causing the damage. Removing some of these roots and repaving may predispose the tree to structural problems and would most likely lead to a decline in health and subsequent problems of branch die back and failure. Even if these health and structural problems did not arise there would be ongoing problems with managing the interactions between roots and paving.

19 In consideration of the compensation claim, Commissioners do not have the jurisdiction to award costs associated with the making of an application.

20 With respect to possible damage to the applicant's dwelling and plumbing, in these matters the onus is on the applicant to prove the damage, on the balance of probability (that being the appropriate test); it is not for the respondent to do this. I can only assume that, as the applicant has not included problems with plumbing or structural damage to his house as part of the application, this damage has not occurred. With respect to future damage, the Court has published a guidance decision in Yang v Scerri [2007] NSWLEC 592 that, as a rule of thumb, the 'near future' is deemed to be a period of 12 months from the date of the determination. In this matter the applicant has not provided evidence of likely damage to plumbing or to his dwelling and this element of the application is dismissed.

21 However, with respect to compensation for the fence, concrete strip and paving, whilst the fence and concrete strip are effectively common property, the damage has been caused by the respondent's tree and, in the circumstances of this case, I consider the cost of repairing these structures should be borne by the respondent. Similarly, the respondent should cover the costs of repairing the applicant's paving. I am not satisfied as to the damage to the roof and no orders will be made for compensation for its replacement.

Other issues

22 The applicant raises other issues in support of the orders he seeks. These include constant maintenance of guttering due to seed pods falling from the tree, blocking of sunlight, the risk of falling pods causing injury and the noise of falling pods disturbing his sleep.

23 With respect to the maintenance of guttering, the Court has published a Tree Dispute Principle in Barker v Kyriakides [2007] NSWLEC 292 which states that the dropping of leaves, fruit and small elements of dead wood will not ordinarily lead to the making of orders for any intervention with a tree. It goes on to say that for those who live in urban leafy environments and who enjoy the benefits trees provide, some regular external housekeeping is to be expected.

24 The applicant produced no evidence to prove exceptional circumstances with respect to cleaning his gutters or any evidence of damage the pods have caused to the gutters. Similarly no evidence was produced to demonstrate the risk of injury posed by falling pods. While the tree is to be removed, these elements of the application did not influence that decision.

25 With respect to the blocking of sunlight, Part 2 of the Act does not apply. Part 2A would have been of no assistance as a single tree would not meet the jurisdictional tests in s 14A(1).

Orders

26 On the basis of the foregoing, the Orders of the Court are:

(1) The application to remove the tree is upheld.

(2) The respondent or their agent is to engage and pay for an AQF level 3 arborist with the appropriate insurances to remove the tree to at least 200mm below ground level.

(3) This work must be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4) Should it be required, the applicant is to provide all reasonable access to enable the works to be carried out in a safe and efficient manner.

(5) The respondent or their agent is to give the applicant at least 2 working days notice of the commencement of the work.

(6) The tree is to be removed within 30 days of the date of these orders.

(7) The applicant is to obtain 3 quotes for the removal and replacement of pavers - 5 courses wide from the strip drain to the rear lawn, and for the repair of 2 panels of fence and one strip of concrete.

(8) These quotes are to obtained and forwarded to the respondent's agent within 30 days of the date of these orders or order 13 lapses.

(9) The respondent's agent is given leave to obtain their own quote/s for this work. The applicant must provide all reasonable access for this to occur. The quote/quotes must be done within 30 days of the date of these orders.

(10) The respondent has 7 days from the date of receipt of the quotes to notify the applicant of their preferred contractor otherwise the applicant chooses the contractor.

(11) If the respondent's contractor is to do the work, the work must be completed within 90 days of the date of the orders. The respondent or their agent must give the applicant at least 3 days notice of the commencement of the works and the applicant must provide all reasonable access for this work to be carried out safely and efficiently. The respondent is responsible for paying their contractor.

(12) If the contractor is engaged by the applicant, the works are to be completed within 90 days of the date of these orders otherwise order 13 lapses.

(13) If the applicant's contractor undertakes the work, the respondent is to reimburse the applicant the cost of the work within 21 days of the receipt of a tax invoice for the completed work.

J Fakes

Commissioner of the Court

**********

Decision last updated: 11 March 2011