Land and Environment Court New South Wales

• Medium Neutral Citation: Peck v Matar [2012] NSWLEC 1037
• Hearing dates: 9 February 2012
• Decision date: 09 February 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

(1) The applicant is to engage and pay for a qualified (minimum AQF Level 3) horticulturist or arborist to cut at the boundary any roots coming from the neighbouring Weeping Fig trees. The roots are not to be poisoned. These works are to be completed within 30 days of the date of these orders.

(2) Within 30 days of the date of these orders, the applicant is to obtain and provide to the respondent two quotes to make good or repair the WC wall within one metre of the external doorway.

(3) Within 30 days of the date of these orders, the respondent is to obtain two quotes to make good or repair the WC wall within one metre of the external doorway.

(4) On reasonable notice and at a reasonable time of the day, the applicant is to provide access for the tradespeople or builders chosen by the respondent to quote on the works.

(5) The respondent is to select one of the four quotes from (2) and (3) and notify the applicant of her choice within 45 days of the date of these orders.

(6) The applicant is to engage and pay for the chosen tradesperson to carry out the works within 3 months of the date of these orders.

(7) The applicant is to provide the respondent with a copy of the paid invoice within one week of completion of the works.

(8) The respondent is to pay the applicant 50% of the invoice amount within two weeks of receipt of the paid invoice.

(9) If orders (6) and (7) are not complied with, order (8) lapses.

• Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS): damage to property; compensation ordered.
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Category: Principal judgment
• Parties: Mrs Lilian Peck (Applicant); Mrs Julia Matar (Respondent)
• Representation: Mr G Peck (Agent for the Applicant); Mr N Badra solicitor (Respondent)
• File Number(s): 20993 of 2011

Judgment

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

1 Two Ficus benjamina (Weeping Fig) trees grow on the respondent's land near the common boundary with the applicant's land. The trees are 10 to 12 metres tall and provide shade and amenity to both properties. The applicant claims that roots from these two trees have caused damage to her property.

2 The application is made pursuant to Part 2 s 7 of the Trees (Dispute's Between Neighbours) Act 2006 . The applicant seeks removal of at least one of these trees (Tree 2) and compensation for repair works. She also seeks costs for reports, although this requires a Notice of Motion for a judge to hear that part of the application as Commissioners cannot award costs. Three other Ficus trees have been removed by the respondent and that part of the application is no longer pressed by the applicant.

3 I am to determine if the trees have caused damage and, if they have, what orders would be appropriate with regard to the trees and compensation.

Site inspection and evidence

4 The onsite hearing included viewing of the trees and damage, beginning on the applicant's property. The applicant was represented by her son.

5 Tree 1 is toward the southern end of the respondent's property, approximately 2.5 metres from the boundary and the southwest corner of the applicant's workshop. Tree 2 is further to the north, approximately one metre from the boundary.

6 Tree roots could be seen growing from Tree 2 beneath the fence and toward the applicant's dwelling. The applicant pointed out a root between the garden steps and the WC wall. The applicant indicated damage to the garden steps, the concrete path, the WC wall and the concrete slab floor of the workshop.

7 The applicant contends that: roots from Tree 1 have caused cracking of the workshop's concrete slab floor; and that roots from Tree 2 have lifted and displaced the garden steps, cracked the concrete path, blocked the stormwater pipe and caused lateral displacement of the WC wall.

8 The respondent suggests that roots have not necessarily caused the damage, pointing to cracking of the concrete slab and pathways elsewhere, including on the eastern side of the applicant's land, well away from the trees. The respondent also submits that damage to the WC wall is due to pressure build-up behind the adjacent retaining wall due to a lack of adequate drainage. The respondent highlights the age of the property (it dates from the 1920s) and states that the condition of the items in the claim is similar to the condition of other parts of the property.

Does the Court have jurisdiction?

9 There seems little doubt that roots from the respondent's fig trees have, at the very least, contributed to damage to the applicant's property. Woody roots grow toward and beneath the cracked concrete path and slab. The age and construction of the concrete are such that it would be expected to crack with the force of root growth. I am therefore convinced that the jurisdictional test at s 10(2) of the Act is satisfied: the trees (both Tree 1 and Tree 2) have caused, are causing, or are likely in the near future to cause, damage to the applicant's property.

Other matters to be considered

10 Before making any orders I am obliged to consider the matters in s 12 of the Act. The matters I regard as relevant are discussed below.

11 Benefits of the trees include their contribution to shade (s 12(b3)) and landscape value (s 12(e)) to both properties.

12 The species is very tolerant of root pruning (s 12(b2)).

13 The condition of other parts of the property indicates that tree roots are not the only cause of cracking and movement of concrete (s 12(h)(i)). It would be unreasonable for the respondent to pay for new stairs and pipes on the applicant's property when much of this work is required simply due to aging of the property. Therefore, those parts of the application that refer to replacement or repair of concrete steps, concrete slabs, concrete pathways and terracotta pipes are dismissed.

14 The applicant did submit sufficient evidence to show that a tree root between the WC wall and the steps has been a major cause of movement of that wall - the size of the gap; cracking of the wall; the visible root in the gap; and photographs from 2005 and 2007 showing there was no gap at that time.

15 Since 2008, however, when the applicant first brought the damage to the respondent's attention, the applicant has taken no steps to remove the root or to repair the damage (s 12(h)(ii)).

16 I consider it reasonable for existing roots, which may be contributing to damage, to be removed, although it would not be reasonable for the respondent to have an ongoing obligation for the removal of roots on the applicant's property.

Orders

17 Considering the foregoing, the orders of the Court are:

(1) The applicant is to engage and pay for a qualified (minimum AQF Level 3) horticulturist or arborist to cut at the boundary any roots coming from the neighbouring Weeping Fig trees. The roots are not to be poisoned. These works are to be completed within 30 days of the date of these orders.

(2) Within 30 days of the date of these orders, the applicant is to obtain and provide to the respondent two quotes to make good or repair the WC wall within one metre of the external doorway.

(3) Within 30 days of the date of these orders, the respondent is to obtain two quotes to make good or repair the WC wall within one metre of the external doorway.

(4) On reasonable notice and at a reasonable time of the day, the applicant is to provide access for the tradespeople or builders chosen by the respondent to quote on the works.

(5) The respondent is to select one of the four quotes from (2) and (3) and notify the applicant of her choice within 45 days of the date of these orders.

(6) The applicant is to engage and pay for the chosen tradesperson to carry out the works within 3 months of the date of these orders.

(7) The applicant is to provide the respondent with a copy of the paid invoice within one week of completion of the works.

(8) The respondent is to pay the applicant 50% of the invoice amount within two weeks of receipt of the paid invoice.

(9) If orders (6) and (7) are not complied with, order (8) lapses.

D Galwey

Acting Commissioner of the Court

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Decision last updated: 22 February 2012