Zangari v Miller [2010] NSWLEC 1012

Land and Environment Court of New South Wales

CITATION : Zangari v Miller [2010] NSWLEC 1012

APPLICANTS Vince and Katherine Zangari PARTIES : RESPONDENTS Craig and Kerry Miller

FILE NUMBER(S) : 20822 of 2009

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property, Compensation

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Yang v Scerri [2007] NSWLEC 592 Barker v Kyriakides [2007] NSWLEC 292

DATES OF HEARING: 19/01/2010

DATE OF JUDGMENT: 19 January 2010

EX TEMPORE JUDGMENT DATE : 19 January 2010

APPLICANT Vince and Katherine Zangari (litigants in person) LEGAL REPRESENTATIVES:

RESPONDENT Craig and Kerry Miller (litigants in person)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Fakes C

19 January 2010

20822 of 2009 Vince and Katherine Zangari v Craig and Kerry Miller

JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 COMMISSIONER: This is an application pursuant to s7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Zangari of 72 Beronga Avenue Hurstville against the owners of a Liquidambar growing in the rear north-eastern corner of 74 Beronga Avenue. The owners of that property are Mr and Mrs Miller. 2 The applicants are seeking the removal of the tree, at the owners' expense, as they contend that the tree has caused damage to a section of the concrete paved pool surround and that it may cause further damage to their property in the future. 3 They are also seeking compensation of a sum of approximately $7,599, $6,726.50 of which is a quote for the removal and replacement of the entire paved pool surround. The claim for compensation for replacement of the entire paved area is made on the basis that it is not possible to match the colour should only a small area be replaced. There is an unspecified amount for the cost of an arborist's report and a structural engineer's report. It should be noted at this stage that as the onus is on the applicants to prove the connection between the problem and the tree, these costs are deemed to be part of that responsibility. Therefore, compensation for those components of the claim is refused. 4 The tree was inspected from both properties. It is a mature Liquidambar planted in December 1985 in memory of the passing of Mrs Miller's mother. Hence the tree has personal value to the respondents. It is about 1m from both the northern and eastern boundary fences. And is approximately 35-40cm in diameter at breast height. Several branches have been inexpertly cut to the fence-line with the applicants. This has been done at various times by both the respondents' son and by Mr Zangari. This was apparently done to limit the falling of leaves and fruit into the applicants' pool. This was another issue raised in the applicants' submissions. 5 The tree appeared healthy and there were no obvious structural defects. 6 The pool surround was inspected. A section of concrete about 1.5m square in the north-western corner of the applicants' property is the main subject of this application. The pool and its surrounds cover the rear of the applicants' backyard. The paved surround extends to the boundary fences on three sides. 7 The respondents have lived in their house for over 25 years and the pool at 72 Beronga Avenue was in existence at that time. The edge of the pool itself is brick, and according to both parties, the previous owners had a garden bed retained with sleepers around the edge of the pool on three sides and brick paving. 8 The applicants purchased the property in 2001 and moved in in 2003. In 2004, they retained the brick edging but removed the brick paving and the garden beds and replaced the entire surround in stencilled concrete. According to Mr Zangari, the concrete slab is 100 mm thick and reinforced. There are no expansion joints as such but rather saw cuts, made for the same purpose, in various locations around the pool. 9 As stated previously, the section in contention is that in the north-western corner. This approximately 1.5m square section is defined by saw cuts to the north-east and the south-west. The north-eastern edge of this section rises gradually from the edge of the pool to the rear fence to a height of about 15-20 mm above grade at the most northern end. Mrs Zangari stated that this is a trip hazard and a visiting child stubbed his toe on that edge thus raising the issue of potential injury. There was no apparent lifting of the south-western section of that section of slab. The pavement at the edge of the north-western corner of the pool is slightly raised above the brick edge but so too is the pavement at the edge of the south-western corner of the pool. 10 A walk around the pool showed no other lifting along saw cuts but several fine cracks in a number of areas. Whilst the raised section of slab is the section closest to the Liquidambar, no roots were visible or were shown to me by the applicants. 11 Under s10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is a risk of injury to persons. In, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay. 12 The Court must consider a number of matters under s12 of the Act. The relevant clauses in this case are; (a) The tree is wholly located on the respondent's property. (d) According to the respondents' submissions and photographs contained in them, the tree contributes to the local ecosystem and to biodiversity. (e) The tree contributes to the scenic value of the land on which it is growing and to the locality. (f) The tree has some value to public amenity as it can be seen from the rear of nearby residences. (h) and (i) Other factors and steps taken – see paras 13 - 16