Land and Environment Court of New South Wales CITATION : Hourani and Chambers v Kapo Holdings Pty Limited [2007] NSWLEC 341 APPLICANTS Pamela Hourani and Jennifer Chambers PARTIES : RESPONDENT Kapo Holdings Pty Limited FILE NUMBER(S) : 20258 of 2007 CORAM: Moore C - Thyer AC KEY ISSUES: Compensation - Trees (Neighbours) - Neighbour Application :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 6 June 2007 EX TEMPORE JUDGMENT DATE : 6 June 2007 APPLICANTS In person LEGAL REPRESENTATIVES: RESPONDENT Mr M Kapodistria, director JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C THYER AC 6 June 2007 07/20258 Pamela Hourani and Jennifer Chambers v Kapo Holdings Pty Limited 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 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. COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). 2. The applicants, Ms Hourani and Ms Chambers, seek orders for the removal of a Pussy Willow (Salix cinerea) (the tree) which is located on a property adjacent to the property owned by them at 7 Lovel Street, Katoomba. 3. The tree is located on 5 Lovel Street immediately adjacent to the boundary with the applicants' property and close to the rear building line of the applicants' building. 4. The applicants seek an order that the tree be removed and that they be compensated in two respects. 5. The first compensation claim is for $2420 for repairs to the roof of their property caused by the failure of a branch of the tree damaging from their roof. 6. The second aspect of their claim is for the cost of replacement of a terracotta sewer line as a result of root invasion. This claim is for $3,575. 7. We had carefully considered the photographs and the oral evidence given to us during the course of the site inspection. 8. We are satisfied that, pursuant to s 10(2)(a) of the Act, the tree has caused damage to the applicants' property. 9. There is certainty as to the cause of the damage to the roof and, whilst there may be a degree of uncertainty (to which we will return later) as to the extent of the contribution that this tree may have made to the damage to the sewer line caused by tree roots, the roof damage is sufficient to enliven the Court's jurisdiction with respect to the tree. 10. We have also carefully examined the state of health of the tree. It is clearly in decline – having had at least one significant past limb failure (which resulted in the claim for damage to the applicants' roof) and there is evidence of past limb removal which has led to decay into places in the tree's trunks. 11. There is also a significant ivy growth on the tree which, over time, will cause damage to the tree if it is not removed. 12. We are satisfied, on balance, that it would be appropriate to order the removal of that tree as we are satisfied that it has damaged the applicants' property, and, in light of our assessment of the health of the tree, it is likely, in the near future, to cause further damage to the applicants' property. 13. We propose to order the tree's removal and that the owner of the tree have 28 days from the date of the order of the Court to effect its removal. 14. The questions of the compensation fall, as earlier noted, into two categories. 15. The first, relating to the repairs to the roof, is one where there is no issue as causation. 16. We are satisfied that it would be reasonable to order the owner of the tree to pay the sum of $2420 which has been paid by the applicants. However, this is subject to the applicants indicating to the owner of the tree the extent to which they were entitled to make any insurance claim. If they were so entitled, the payment that is to be made by the owner of the tree is to be limited to the excess on the insurance policy in that regard. 17. The question of whether or not insurance would cover all or part of the damage can be dealt with by the provision of a statutory declaration from the relevant one of the applicants to the owner of the tree. 18. Therefore, within 28 days of the furnishing of an appropriate statutory declaration to the owner of the tree, the owner of the tree is to pay the applicants maximum of $2420 for the repairs to the applicants' roof. 19. With respect to the replacement of the sewer line, there is a significant degree of uncertainty as to causation and there are issues necessarily involved relating to the age and nature of the sewer line which was a replaced. 20. The applicants have removed a tree of the same species, Pussy Willow, from their own property – a tree which was located some 4 m further away from that portion of the sewer line for which claim is made. 21. In addition, there is a grass tree located close to the sewer line in the vicinity of the damaged section. There is also a large cherry tree some several metres further downstream along the sewer line. 22. We are unable to be sure which of these four trees (or some combination of them) caused the damage which includes the replacement of the sewer line. 23. However, we are satisfied that it is probable, under all circumstances, that some combination of all these trees will have caused the damage. Because of proximity, we are satisfied that the tree has caused at least part of the damage. 24. We also consider it appropriate to take into account the age of the sewer line (which, based upon the age of building, would appear to be, at the most recent, somewhat immediately post Second World War). 25. The applicants have also acknowledged that the replaced sewer line was of jointed terracotta construction. 26. Under all circumstances, we are satisfied that it would be appropriate to require the owner of the tree to contribute to the cost of replacement of the sewer line to an amount of $1000 toward the total cost of $3575. 27. Although this calculation is intuitive, it takes into account the number of trees; their locations; and the age and method of construction of the sewer line. 28. As a consequence, the owner of the tree is to pay to the applicants, within 28 days of the date of the orders of the Court, $1000 toward the cost of replacement of the sewer line. Tim Moore Commissioner of the Court 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.