Land and Environment Court New South Wales

• Medium Neutral Citation: Tran v Wu [2011] NSWLEC 1355
• Hearing dates: 12 December 2011
• Decision date: 12 December 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; tree removal ordered; orders for part compensation

• Catchwords: TREES [NEIGHBOURS] Damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mr V H Tran (Applicant); Mr W H Wu (Respondent)
• Representation: Mr Tran (Litigant in person); Mr Wu (Litigant in person)
• File Number(s): 20868 of 2011

Judgment

1 This is an application under section 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 made by the owner of a property in Riverwood against the owner of a tree growing in an adjoining property.

2 Mr Tran is seeking orders for the removal of a Cedrus deodara (Himalayan Cedar) growing in Mr Wu's front garden and the relaying of pavers Mr Tran says have been uplifted by the roots of the tree. Mr Wu has permission from Hurstville City Council to remove the tree. Mr Wu seeks alternative orders to allow him to access Mr Tran's property to repair the damage. However, Mr Tran wishes the work to be carried out by someone with the appropriate licence and insurance.

3 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. Section 9 gives the Court a degree of discretion in the making of orders.

4 The hearing commenced with an inspection of the paving at the rear of Mr Tran's property. It was clear from the location of the lifted pavers and the type of uplift that had occurred, that roots from the Cedar had caused the damage. There is approximately 40m 2 of paving that needs to be relayed.

5 Mr Tran said that he had owned his property for about four years, however, Mrs Wu disputed this; she thought Mr Tran had lived there for longer. The Wu family have lived on their property for about 11 years.

6 Mr Tran said that when he moved in the paving was level, and about 3 years ago he noticed the lifting however, he only brought it to the attention of Mr Wu in May this year as he was concerned the roots may cause structural damage to his house.

7 On the evidence before me, I am satisfied that the roots from the tree have caused the damage to the pavers, as this is the only tree in the vicinity. In some circumstances I would consider the retention of the tree and the installation of a root barrier at the fence line, however in this instance, the tree is too close to the fence and the cutting of roots could destabilise the tree. Therefore, orders will be made for the removal of the tree. The tree may be cut to ground level or left as a stump 1m above ground.

8 In regards to how much Mr Wu should contribute to the cost of relaying the paving, the fact that Mr Tran did not let his neighbour know about the problem until recently denied Mr Wu the chance of dealing with the problem sooner, thus limiting the damage. I also struggle to accept that the problem only became obvious three years ago, as the tree is a slow growing mature specimen. For this reason, I am limiting Mr Wu's contribution to 50% of the cost of the repaving works.

9 The area of the respondent's backyard to be repaved is bounded by the dividing fence between the parties' properties and the surface drain near the back door, and 8m from the eastern boundary to a point between the brown downpipe and the white post. Once the pavers are lifted, the roots are to be cut along the boundary fence and removed; the area is to be levelled and compacted and the pavers relayed. The work is to be done to a professional standard by a licensed contractor.

10 Therefore, the Orders of the Court are:

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

(2) Within 2 months of the date of these orders, the respondent is to organise the removal of the tree to a minimum height of 1m above ground level.

(3) Within 3 months of the date of these orders, the applicant and the respondent are to obtain at least two quotes each from licensed landscapers or paving specialists for the removal and relaying of the pavers as described in paragraph [9] of this judgment.

(4) The applicant is to allow access to his property for the purpose of quoting. The respondent is to give the applicant at least two days notice of the timing of the quote.

(5) Once the quotes have been obtained, the applicant and the respondent are to agree on the cheapest quote.

(6) The applicant is to engage and pay for the selected landscaper/ paving specialist. The paving is to be completed within 6 months of the date of these orders.

(7) The respondent is to reimburse the applicant for 50% of the cost of the repaving within 21 days of the receipt of a tax invoice for the completed work.

___________________________

J Fakes

Commissioner of the Court

Decision last updated: 12 December 2011