Land and Environment Court New South Wales

• Medium Neutral Citation: Trifunovic v Adamopoulos [2012] NSWLEC 1071
• Hearing dates: 22 March 2012
• Decision date: 22 March 2012
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application to remove tree dismissed; orders made for apportionment of rectification costs

• Catchwords: TREES [NEIGHBOURS] Damage to property; injury to persons; factors contributing to damage
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592; Robson v Leischke [2008] NSWLEC 152; Barker v Kyriakides [2007] NSWLEC 292
• Category: Principal judgment
• Parties: Mr D Trifunovic (Applicant); Mr A Adamopoulos (Respondent)
• Representation: Applicant: Ms Z Stojanovic (Agent); Respondent: Mr A Adamopoulos (Litigant in person)
• File Number(s): 21173 of 2011

Judgment

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

1 COMMISSIONER:The owner of a property in Croydon seeks Court orders for the removal of a tree growing at the rear of the adjoining property.

2 The applicant contends that the tree's roots have caused damage to a brick barbecue and sections of a concrete driveway. He is concerned that the roots may, in the future, cause damage to the footings of his house and that they will continue to cause damage to the driveway. The applicant also maintains that leaves and seeds fall from the tree and accumulate in the guttering. He says that this leads to leaks in wet weather and is a potential fire hazard in dry weather. Due to the destabilisation of the barbecue and the damaged driveway, he is concerned that someone could be injured if the barbecue collapsed or if someone tripped on raised sections of the driveway.

3 The applicant is also claiming a sum of $8,477 in compensation comprising quotes for the removal of the tree ($2310), replacement of the driveway section ($4,740), application fees ($217), and an estimate to replace the barbecue ($1200). In regards to the application fees, Commissioners do not have the jurisdiction to award such costs.

4 The respondent has owned his property for about 10 years and values the tree as a healthy substantial and significant specimen that affords privacy between the parties' properties. He does not wish to remove the tree.

5 Mr Joe Lilley, Tree Management Officer from Burwood Council attended on behalf of council. He said that the tree is identified as a Norfolk Island Pine (Araucaria heterophylla) in the application but he says it is a Cook Pine (Araucaria columnaris); [the species are quite similar and easily confused]. The council's position is that the tree is a healthy and prominent specimen worthy of retention.

6 The hearing was held on site and commenced with an inspection of the tree from the respondent's property. It is a healthy mature specimen approximately 20m tall. Some lower branches have been removed from the side closest to the applicant's property. I saw no obvious structural defects.

7 The applicant's driveway adjoins the respondent's rear boundary. The brick barbecue is located beneath the tree, about 1-2m from the trunk. It is between the driveway and the dividing fence near the garage at the eastern end of the driveway. The applicant built it about 30 years ago. To the west of the barbecue is a garden bed approximately 1 metre wide between the fence and the driveway. There are a number of shrubs and two established grape vines, one of which has a substantial trunk and obvious woody roots.

8 The barbecue is on a lean and the two substantial concrete slabs on which it is built have been displaced. It did not appear to be in an imminent state of collapse. Large woody roots from the Araucaria can be seen behind the slabs. Another nearby large woody root is visible beneath the fence.

9 Several slabs of the driveway near the barbecue and the closest grapevine are lifted and others are cracked.

10 The applicant has owned his property for about 50 years and the driveway was there when he moved in. The tree was also there but much smaller.

11 In applications under Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act), the jurisdictional test in s 10(2) is critical. This states that the Court must not make an order under this Part unless it is satisfied that the tree the subject of the application has caused, is causing, or could in the near future cause, damage to property or could cause injury to any person.

12 As the applicant is concerned about future damage to the footings of the house, the guidance decision on the 'near future' published in Yang v Scerri [2007] NSWLEC 592 is relevant. In that case, the Court determined that the 'near future' should generally be a period of 12 months from the date of the hearing; I consider this time frame to be appropriate in this matter.

13 If any of the tests in s 10(2) are satisfied then s 9 of the Act enables the Court to make any order it thinks fit to remedy, restrain or prevent damage to property or injury to any person.

14 With respect to the barbecue and the closest uplifted section of the driveway, I am satisfied that the roots of the Araucaria have contributed to the damage. The large woody root behind the barbecue is growing against the concrete slabs on which the barbecue was built.

15 It is highly probable that the nearby uplifted slab of the driveway has been displaced by a root, as the Araucaria is the closest tree. The damage to the driveway further to the west could be caused by either the Araucaria and or the grapevine; there are large woody roots of the grapevine on the surface of the soil and directly in line with an uplifted slab. In Robson v Leischke [2008] NSWLEC 152 at [179] Preston CJ notes that the tree need only be a cause of damage to engage the jurisdiction. I am also satisfied that the lifted slab near the barbecue is displaced enough to create a tripping hazard and injury could result.

16 In regards to future damage to the footings of the dwelling, there is no evidence to suggest that this is likely to happen in the near future.

17 However as two of the tests in s 10(2) are satisfied, the Court has the jurisdiction to consider what, if any, orders it should make with respect to the driveway and the barbecue.

18 In regards to the falling of leaves and seeds, I saw no evidence of any damage caused by the debris. If I am wrong in this I consider the Tree Dispute Principle published in Barker v Kyriakides [2007] NSWLEC 292 to be relevant. Essentially, this principle states that the natural process of the shedding of leaves, fruit, twigs and so on by trees will not ordinarily lead to the making of orders for any intervention with a tree. It is considered that where trees are growing in urban environments, a degree of regular external housekeeping is expected. I am not satisifed that there are any exceptional circumstances that would lead me to depart from the principle. Therefore, no orders will be made for the removal of the tree on this basis.

19 Before making orders, the Court must consider a number of matters under s 12 of the Act. Relevant here are:

• the tree is located on the respondent's property close to the common boundary;
• the tree would otherwise be subject to Burwood Council's Tree Preservation Order - this includes the removal of roots;
• while the tree itself is not listed as a heritage item under Local Environmental Plan 19 under the Burwood Planning Scheme Ordinance, Mr Lilley informed the Court that the property in which it is growing is a component of the locally significant Ivanhoe Road Conservation Area - item No. 1.1.07 of Schedule 9 of LEP 19;
• the tree contributes to the amenity and scenic value of the property in which it is growing and as it can be seen in the broader locality, it has value to public amenity;
• Mr Lilley considers the tree is of value to local birds and therefore contributes to biodiversity;
• the age and condition of the driveway are relevant - over 50 years old with extensive signs of wear and tear for its full length;
• as previously stated, there is an established grapevine with obvious surface woody roots close to a lifted section of the driveway;
• the applicant built the barbecue under the tree, although the tree would have been much smaller it would have been well established at the time;
• the applicant has been pruning the roots for more than ten years and before the respondent owner the tree and has been aware of the damage for at least five years; and
• the respondent allowed the applicant to prune branches but says he was unaware of the root problems until late last year.

20 After considering the evidence and the discretionary considerations in s 12, I do not think the removal of the tree is justified. It is a healthy and significant tree, however, there does need to be some repair of the applicant's property, which will necessitate some removal of roots. Because of the risk of destabilising the tree, the root pruning must be carried out strictly in accordance with this judgment and orders.

21 The applicant stated that he was not concerned about keeping the barbecue but I consider there are legitimate costs involved in its demolition and in removing the rubbish.

22 The respondent's position is that as he has owned the tree for about 20% of its life, and therefore he should not contribute any more than 20% of any costs associated with the barbecue or driveway. Given the fact that the applicant has been aware of the issue for a long time, I consider this to be a reasonable apportionment of any costs. Similarly, the age of both the driveway and the barbecue must be taken into account.

23 The applicant obtained a quote for the removal and replacement of various sections of the driveway. The section said to be damaged by the tree, and separately itemised in the quote, is a length of 8m from the garage and 3.3 m wide (effectively from the edge of the driveway to the house). The quote for this section is $4,750. I am not satisfied that all of this section has been damaged by the tree; at most, I consider that the tree has contributed to 50% of the damage. Based on the quote this would be worth $2,375. Twenty percent of this is $475. I consider it reasonable for the respondent to make a further contribution of $100 towards the demolition and removal of the barbecue.

24 Before the existing driveway is removed and replaced, the brick hob that forms the edge of the driveway and garden bed is to be removed by hand. A clean cut to a depth of 250mm is to be made at the driveway edge of the hob to cleanly sever any roots ( a concrete cutter or similar could be used). No roots are to be removed, nor is any excavation permitted, from within the garden bed or from beneath the old barbecue. Once the roots are cut, the driveway can be removed mechanically. There is to be no excavation of the driveway below 250mm.

25 As a consequence, the Orders of the Court are:

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

(2) Within 90 days of the date of these orders, the brick barbecue is to be demolished and the section of driveway 8m to the west of the garage is to be removed and replaced. Prior to this, the brick hob along the southern edge of the driveway is to be removed by hand and a clean cut made to a maximum depth of 250mm is to be made along the edge of the concrete driveway.

(3) There is to be no excavation or removal of roots within the garden bed to the south or beneath the barbecue. The depth of any excavation in the driveway is limited to a maximum depth of 250mm.

(4) Within 21 days of the receipt of a tax invoice for the completed works in Order 2, the respondent is to reimburse the applicant the sum of $575.00.

___________________________

J Fakes

Commissioner of the Court

Decision last updated: 23 March 2012