Land and Environment Court New South Wales Medium Neutral Citation: Tsai v Pacca [2022] NSWLEC 1092 Hearing dates: 16 February 2022 Date of orders: 16 February 2022 Decision date: 16 February 2022 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders: (1) The application is granted to the extent of the orders below. (2) Within 60 days of the date of these orders, but not before the end of February 2022, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to remove the cypress tree near the northwest corner of their property and grind out its stump. If at the time of these works all paving material and concrete edging has been removed on the applicant's property within 5 metres of the tree, the respondents are to pay for the contracted arborist to also grind out all surface roots within 4 metres of the tree. The works are to be done in accordance with the guidelines of the Safe Work Australia 2016 'Guide to managing risks of tree trimming and removal work'. (3) The respondents are to give the applicant 7 days' notice of the works ordered above. (4) The applicant is to allow any access required to complete the works ordered above during reasonable hours of the day. (5) Within 90 days of the date of these orders the respondents are to plant another tree in accordance with Condition 3 'Replacement Planting' of Ku-ring-gai Council's Tree Permit for Application No. RMTR20/04933 (see Annexure A). (6) If within 6 months of the date of these orders the applicant provides the respondents with a receipted paid invoice for repairs to his front path, the respondents are to pay, within 7 days of receiving the invoice, $1,000 to the applicant, or 50% of the invoice amount if the invoice total is less than $2,000. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – damage caused by neighbouring tree – parties agree on removing the tree – parties dispute who should organise and pay for property repair adopting a nuisance – orders for tree removal and root grinding – orders for compensation Legislation Cited: Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 6(3), 7, 9, 10, 12 Texts Cited: Safe Work Australia 'Guide to managing risks of tree trimming and removal work' (July 2016) Category: Principal judgment Parties: Hsiu-Yin Tsai (Applicant) Ottorino Pacca (First Respondent) Catherine Hislop (Second Respondent) Representation: H Tsai (Litigant in Person) (Applicant) O Pacca (Litigant in Person) (First Respondent) C Hislop (Litigant in Person) (Second Respondent) File Number(s): 2021/313263 Publication restriction: No Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background to the application 1. COMMISSIONER: This dispute between neighbours in Gordon has been partly resolved by the parties. Ottorino Pacca and Catherine Hislop ('the respondents') have agreed to remove a tree that has damaged the path on neighbouring land belonging to Hsiu-Yin Tsai ('the applicant'). They have been unable to agree on who should organise and pay for repairing the path. Mr Tsai has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for: the tree's removal; the removal of the tree's roots within his land; and for the respondents to pay for repairs to his property. 2. At the hearing I gave leave for the application to be amended so as to include both Mr Pacca and Ms Hislop as respondents, as they both own their property. In the original application Mr Pacca was listed as the only respondent. It is essential that all property owners are included as respondents, as any orders will affect all owners of the respondents' property. Framework for this decision 1. Before making orders in applications under Pt 2 of the Trees Act, the Court must be satisfied that the applicant has made reasonable effort to reach agreement with the tree's owner (s 10(1)(a) of the Trees Act). The Court must also be satisfied, at s 10(2), that the tree 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 a person. The Court must consider a range of matters at s 12 of the Trees Act before making any orders at s 9. 2. The hearing took place onsite; the parties were self-represented. Reasonable effort to reach agreement 1. Mr Tsai spoke with Ms Hislop and Mr Pacca seeking to resolve the issue of property damage caused by their tree. He arranged mediation for the parties to attend. Although Mr Pacca submitted that Mr Tsai's efforts were not reasonable because he had not accepted a reasonable offer from the respondents, I find that Mr Tsai's efforts were reasonable, even if his opinion on an appropriate outcome remained different to the respondents' opinion. The tree has caused damage to the applicant's property 1. It is evident to anyone walking along the footpath that the respondents' tree has damaged the applicant's property. Their mature Golden Hinoki Cypress (Chamaecyparis obtusa 'Crippsii') is adjacent to the common boundary near the front boundary of these properties. A paved brick path providing the main access to Mr Tsai's dwelling is adjacent to the common boundary. The path elsewhere is in relatively good condition, whereas all paving within a few metres of the tree is raised and uneven, creating a trip hazard. Large surface roots from the cypress continue in the lawn on the other side of the path. The cause of the path's condition near the tree is undoubtedly the growth of large woody roots directly beneath the pavers. Matters to consider before making orders 1. Mr Tsai brought the issue to the respondents' attention in September 2020. Soon after, Mr Pacca applied to Ku-ring-gai Council to remove all roots causing damage. Council's tree officer assessed the situation and advised that removing all those roots would leave the tree unviable. Council issued a permit to remove the tree. Mr Pacca obtained a quote to remove the tree and to grind out its stump and roots. He did not carry out the work because the parties could not agree on who should be responsible for repair works to Mr Tsai's property. 2. Mr Tsai wants the respondents to pay for all repair works, arguing that the damage is all caused by their tree. He obtained a quote for $16,431 to repair the path and an adjacent area of different paving material that he says has also been lifted by tree roots. He wants the respondents to organise and pay for these works. 3. Mr Pacca and Ms Hislop argued that the tree was already there when they came to their property two decades ago. Mr Tsai has owned his property for three decades, so they have all come to this situation without their actions directly contributing to damage. The respondents argued that they have not made the situation worse; that they will bear the cost of removing the tree and its roots, so Mr Tsai should bear the cost of repairing his property. 4. The respondents submitted that Mr Tsai's quote for repairing the paved path is excessive. They obtained informal quotes for much less and suggested the works could be done for approximately $1,500. They said they cannot be responsible for engaging a contractor and therefore bearing an ongoing liability for works on the applicant's property Findings 1. It is clear the tree must be removed to repair the damage it has caused and to prevent further damage. 2. The respondents opine that, although the tree has caused damage, their own actions have not contributed to the damage. However, in my mind they have adopted a nuisance, and one that was easily seen from within their front property and from the footpath. They cannot have been unaware of the situation. 3. There are other factors to consider in determining the nature of any orders for repair works and compensation. * The tree has benefited both properties with shade and cooling, and contributes to amenity. * The respondents were required to keep the tree as part of their development consent approximately five years ago. * The respondents will bear the cost of removing the tree and its roots. * Mr Tsai is correct in saying the damage is principally due to the tree, but the path has been uneven for many years and he only brought it to the respondents' attention in September 2020 (there may have been a conversation some time earlier but this is not reported in the application). Had he raised the issue earlier, the extent of works required to repair the path would have been significantly less. * The respondents took action promptly after September 2020. 1. Clearly the respondents should contribute to the repair costs, but there is no mathematical formula for calculating apportionment of repair costs in this matter. I use the following reasoning for reaching appropriate apportionment: * The quote obtained by Mr Tsai seems excessive for the extent of works required. * The respondents' estimate of $1,500 for the works, based on informal quotes they obtained, seems more realistic, but I would allow some extra for concrete edging and the like, and estimate a total of $2,000. * I cannot be satisfied that the additional paved area adjacent to the path has been damaged by tree roots, so would not include it in considering apportionment. 1. As per the respondents' earlier offer to the applicant, a 50/50 split of the costs seems reasonable, considering that the respondents' tree has caused the damage, that the applicant only recently took reasonable action to bring it to their attention, that the respondents took prompt action, and that the respondents will bear the cost of tree removal. 2. Orders should be shaped so as to reduce the potential for any ongoing dispute, so the applicant will be responsible for carrying out repair works. Orders are not required for that, as he can carry out the works as he sees fit, however the orders must consider timing of possible works. Tree removal is not to occur within two weeks of these orders, allowing Mr Tsai time to remove his pavers should he wish the roots on his land to be ground out by the respondents' contractor. 3. Apportionment will be capped, rather than a percentage of any further quotes, to avoid the need for further quotes and negotiation between the parties, and to provide a simple and clear resolution. 4. Ku-ring-gai Council's permit for tree removal included a condition for replanting. To maintain local amenity and tree canopy cover, an order for replanting is included below. 5. Compensation should only be required if Mr Tsai pays for completed repair works. 6. The respondents' permit for tree removal has expired. I informed them that they are not required to obtain another permit due to the orders below along with s 6(3) of the Trees Act. Orders 1. As a result of the above, the Court orders: 1. The application is granted to the extent of the orders below. 2. Within 60 days of the date of these orders, but not before the end of February 2022, the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with all appropriate insurances to remove the cypress tree near the northwest corner of their property and grind out its stump. If at the time of these works all paving material and concrete edging has been removed on the applicant's property within 5 metres of the tree, the respondents are to pay for the contracted arborist to also grind out all surface roots within 4 metres of the tree. The works are to be done in accordance with the guidelines of the Safe Work Australia 2016 'Guide to managing risks of tree trimming and removal work'. 3. The respondents are to give the applicant 7 days' notice of the works ordered above. 4. The applicant is to allow any access required to complete the works ordered above during reasonable hours of the day. 5. Within 90 days of the date of these orders the respondents are to plant another tree in accordance with Condition 3 'Replacement Planting' of Ku-ring-gai Council's Tree Permit for Application No. RMTR20/04933 (see Annexure A). 6. If within 6 months of the date of these orders the applicant provides the respondents with a receipted paid invoice for repairs to his front path, the respondents are to pay, within 7 days of receiving the invoice, $1,000 to the applicant, or 50% of the invoice amount if the invoice total is less than $2,000. ………………………………. D Galwey Acting Commissioner of the Court Annexure A (1911412, pdf) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2022