Land and Environment Court of New South Wales CITATION : Spence v Syed and Anor [2008] NSWLEC 1331 APPLICANT Joan Spence PARTIES : RESPONDENTS Asif and Rana Syed FILE NUMBER(S) : 20427 of 2008 CORAM: Moore C - Thyer AC KEY ISSUES: Trees (Neighbours) :- LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 28 July 2008 EX TEMPORE JUDGMENT DATE : 28 July 2008 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENTS In person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C THYER AC 28 July 2008 20427 of 2008 Joan Spence v Asif Syed and Anor 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: In the front setback of 12 Armata Court, Wattle Grove, are growing three large Cypress trees approximately 150 to 200 mm from the boundary of that property with the adjacent property at 14 Armata Court owned by Ms Spence. 2 In the rear, adjacent to the boundary between the properties (and also on 12 Armata Court) are the two other trees – another smaller Cypress and a New Zealand Christmas tree. Ms Spence makes an application for orders for the removal of all five trees and for compensation for damage to her paved driveway and paved path along the side of the property. The quotation she has provided for the rectification of this damage is approximately $7500.00. 3 We have carefully inspected the front driveway and the rear pathway area. We are satisfied that the first of the tests under s 10(2)(a) of the Trees (Disputes between Neighbours) Act 2006 is met in that damage has been occasioned to Ms Spence's property. 4 We are satisfied with respect of the damage to her front driveway that that damage has been caused by all three of the trees (although to possibly varying degrees and possibly for differing reasons). 5 With respect to the damage to her rear pathway, we are satisfied that the single significant root exposed by removing the more significantly lifted of the pavers of the path causes us to conclude that the damage to the pathway has been caused by this Cypress rather than by the New Zealand Christmas tree. 6 We are satisfied that the four Cypress which have caused damage to her property are all so close to the boundary between the two properties that it would not be practicable to order the installation of root barriers and the removal of existing intruding roots as a cure, particularly with respect of the three trees at the front of the property (which are of significant height and trunk girth) because of the instability that would be occasioned to them. If we were to order root barriers along the common property boundary, it is likely to cause them to be a risk of failure in the direction of 12 Armata Court, clearly an inappropriate result. 7 We have concluded that this damage has been caused by the trees and that there is no practical way to rectify it without the removal of all four of the trees. 8 Mr Syed has put to us on his behalf and his wife's behalf (as the owners of the property upon which the trees are located) that they ought not be held liable for the trees or for the damage caused by them as the trees "are acts of nature and they grow where they do". 9 The law, however, creates the position where the Syeds are responsible – subject of other matters of consideration of the Court's discretion – for the trees. We are satisfied that, in order to enable the present damage to be dealt with and to prevent future damage, the four Cypress trees should be removed. 10 In proposing to order that, we have also considered the location of the front boundary between properties and the Council road reserve; we have considered the boundary setbacks evidenced by construction on the adjacent properties; and the location of the expansion joint in the driveway on Mr and Mrs Syed's property. We have also measured the setback between the kerb and Ms Spence's house which is 7 m. 11 We are satisfied that we should assume (there being no evidence to the contrary and the position not being pressed to the contrary by Mr Syed) that the boundary between Ms Spence's property and Mr Syed's property and the Council road reserve is at a 2 setback from the top of the kerb. 12 In light of that, we are satisfied that all three of the substantial Cypress trees in the front of 12 Armata Court are in fact located on that property. Consequently, we have concluded that we should order Mr Syed to remove all of those trees to ground level and that we should allow him a period of 60 days within which to do that. 13 It is inappropriate to consider requiring Ms Spence to undertake any repaving work until that removal work has been effected. 14 We have therefore turned to consider what should be the scope, if any, of the compensation order we should make for the replacement of the driveway and of the small area of paving within the rear pathway between Ms Spence's fence and her laundry door access. 15 The ratio of area of driveway within Ms Spence's property compared to that which is in the Council road reserve is approximately 2/7 in the Council road reserve and 5/7 in Ms Spence's property. We have further noted that there is a pathway from the driveway to the front entrance of her house which also shows, both close to the garage and close to her house, displacement by tree roots and one tree root being evidenced between the paving bricks at the most outer edge. 16 We are satisfied that as a rough rule, we should adopt a 5/7 ratio on Ms Spence's property and 2/7 ratio on the Council property for the totality of the paved area and as a basis for apportioning what compensation we might order for replacement of the driveway and in consideration of what might be appropriate for the replacement of the path at the rear. 17 We have taken into account – having dug into the paving underneath in one of the parts of lifted pavement – that there appears to be a compacted road-based structure topped by a layer of sand top by the pavers (consistent with what might have been considered the appropriate construction standards at the time of the dwelling was built). 18 We have also taken into account that there appears to be significant subsidence across portion of Ms Spence's driveway. An examination of the outlet point of the stormwater drain to the street shows that, despite the fact that the inspection is taking place during rain, there was no discharge from that stormwater point nor is there any discharge from the immediately adjacent stormwater point on Mr and Mrs Syed's property. We are satisfied that that is consistent with a likely, on the balance of probabilities, blockage or constriction or breakage of the stormwater line from Ms Spence's property to the road being occasioned by the roots of the tree. 19 During the course of the inspection Ms Spence was asked about the history of her notification to Mr Syed and the extent of the damage which has been occasioned to her pathway and driveway in the intervening period. 20 We are satisfied that, on the basis of what we have been informed, we should assume that Mr Syed became aware of the damage no more than some 12 months ago. We are satisfied that, prior to that time, he would have had no opportunity to be aware of or rectify the damage. 21 However, Ms Spence also given evidence to us that there has been a significant exacerbation in the damage over the recent period since notification was given to Mr Syed. In all matters such as this, the basis of calculations unnecessarily imprecise and based upon, as best we are able to understand it, the position on the day. 22 We are satisfied that the ratio of 2/7 to 5/7 is the appropriate basis upon which we should approach the totality of the quotation and remove the removal of any element of the re-laying of the path at the rear. As an adjustment for the lack of notice opportunity to rectify prior to 12 months ago to Mr Syed and to take account of the fact that, as part of our orders, we are going to require Ms Spence to re-lay the totality of her driveway but only order compensation for the portion which is on her land rather than on the Council road reserve, we therefore propose to make the following orders: 1. Mr and Mrs Syed are to remove the three Cypress trees in front of their property and the Cypress tree at the rear of the property within 60 days of the date of the Court's orders; 2. Such removal is to be undertaken by an AQF level 3 qualified arborist with appropriate insurances; and 3. If necessary for the purpose of removal of or catching of material from the three trees at the front, Ms Spence is to permit access to her property to enable that to take place (on appropriate notice to her; at a reasonable hour of the day; and with her having the opportunity to supervise that access if it is necessary to be undertaken). 23 With respect to the re-laying of the path and the driveway, the quotation is approximately $7,500.00. We are satisfied that the appropriate order is to require Mr and Mrs Syed, within the (agreed) period of 90 days after the service on them of a receipted invoice for the completion of the work, to pay Mrs Spence $5,000 toward its cost. Tim Moore Peter Thyer Commissioner of the Court 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.