Land and Environment Court of New South Wales CITATION : Wright v Adamski [2007] NSWLEC 787 APPLICANT Joseph Wright and Doreen Wright PARTIES : RESPONDENT Gregory John Adamski and Terese Danuta Adamski FILE NUMBER(S) : 20857 of 2007 CORAM: Thyer AC KEY ISSUES: Neighbour Application :- removal of a tree, damages, costs LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 20/11/2007 EX TEMPORE JUDGMENT DATE : 20 November 2007 APPLICANT Mr P. Welch, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr G. and Mrs T Adamski, litigants in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 20 November 2007 20857 of 2007 J & D Wright v G & T Adamski JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy of the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 Acting Commissioner: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning one tree (the tree) situated at 23A Ramah Avenue Mount Ousley (the property). The property is owned by Gregory and Therese Adamski. 2 The tree is a Jacaranda (Jacaranda mimosifolia). 3 The application has been made by Joseph and Doreen Wright, owners of 23 Ramah Avenue, the adjoining property to the east of the tree. 4 The application seeks orders from the Court that : a. The tree be removed at the Adamskis' cost; b. Compensation be made for damage to Mr & Mrs Wright's property; c. Costs and outgoings involved in the preparation of the application and previous attempts to remedy the situation since 2004 be paid to the Wrights by the Adamskis. 5 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. 6 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? 7 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? 8 I have examined the Jacaranda tree with assistance at the hearing by Mr Varley, author of the tree assessment report included in the application. 9 I have reached the following conclusions with respect to the tree. It is a small tree 8 to 10 m in height, 6 to 7 m in width, with a single trunk of approximately 0.35 m diameter at 1.2 m above ground. The tree is located approximately 1.5 m from the north-western corner of the Wright's house. The tree is a mature specimen in poor condition. The tree has serious insect damage and decay in the trunk, less than one quarter of the canopy is alive, and a large dead branch overhangs the Wrights' house. I observed two large roots of approximately 0.3 m width extending from the base of the tree into the Wright's property. I also observed one root of approximately 40 mm diameter outside the northern end of the external western wall of the Wright's house, at a depth of approximately 100 mm. 10 I am satisfied that the likelihood of a dead branch falling on the Wright's house in the near future presents sufficient risk of damage to satisfy the test in s 10(2)(a) of the Act. 11 I am also satisfied that the tree does not make a significant contribution to public amenity, and that its health and structure cannot be improved sufficiently to do so. 12 I have considered the reports provided by the Wrights in their application, and note the benefit to the Court in having Mr xxx and Mr Welham, the respective authors of the boundary survey and the geotechnical report present at the hearing. 13 I am satisfied that the survey of the common boundary identifies the tree as being on the Adamskis' property. The survey plan and a survey mark nailed into an exposed root on the eastern side of the tree clearly show that the whole of the base of the tree trunk is within the Adamskis' property. I am also satisfied that the survey was necessary to answer the Adamskis' contentions that the tree is on the common boundary, and therefore has shared ownership. 14 In company with the parties, Mr Varley and Mr Welham, I inspected the areas of claimed damage under the Wrights' house. 15 In the north-western corner, close to the tree, I observed a tree root between the concrete perimeter strip footing and the northern panel of the western, internal, sub-floor brick wall of the Wrights' house. The wall above the root was lifted approximately 50 mm, and most of the mortar joints in that panel of the wall had failed. That panel of single brick wall is approximately 1.5 m long by 0.6 m high. The first attached pier to the south seemed to be at the correct height but has narrow cracks in the mortar joints. The corner pier seemed to be intact. 16 I am satisfied that a root of the tree has caused the damage to this wall and the attached pier on its southern end. This damage satisfies the test in s 10(2)(a) of the Act, of damage caused by the tree. 17 I did not observe any other building damage likely to have been caused by the tree. 18 I believe that the parties benefited from questioning Mr Welham in relation to possible causes of ground movement and possible damage to brick walls and piers under the Wrights' house. 19 I am aware that the bricklayer's quotation submitted by the Wrights includes repairs to three freestanding piers and underpinning of two wing-walIs. However, I did not observe any damage to free-standing piers or wing-walls under the house, that damage was not mentioned in any building report, and I have not been persuaded that the Adamskis have any responsibility for any proposed works to those items. 20 In relation to avoidance of further damage, I determine that the Adamskis shall remove the Jacaranda tree by 20 December 2007 at their own cost. The tree shall be cut to within 50 mm of ground level. The tree may be removed without application to Council. The tree removal shall be done by a suitably skilled person holding suitable insurances. The Wrights shall permit access to their property for the purposes of the tree removal and clean up, provided that this access is on reasonable notice and at a reasonable time, and the Wrights are permitted to supervise any such access if they wish. 21 In relation to rectification of damage, I determine that the Wrights shall obtain two independent quotations to rebuild the northern panel of the western internal brick wall of their house, and the attached pier on the southern end of that panel. The quotations shall be from contractors named by the local Master Builders Association as being skilled tradesmen charging reasonable rates. The Wrights shall provide the quotations to the Adamskis by 20 December 2007. The Wrights shall choose which contractor they wish to carry out the work, and have the work completed by 31 March 2008. The Wrights shall provide a copy of the receipt of payment for the completed works to the Adamskis within 30 days of completion of the works. Within 30 days of being provided with a copy of the receipt of payment for the completed works, the Adamskis shall pay the amount of the lesser of the two quotations to the Wrights. 22 In relation to claims for costs of personal time, I advise that a Commissioner of the Court cannot award such costs. 23 In relation to claims for legal costs, I advise that Commissioners who deal with applications under the Act are not authorised to decide applications for legal costs. Applications for legal costs must be made by a separate Notice of Motion, after the matter has been decided by a Commissioner. 24 In relation to the Wrights' claim for compensation for the cost of technical reports, I find that each of the reports have been necessary to the progression of the matter, and have been helpful to my understanding of the matter. I note that most of the Wrights' claims have been ignored or disputed by the Adamskis for a number of years, and that the reports have been useful to resolve the matters in dispute. I expect that some of the reports would not have been necessary if the Adamskis had been willing to constructively resolve the matters earlier. 25 I therefore determine that the Adamskis should pay the cost of the four reports: Structural Engineer $ 180.00 Boundary Survey $ 385.00 Tree reports $ 719.00 Geotechnical $ 643.50 and that the total of $1,927.50 for the reports shall be paid by the Adamskis to the Wrights by 31 March 2008. 26 As a consequence, the application is partly upheld and the orders of the Court will reflect the determinations stated above. ___________________ 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.