Land and Environment Court of New South Wales CITATION : Langley v Little [2007] NSWLEC 784 APPLICANT B and J Langley PARTIES : RESPONDENT R and A Little FILE NUMBER(S) : 20771 of 2007 CORAM: Thyer AC KEY ISSUES: Trees (Neighbours) :- removal of trees, damage to property LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 19/11/2007 DATE OF JUDGMENT: 26 November 2007 APPLICANT B and J Langley, litigant in person LEGAL REPRESENTATIVES: RESPONDENT R and A Little, litigant in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 26 November 2007 20771 of 2007 B and J Langley v R and A Little JUDGMENT This decision was given in chambers. 1 Acting Commissioner: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning 16 trees (the trees) situated on 82 Hibbard Drive (the property). The property is owned by Ronald and Adele Little. 2 The trees are: 8 x Cocos palms (Arecastrum romanzoffianum) 1 x dead Fig tree 3 x Fig trees (possibly Ficus benjamina ) 4 x Cypress trees. ( Cupressus sp ) 3 I note that additional fig trees were mentioned in the Arborist's report, and that these were located on the property beside the driveway of 80A Hibbard Drive. I am advised and have observed that those trees have been removed. 4 The application has been made by Brian and Judy Langley, owners of 80A Hibbard Drive, the adjoining property to the east of the trees. 5 The application seeks orders from the Court that the trees be removed and that 27 sq m of damaged driveway be replaced at a cost of $3,476 to the Littles. 6 The relevant provisions of s 10(2) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree. 7 These tests are: Has the tree caused damage to the applicant's property? Is the tree now causing damage to the applicant's property? Is the tree likely in the near future to cause damage to the applicant's property? Is the tree likely to cause injury to any person? 8 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 9 At the On-Site Hearing of 30 October 2007, I examined the trees and the nearby areas of both the Langleys' property and the Littles' property, and considered the information provided by the parties. 10 The trees are growing in a line beside the common boundary, from adjacent the Littles' house to the waters edge at the northern end of the property. 11 The eight Cocos palms have dropped fronds and seeds onto the Langleys' driveway and property in the past, and are likely to do so in the future. Mr Langley advised that members of his family, and visitors walk on the driveway. 12 I accept that when the round Cocos palm seeds are on a paved walkway they do present a slip hazard for pedestrians. Such a situation might usually be managed by regular sweeping, but the large number of seeds from these eight trees make it difficult to avoid that hazard. I am satisfied on this basis that the Cocos palms are likely to cause injury to a person and therefore the jurisdiction of the Court is enlivened in accordance with s 10(2)(b) of the Act. 13 The Littles stated that they wish to retain the Cocos palms. I consider that if the Littles were to manage the hazard by removal of seed clusters before they fall, the Court would have no reason to order removal of the palms. 14 The parties agreed at the hearing that they have no concerns that the Cocos palms might damage the driveway, pipes or services. 15 The Fig tree close to the rear of the Littles' house is dead. The Littles advised that they killed this tree, and are willing to remove it. I am satisfied that this tree has caused damage to the Langleys' driveway, lifting the edge of one slab approximately 40 mm and therefore enlivening the jurisdiction of the Court (s 10(2)(a) – first test – past damage) and (s 10(2)(b) – likely injury). 16 Mr Langley fears that the four Cypress trees are likely to cause damage to his driveway, pipes and services. I have not seen any evidence that the Cypress trees have large roots close to the driveway, pipes or services, and therefore am not satisfied that such damage is likely in the near future. I do however agree that pruning of the Cypress tree roots at the boundary should avoid any future damage, and largely remove Mr Langley's fears in this regard. 17 I note that the Littles provided a plan of the Langleys' property from the development stage, showing the driveway to be further from the trees. I have not been provided with any evidence that the plan is the Council approved plan for the Langleys' development. However, I accept Mr Langley's advice that the Local Council inspected the driveway as built prior to issue of the occupation certificate for his house. I therefore do not consider that the Littles' responsibility to avoid damage to the driveway is reduced by location of the driveway near the common boundary. 18 The parties agreed at the hearing that the three fig trees near the northern end of the property are not likely to cause damage in the near future. 19 Regarding the Langleys' claim for repair of damage to the driveway, I am satisfied as noted above that the Littles' Fig tree caused the 40 mm lift of the sixth slab from the Hibbard Drive entrance, near the northern side of the garage belonging to 80A Hibbard Drive. I am therefore satisfied that the Court should order the repair of that damage at the Littles' cost if the parties cannot reach an agreement on such repair. 20 I am not satisfied that the small differences of height between the driveway slabs near the entrance from Hibbard Drive were caused by trees on the Littles' property. Also, I am not satisfied that the damage is sufficiently serious for the Court to order any repair or compensation. 21 I note that the matters in contention had some years of history, and at the hearing the parties discussed past, present and possible future problems. 22 I also note that the parties expressed a willingness to find agreed solutions, and accepted considerable compromise of their positions. 23 The hearing of 30 October 2007 was adjourned after general agreement had been reached between the parties on management and costs in relation to the trees, and the extent of repair and who should pay in relation to the driveway. 24 The principal outstanding matter was agreement on the cost of the driveway repair, though there was agreement that repair should be capped at $1,650 being the amount of a quotation provided verbally by the Langleys' contractor. 25 A draft agreement was provided to the parties by the Court, and a telephone callover set should the parties not accept the draft agreement or not agree on the cost of the driveway repair. 26 The Littles provided to the Court in writing prior to the callover, a copy of a cheaper quotation of $1,450 for repair of the driveway. They did not advise the Court that the draft agreement was in any way unacceptable. 27 The Littles took part in the telephone callover on 19 November 2007. 28 The Langleys did not provide any written or other communication to the Court prior to the telephone callover, and did not take part in the telephone callover on 19 November 2007. 29 I have assumed that the Langleys were accepting of the draft agreement, and aware and accepting of the cheaper quotation for driveway repair. 30 On this basis, I dismiss the application, noting the following agreement between the parties: 1. All the Cocos palms growing on 82 Hibbard Drive adjacent the common boundary with 80 Hibbard Drive shall have the seeds and dead fronds pruned off at least once per year to avoid seeds and fronds falling onto 80 Hibbard Drive. Seeds and fronds that fall onto 80 Hibbard Drive during pruning are to be removed. The pruning and clean up is to be at the Littles' cost. 2. The dead Fig tree located near the rear of the Littles' house is to be removed within 90 days of these orders, at the Littles' cost. 3. A trench shall be dug beside the Cypress trees, to prune the roots of those trees to a depth of 0.5 m and for a length of approximately 8 m extending 2 m beyond both ends of the row of Cypress trees. The trench shall be dug on the 80 Hibbard Drive side of the dividing fence, on the Littles' side of the boundary line as far as reasonably possible. The trench shall be dug, soil levels made good and the area cleaned up (but not including shrub and vine replacement) within 90 days of these orders, at the Littles' cost. 4. The Fig trees adjacent the common boundary with 80 Hibbard Drive near the river, are to remain as they are agreed to be unlikely to cause damage in the near future. Mr Langley is to advise the Littles as soon as possible if damage occurs to his property, and to provide an engineer's report on the cause of the damage if so requested at that time by the Littles. 5. A portion of the driveway to 80 Hibbard Drive, being the northern 2 metres of the sixth slab from the entrance (the slab largely adjoining the concrete apron to the garage of 80a Hibbard Drive) shall be cut, removed and replaced. The work shall meet standard residential driveway specification, with a pebblecrete surface to match the existing as far as reasonably possible, and finished to match surrounding levels of the driveway. The work shall be carried out by a licensed concreting contractor agreed to by Mr Langley. The work shall be completed within 90 days of these orders. The Littles are to pay to Mr Langley the amount of $1,450 or such lesser amount as shown on the receipt, within 30 days of being given a copy of the contractor's receipt for full payment of the completed work. ___________________ Peter Thyer Acting Commissioner of the Court 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.