Land and Environment Court New South Wales

• Medium Neutral Citation: Mosca v Wah Mak [2011] NSWLEC 1264
• Hearing dates: 6 September 2011
• Decision date: 06 September 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld; tree removal ordered; compensation ordered

• Catchwords: TREES [NEIGHBOURS]; damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr F Mosca (Applicant); Mr C Mah Wak (Respondent)
• Representation: Applicant: Mr F Mosca (Litigant in Person); Respondent: Mr C Mah Wak (Litigant in Person)
• File Number(s): 20507 of 2011

Judgment

1 COMMISSIONER: This is an application pursuant to s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Liverpool against the owner of a tree growing in the front yard of an adjoining property.

2 The applicant is seeking the removal of the tree on the basis of the damage he says it has caused to his driveway, sewer line and front steps. He is also seeking compensation for the replacement of the driveway and steps.

3 The tree is a Camphor Laurel in its early maturity; it grows across the side boundary of the parties' properties. The respondent states that he has permission from Liverpool City Council to remove the tree, however, as he believed the tree was jointly owned, he sought a contribution from the applicant. A survey obtained by the respondent shows the tree to be substantially on the respondent's property.

4 The tree and the alleged damage were inspected at the on-site hearing. It is clear that the roots of the tree have lifted and cracked approximately 10m of the applicant's driveway. The driveway consists of 2 concrete wheel tracks extending from the front boundary to a garage at the rear of the applicant's dwelling. The concrete slabs are approximately 100 mm thick and date back to 1964 when the applicant built his house.

5 The applicant is also concerned about a slight separation between the front wall of the house and the brick and concrete front steps. A small woody root was seen in the gap; the applicant has cut the root. The steps are approximately 3m from the nearest strip of driveway and connected to the driveway by a concrete path. The bricks that support the concrete steps are not cracked or displaced. The concrete steps show signs of normal wear and tear. Apart from the slight displacement away from the wall of the house, from the evidence before me, the tree roots do not appear to have damaged the steps. Apart from the section of path associated with the driveway strip closest to the house, the path is slightly displaced but is not cracked and is entirely functional.

6 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.

7 In this matter I am satisfied that the tree has caused the damage to the applicant's driveway, and if it remains, is likely to cause further damage. With regards to the applicant's sewer, there is no evidence apart from an invoice for clearing it however, given that the Camphor Laurel is the only nearby tree, it is possible it contributed to the damage. The steps are functional and apart from the minor displacement, do not appear to have been damaged by the roots and therefore no compensation will be ordered for their repair.

8 The replacement of the driveway will require excavation that would involve the removal of major supporting roots. The consequences of doing so would compromise the health and stability of the tree. The proximity of the tree to the driveway, its growth potential, and the presence of many large woody roots on the soil surface make it impractical in the circumstances to order anything other than the removal of the tree.

9 The removal of the tree and the roots beneath the driveway will prevent any further displacement of the steps and blockage of the sewer.

10 With respect to the compensation, the Court must consider a number of matters under s 12 of the Act, including s 12(h)(i) - anything other than the tree that may have contributed to the damage. In this case, the driveway is 47 years old and the damaged section is the section most likely to be frequently used. However, I consider that the tree has been a major contributor to the damage and the respondent should pay the majority of the cost of replacing the damaged sections. In this matter I have determined that should be 80% of the cost of replacing the damaged sections.

11 The applicant obtained a quote of $5900 for the replacement of the driveway with new reinforced concrete. The quote does not specify the extent of the works but it would appear that the quote may be for a full driveway from the front gate to the garage; an area more extensive than that disturbed by the tree. It would be unreasonable for Court to order compensation for anything more than the damaged section.

12 Therefore I propose to order that quotes be obtained for replacement of 10m of the two strips of concrete (both comprised of 11 segments of concrete) from the front boundary to the drain inlet on the southern side of the applicant's dwelling. The strip on the northern side includes a section of uplifted concrete that forms the path to the front door; that section is to be included. Should the applicant require any additional works, the extra work is to be clearly identified on the quote as the respondent is only required to pay for 80% of the replacement of the two 10m strips of driveway.

13 Therefore, as a consequence of the forgoing, the Orders of the Court are:

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

(2) Within 30 days of the date of this judgment, the respondent is to engage and pay for an AQF level 3 arborist to remove the tree to ground level and to poison the stump.

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

(4) The application for compensation for damaged property is upheld in part.

(5) Within 60 days of the date of this judgment, the applicant is to obtain 3 quotes for the removal and replacement of 10m of the two concrete driveway strips from the front boundary to the drain inlet on the southern side of his property. Within the same timeframe, the respondent is to obtain at least one quote for the same work. The parties are to provide each other with a copy of the quotes.

(6) Should the applicant wish to include additional work such as more extensive concreting, the extra work must be clearly shown on the quote.

(7) If the parties cannot agree on a contractor, the cheapest quote obtained by the applicant is to be accepted.

(8) The applicant is to engage and pay for the contractor and the works are to be completed within 120 days of the date of this judgment otherwise order 9 lapses.

(9) The respondent is to reimburse the applicant 80% of the cost of removing and replacing the two 10m lengths of driveway within 21 days of the receipt of a tax invoice for the completed work.

________________________

J Fakes

Commissioner of the Court

Decision last updated: 08 September 2011