Land and Environment Court New South Wales

• Medium Neutral Citation: McArthur v Miernik [2011] NSWLEC 1359
• Hearing dates: 13 December 2011
• Decision date: 13 December 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part

• Catchwords: TREES [NEIGHBOURS] damage to property,
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006; Trees (Disputes Between Neighbours) Regulation 2007
• Cases Cited: Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mr P McArthur (Applicant); Mrs A Miernik (Respondent)
• Representation: Applicant: Mr P McArthur (Litigant in person); Respondent: Mr W Miernik (Agent)
• File Number(s): 20838 of 2011

Judgment

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

1 COMMISSIONER: This is an application under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Waratah against the owner of trees growing on an adjoining property.

2 The applicant, Mr McArthur, is seeking orders for any action to remedy and prevent damage to the timber dividing fence between the parties' properties that he contends has been caused, and will continue to be caused, by trees and shrubs growing along the respondent's side of the fence. In addition, he is seeking the payment of costs in relation to the replacement of approximately 60m of fence. Mr McArthur also seeks appropriate orders for the prevention of any damage that may be caused by a Camphor Laurel.

3 The respondent was represented by her son, Mr Miernik, who resides in the family home. Mr Miernik accepts that some damage has been caused by his trees but considers that only a 7.3m section of fence and about 20-30 individual palings should be replaced. He is prepared to pay 2/3 of the cost.

The Camphor Laurel

4 The Camphor Laurel is growing in the front garden of the respondent's property. The tree appears healthy but has ivy growing through it. Mr McArthur is concerned that the ivy is strangling the tree and parts may subsequently fail onto his property. Mr Miernik has removed some overhanging branches.

5 Under s 10(2), the Court must not make an order unless it is satisfied that any or all of the trees subject to the application, have caused, are causing, or could in the near future cause, damage to property or injury to any person. In this application, injury is not pressed.

6 Whilst the growing of ivy on a tree is not recommended, there is nothing in the appearance of the tree that would lead me to conclude that any part of the tree could cause damage to the applicant's property in the near future. In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, the Court has determined that the 'near future' is a period of 12 months from the date of the hearing. I consider that time frame to be appropriate in this matter.

7 Therefore, as s 10(2) is not satisfied for this tree, the Court has no jurisdiction to make any orders for any interference with the Camphor Laurel and this element of the application is dismissed.

The fence

8 The fence was in place when Mr McArthur purchased his property in 1999. Mr Miernik estimates the fence to be 15-18 years old. Mr McArthur contends that trees, shrubs, vines and bamboo growing on the respondent's property have damaged the fence by pushing against it, dislodging palings and putting pressure on the posts causing the fence to lean. He obtained quotes for the replacement of the length of the fence from a rear shed to the street frontage.

9 Parts of the fence appeared in reasonable and functional condition. Some of the cross bars had moved away from the posts. Several palings were broken. The most deteriorated section of the fence is the last 11m or so to the edge of a shed at the rear of the applicant's property. Mr McArthur contends the poor condition is due to bamboo growing through the fence as well as keeping it moist. Mr Miernik accepts that the bamboo would have had some effect but the palings in this part of the fence may be of a lower quality.

10 At the time of the hearing, most of the vegetation along the respondent's side of the fence, with the exception of the bamboo, had been cleared away from the fence. However, photographs tendered by the applicant show where other trees, shrubs and vines had previously grown through the fence.

11 The Trees (Disputes Between Neighbours) Regulation 2007 prescribes bamboo and vines as trees for the purpose of the Act. I am satisfied that vegetation growing on the respondent's land has caused damage to the dividing fence and, as s 10(2) is satisfied, the jurisdiction is enlivened and the Court may make an order.

12 There was some dispute between the parties as to how much of the fence should be replaced and what should be repaired; the difference in opinion related to the condition of the cross beams. The parties agreed that the 2.15m section forward of the corner of the applicant's shed should be repaired. I accept Mr McArthur's position that the next four panels should be replaced (a 9.5 m section) rather than Mr Miernik's view that three panels (7.3m) should be replaced and the other repaired. The parties agreed that another 12 or so individual palings along the fence need to be replaced. Some posts and top crossbars may need adjusting. It was agreed that a licensed fencing contractor should the fence should carry out the work.

13 To enable the sections of fence to be replaced, the bamboo is to be cleared to a distance of at least 1m from the fence. In order to prevent future damage to the fence, orders will be made to prevent/ control any regrowth of bamboo within 1m of the fence.

14 Although the costs of replacing dividing fences are commonly shared equally by neighbouring properties, in this instance, the deterioration of the fence has been accelerated by the respondent's trees growing through the fence. The applicant's contribution is 30% of the costs of repair and replacement as there is a degree of normal wear and tear as a function of the age and material construction of the fence.

15 Therefore, the Orders of the Court are:

(1) The application in respect of the Camphor Laurel is dismissed.

(2) The application in respect of the fence is upheld in part.

(3) The respondent has until the end of January 2012 to remove all bamboo within 1m of the dividing fence for the length of the fence commencing at the south-eastern corner of the applicant's shed to the most easterly extent of the bamboo. That 1m zone is to be kept free of bamboo from that time onward.

(4) The respondent is to obtain two quotes, and the applicant at least one quote, from licensed fencing contractors for the replacement of four panels of fence (9.5m) commencing 2.15m east of the south-eastern corner of the applicant's shed. If any of the 5 posts in that section need replacing, the quote is to itemise the posts separately. The quotes need to include the replacement of 12 individual palings and the repair of the 2.15m section of fence east of the south-eastern corner of the applicant's shed. The parties have until end of January 2012 to obtain the quotes and agree on the choice of contractor.

(5) The respondent is to engage and pay for the contractor. The fencing work is to be completed by Friday 2 March 2012.

(6) The applicant is to reimburse the respondent 30% of the cost of the fencing works within 21 days of the receipt of a tax invoice for the completed works.

_____________________

J Fakes

Commissioner of the Court

Decision last updated: 15 December 2011