Land and Environment Court New South Wales

• Medium Neutral Citation: Walker v Algie & anor [2012] NSWLEC 1185
• Hearing dates: 10 July 2012
• Decision date: 10 July 2012
• Jurisdiction: Class 2
• Before: Galwey AC

Decision

Application upheld in part.

Tree to be removed at the respondents' expense.

Respondents to carry out repair works to applicant's property.

Applicant to provide access for works.

Cost of repair works to be divided between the parties.

• Catchwords: TREES [NEIGHBOURS] Damage to property; risk of injury; removal ordered; repairs to applicant's property; compensation ordered.
• Legislation Cited: Dividing Fences Act 1991; Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Timmins v Park [2011] NSWLEC 1308
• Category: Principal judgment
• Parties: Mrs Irene Walker (Applicant); Mr James Algie and Mrs Jennifer Algie (Respondents)
• Representation: Ms Linda Walker (Daughter, agent for the applicant); Mr James Algie and Mrs Jennifer Algie (Respondents in person)
• File Number(s): 20387 of 2012

Judgment

1 COMMISSIONER: A Hills Weeping Fig grows in the front garden of the Algies' property in a quiet suburban street in Keiraville. It is less than 30 cm from the fence along the common boundary with their neighbour, Mrs Walker. Mrs Walker is concerned that roots from the tree have damaged her driveway and outdoor tiled, paved and concreted areas. She is also concerned that roots may damage her dwelling. She has applied to the Court under the Trees (Disputes Between Neighbours Act) 2006 to have roots removed, damage on her property repaired and for the tree to be removed if that is necessary to prevent further damage. She sought orders for a limb to be removed from the tree but that those works have been done. She also seeks costs of reports - an arborist report and an engineering report. Commissioners do not have the power to award costs so that would require a Notice of Motion to be heard by a Judge.

2 The Algies concede that roots from their tree have caused damage. They wish to prevent further damage and are willing to pay for repairs of damage caused by roots of their tree, to a reasonable extent, based on their view that they were only notified in November 2011 of any root issues (although Mrs Walker's view is that they were notified three years ago).

3 The court must determine the following:

• Has the tree caused damage to Mrs Walker's property?
• What is the cost of repairing the damage?
• How should that cost be apportioned?
• What is required to prevent further damage?

Onsite hearing

4 At the onsite hearing Mrs Walker showed us the damage to her property that she says has been caused by the tree, consisting of:

• cracking and lifting of the driveway;
• cracking and lifting of concrete in front of the garage;
• uneven paving and tiling around the dwelling;
• displacement of outdoor steps and the balcony (although repair of same is not part of the claim); and
• displacement of the fence.

5 Roots could be seen adjacent to these areas of damage and it was evident on inspection that those roots are from the fig tree. There was no dispute about this. The Algies agree that some damage is caused by these roots but point out that other paved and concreted areas around the property have deteriorated, as would be expected of a property of this age. Concrete pathways at the front of Mrs Walker's house, well outside the influence of the fig tree's roots, were also uneven.

6 The tree is perhaps 30 years old. It has six stems, each of 30 to 40 cm diameter. It is in good health and has a slightly uneven canopy due to past pruning.

7 The issue of pruning works that have been carried out was raised. The respondents were concerned that over-pruning may have made the tree unsafe. I informed them of my assessment that the tree has not been made unsafe from the pruning and that we would proceed on that basis.

8 The respondents also pointed out that the fence had been displaced further along by a tree on the applicant's land.

9 Mrs Walker has obtained a quote for $16,000 to repair the damage that has occurred to her property. The Algies obtained quotes for removing roots and repairing the damage, totalling $8,360.

History

10 The Algies have lived at their property for five years. Although the tree was clearly present before that, most of the damage appears to have occurred during the last five years. Mrs Walker has owned and lived in her dwelling since 1966; her house was built in 1965.

11 Mrs Walker submits that she informed the Algies three years ago of root issues. The Algies say she informed them of her issues regarding limbs then, but that the first they heard of root problems was in November 2011.

Has the tree caused damage to Mrs Walker's property?

12 There is no doubt that the tree has damaged Mrs Walker's property, satisfying the test at s 10(2)(a) of the Act and enlivening the Court's jurisdiction.

What is the cost of repairing the damage?

13 The Algies expressed concern regarding the sum of Mrs Walker's quotes for repairs, saying they seem excessive. They have obtained their own detailed quotes that include removal of roots within Mrs Walker's property and repair of the damage. Those quotes total $8,360. Mrs Walker stated that she is satisfied with those quotes and would be happy for the Algies to engage those contractors to carry out the works. The Algies are willing to be responsible for engaging contractors to do the works. Some of the quotes may now have lapsed and may require confirmation. One quote included changing some paved area to garden bed, but Mrs Walker would like the paving reinstated and a new quote will be required to reflect that.

How should that cost be apportioned?

14 The damage has predominantly occurred during the last five years, during the period of the Algies' ownership of their property and the tree. If the Algies had been told three years ago about the damage, and had taken action, there may be less damage but there would still be some damage (s 12(h)(ii)).

15 The condition of other outdoor surfaces around Mrs Walker's dwelling has deteriorated somewhat (s 12(h)(i)). When repair works are done the applicant will have outdoor surfaces in better condition than before. In Timmins v Park [2011] NSWLEC 1308, Pearson C considered the age and construction method of a concrete pathway at [33] and was...

... not persuaded that it is reasonable for the respondent to be required to pay for what would, on the specifications provided, be a significant upgrading of the pathway were the work itemised in the quotation be undertaken.

Consequently, the costs of works in that matter were apportioned between the parties as the Commissioner determined with discretion.

16 Considering all of the matters outlined above, it seems reasonable to me to apportion 50% of the cost of repairs to each party.

What is required to prevent further damage?

17 To repair the damage and to prevent further damage will require cutting of large roots at the base of the tree. This would leave the tree prone to root failure (regardless of recent pruning), which could result in the entire tree falling. Such a situation is clearly unacceptable. Therefore the tree needs to be removed. Mrs Walker has done nothing to contribute to the need for tree removal and, as there are no other circumstances that would suggest otherwise, tree removal would be at the Algies' expense.

18 Although the respondents pointed out that a small tree on Mrs Walker's land is pushing the same boundary fence out of alignment, they concede this is minor. No orders are being sought under the Dividing Fences Act 1991 and, apart from reinstatement of the fencing panels displaced by the fig tree, I will not be making any orders for fencing works.

Orders

19 Considering all of the above the orders of the Court are:

(1) The application is upheld in part.

(2) The respondents are to engage and pay for a suitably qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the fig tree and to grind its stump. Any remaining roots or stump are to have poison applied immediately to the cut surface. The arborist is to remove panels of the fence as necessary and to replace those panels afterwards, if possible reinstating them to their proper alignment. These works are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. The respondents are responsible for proper reinstatement of the fence panels if the arborist is unable to do this.

(3) The works in (2) are to be completed within 30 days of the date of these orders.

(4) The applicant is to provide all necessary access for the works in (2), on reasonable notice, during reasonable hours of the day.

(5) The respondents are to confirm the following quotes or get new quotes for the same works described in the following quotes.

(a) Treecycling tree services (16/5/12)

Grinding of roots on the applicant's property

$275

(b) Michael Lanyon Landscaping (15/3/12)

To repair paving

The price was not quantified in the quote because they quoted for alternative works, which the applicant doesn't want. The quote for reinstating the paving will need to be confirmed (that price is no longer subject to arborist advice).

(c) Surfside Concreting (10/6/12)

For repairs to tiled surfaces

$5,610

(d) J Szabo

Tiling

$1,900

(6) Within 30 days of the date of these orders the respondents are to supply copies of the final quotes to the applicant.

(7) Within 40 days of the date of these orders the applicant is to provide the respondents with details of the period within which it would be suitable for the works to be carried out. Such period must be within 90 days of the date of the orders.

(8) Within 90 days of the date of these orders the respondents are to engage the contractors to carry out all works in the quotes outlined in (5).

(9) The applicant is to provide all access during reasonable hours of the day, on reasonable notice, for the works in (8) to be carried out.

(10) The respondents are to provide the applicant with all receipted invoices for the works in (8) within 120 days of the date of these orders.

(11) The applicant is to pay the respondent 50% of the total of the invoices in (10) within 30 days of receiving them.

(12) If receipted invoices in (10) are not received within 120 days of the date of these orders, order (11) lapses.

__________________________

D Galwey

Acting Commissioner of the Court

Decision last updated: 13 July 2012