Land and Environment Court of New South Wales CITATION : The Owners' Corporation of Strata Plan 2104 v Sciru Pty Ltd [2009] NSWLEC 1428 APPLICANT The Owners' Corporation of Strata Plan 2104 PARTIES : RESPONDENT Sciru Pty Ltd FILE NUMBER(S) : 20621 of 2009 CORAM: Fakes C KEY ISSUES: TREES (NEIGHBOURS) :- Removal of three trees, Damage to property and Compensation LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Hansen v Hetherington [2009] NSWLEC 1178 DATES OF HEARING: 14 December 2009 DATE OF JUDGMENT: 22 December 2009 APPLICANT Mr T Sattler (solicitor) SOLICITOR Sattler and Associates Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Mr M Abrahamian (solicitor) SOLICITOR Konstan Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Fakes C 22 December 2009 20621 of 2009 The Owners' Corporation of Strata Plan 2104 v Sciru Pty Ltd JUDGMENT 1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by the Owners' Corporation of Strata Plan 2104 of 105 Oaks Avenue Dee Why against the owner of three trees growing at the rear northern boundary of a property at 114 Pacific Parade Dee Why. The owner of that property is Sciru Pty Ltd. 2 Mr Tony Sattler of Sattler and Associates Pty Ltd represented the applicant. Also present on behalf of the applicant were Ms Angalee Cimno, owner of one of the car spaces in question, Ms Samanthea Culshaw, owner of another affected car space, Ms Dorothy Marr, Secretary of the Body Corporate, Ms Barbara Jackson, member of the Body Corporate, and Ms Musson, an owner. Mr Paul Laverty, an arborist was also in attendance. 3 Mr Matthew Abrahamian of Konstan Lawyers represented the respondent. Also in attendance for the respondent were Mr Nick Murdocca, the owner's representative, Mr Andrew Martin, town planner, Mr Tom Bakker, architect, and Mr William Home, arborist. 4 The applicant is seeking the removal of three trees, a Melaleuca quinquenervia (Broad-leaved Paperbark), a Pittosporum undulatum (Native Daphne) and a Phoenix canariensis (Canary Island Date Palm) as it contends that the trees, especially the Melaleuca, have caused damage to a concrete slab used for car parking. The applicant is also seeking the reinstatement of the concrete, the replacement of the trees with suitable indigenous trees and the installation of a root barrier. These actions are to be undertaken at the expense of the respondent. 5 The applicant is also seeking compensation for the following costs: an arborist's report, an application to Warringah Shire Council to remove the trees and associated site visits by council and a builder, extra charges from the strata managing agent and the costs incurred in removing the concrete to inspect the roots. 6 The respondent does not wish to remove the Melaleuca and seeks the replacement of the slab in accordance with recommendations made by Mr Home in his report of October 2009. The respondent also asks that the cost of this work be borne equally by both parties. 7 Both parties acknowledge that the Phoenix palm and the Pittosporum need to be removed and the arrangements for this will be determined by the parties. This element of the application has been withdrawn and the judgment will apply to the Melaleuca only. 8 The tree was assessed on behalf of the applicant on 14 August 2008 and then again on 25 and 29 May 2009 by Graham Brooks of Arboricultural Tree Services Pty. Ltd. 9 The purpose of the initial inspection and report was to determine the health, condition and impact of the tree on the concrete driveway. Photographs included in this report show lifting and cracking of the section of concrete slab closest to the tree. In his opinion, the tree roots had caused damage to the concrete driveway and that installation of a root barrier to protect the concrete from root growth would be inappropriate due to the extent of root pruning that would be required. In his opinion, retention of the tree would result in continual and additional structural damage to the driveway as the tree would most likely increase in size by a further 25%. In his words, he 'regrettably' recommended the removal of the Melaleuca as well as the other two plants. 10 On 25 May 2009, Mr Brooks supervised the removal of the damaged concrete slab. On 29 May Mr Brooks met with Mr Jason Goldstein, Tree Management Officer for Warringah Shire Council, to discuss the feasibility of repair and reinstatement of the parking area whilst retaining the tree and minimising the impact of doing so on the tree. Removal of the concrete revealed roots from the Melaleuca of between 50 and 300 mm in diameter. 11 The on-site hearing confirmed these observations. The tops of the larger roots were approximately 150 mm above grade. 12 According to Mr Brooks' report of August 2009 relating to the May inspections, alternative paving materials such as pavers and structural soils were discussed. However, it was determined and agreed by Mr Brooks and Mr Goldstein that extensive root pruning would still be required in order to reinstate a suitably level parking area. Due to the impact of this on the tree, Mr Brooks reaffirmed his recommendation to remove the tree. Mr Goldstein agreed to this, subject to the lodging of an application form, presumably by the tree owners. 13 On 29 October 2009, Mr William Home, an arborist trading as Dr Treegood, inspected the tree and the damaged concrete on behalf of the respondent in response to this application under the Trees Act. 14 In his statement, Mr Home states that the tree is healthy and without any structural defects. He states that the tree should grow by another 25% over the next 30 to 40 years and thus appears to concur with Mr Brooks. Mr Home is of the opinion that a new driveway could be installed without affecting the tree roots and gives examples of gap-graded soil covered in a range of materials such as crushed granite, bonded pebbles, asphalt, pavers and so on. He states that concrete could be used in strips or sections as long as it is separated from the roots by 100 mm. 15 At the on-site hearing, the tree was inspected from both properties. It is located at the rear of 114 Pacific Parade within about 500 mm of the dividing fence with 105 Oaks Avenue. It is a tree in its early maturity between 12-14 m in height with a diameter at breast height of about 50 cm. The Phoenix Palm and the Pittosporum are growing at the base of the Melaleuca. In my opinion, the tree appeared healthy but there were was included bark, a potential structural defect, between the trunk and the first major branch at about 2.5 m above ground and at a bifurcation higher in the tree. Neither of the arborists mentioned this in their reports nor did Mr Laverty mention this at the hearing. 16 The land on which the tree is growing has been recently re-developed as a residential flat building. According to evidence given on site, excavation for underground structures commenced in February 2008 and landscaping works were completed in March 2009. The edge of the excavated area is some 2.5 m to the south of the tree. There is a raised garden bed to a height of about 800 mm about 1.0 m from the tree. 17 According to Mr Home, tree protection measures were in place during the construction period. 18 Behind the reconstructed timber dividing fence a row of Banksia sp have been planted and amongst other landscaping, a Tristaniopsis laurina (Water Gum) has been planted to the south-east of the Melaleuca. 19 The eastern side of the applicant's property is a concrete driveway that leads to the rear or southern section of the property. The rear section is mostly paved in concrete except for an area on the south-western side used for clotheslines. On the concrete apron at the southern end there are four designated car spaces. The spaces for units 13 and 15 are in the south-eastern corner. There is an area about 6 m wide between those spaces and the designated spaces for units 14 and 4. The area between the two pairs of parking spaces is used for turning and manoeuvring for those units with car parking beneath the building. 20 The section of concrete in question affects the designated spaces for units 14 and 4; the most affected is the space for unit 14, which is owned by Ms Cimno. Ms Cimno stated that due to the unusable state of the concrete slab, she has had to reduce the rent to her tenant. 21 At present, the most damaged section of the slab has been removed. The slab to the east is lifted at its north-western corner and there is a crack along its length. There is some fine cracking of the slab to the north of the removed slab. 22 At the on-site hearing, there was considerable debate between the advocates regarding the permissibility of the use of the damaged concrete slab for parking. The applicant contends that the Land Use Consent granted by Warringah Shire Council in May 1965 and the subsequent Certificate of Compliance granted in February 1966, validates the use. The consent was for the development of a residential flat building to comply with various council requirements including 'one paved car parking space to be provided for each flat. The respondent's position is that as there was no parking plan on file with the strata plan, and the strata by-law formalising the right to one car space per unit was approved in May 1967, there is no certainty as to the right to use that section of the slab for parking. The practical intent of this debate was in regard to the extent and type of resurfacing that may be required. 23 Under s 10(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. 24 Whilst the permissibility of the use of the slab is a point of contention between the parties, the undisputed fact is that the roots of the tree have caused damage to the slab. Therefore as one of the tests under s 10(2) is satisfied, the jurisdiction is enlivened with respect to the Melaleuca and the Court can make an order. 25 The Court must also consider a number of matters under s 12 of the Act. The relevant clauses in this case are: (a) The tree is wholly located on the respondent's property. (d) The tree contributes to the local ecosystem and to biodiversity. (e) The tree makes a contribution to the scenic value of the land on which it is growing as it provides a visual screen between the applicant's and respondent's properties. (f) There is some value to public amenity as it can be seen by nearby residents including those residing in the respondent's property. (j) The retention of the tree was condition of consent for the development of the applicant's property. As a result of the development, there has been a substantial reduction in the available rooting space for this tree. 26 At the on-site hearing, the option of replacing the damaged slab with a suspended slab was put to the parties. The respondent's experts considered that this was possible and that the owner would be prepared to carry out the works. The applicants were not in favour of the works due to the required level changes and the lack of a guarantee that the problem would not arise in the future. There was a difference in opinion between the arborists as to the required height above the roots that the slab would need to be raised in order to achieve reasonable longevity from the slab. 27 Mr Laverty supported the conclusions and recommendations of Mr Brooks. In Mr Laverty's opinion, the tree was relatively young and a characteristic of the species is its large and extensive woody root system. 28 After hearing from the parties and viewing the evidence I make the following conclusions. The Melaleuca has caused the damage to the concrete slab. There is no practical means of limiting future damage given the relatively young age of the tree, its likely eventual size (both above and below ground) and its proximity to the boundary. Whilst a suspended slab is possible and its construction is agreeable to the respondent, it becomes a structure for which the applicant will be responsible. In my opinion, the options put forward by Mr Home include materials that are not practical for vehicular movements and would require regular maintenance or resurfacing. 29 With respect to who should pay for any works and what compensation should be ordered, Mr Abrahamian for the respondent drew my attention to Hansen v Hetherington [2009] NSWLEC 1178. The contention is that the applicant failed to give the respondent adequate notice of the damage and therefore the respondent should not be required to pay compensation. The representatives of the Body Corporate for 105 Oaks Avenue gave oral evidence that they had made numerous but unsuccessful attempts since August 2008 to contact the owners of 114 Pacific Parade. Mr Abrahamian contends that the owner's details could have been found if the appropriate searches had been made. 30 With respect to this matter, the compensation claimed by the applicant in para 5 of this judgement relates to costs associated with determining the cause of the cracked concrete and proving the nexus between the tree and the damage. In these matters, the onus is on the applicant to prove that nexus and Commissioners do not have the jurisdiction to award costs. 31 Therefore, after considering the evidence and the submissions, the Orders of the Court are: 1. The application to remove the tree is upheld. 2. The tree is to be removed by an arborist with a minimum AQF level 3 qualification in arboriculture and with the appropriate insurances. The tree is to be removed to ground level and the stump poisoned. The roots on the applicant's property are to be removed to depth sufficient to enable the reinstatement of the concrete slab to a standard appropriate for its current use. The tree and root removal are to be organised and paid for by the respondent within 40 days of the date of these orders. All work is to comply with the WorkCover Code of Practice for the Amenity Tree Industry. 3. The applicant is to provide all reasonable access for these works to be carried out. The respondent's arborist is to provide at least 5 working day's notice to the strata manager and the Body Corporate of 105 Oaks Avenue of these works. The strata manager and the Body Corporate are to ensure that the notice is passed on to the relevant tenants/ owners and that the site is accessible. 4. Once the tree and roots have been removed, the applicant is to obtain three quotes for the replacement of the removed slab. The respondent is to agree to one of those quotes. The applicant is to engage and pay for the selected contractor. The respondent is to reimburse the applicant for the cost of the works within 30 days of the receipt of a tax invoice for the completed works. 5. The application for the replacement planting of two suitable indigenous tree species within the property of 114 Pacific Parade and the installation of a root barrier is dismissed. 6. The application for compensation for costs associated with the removal of the concrete is dismissed. _________________________ J Fakes 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.