Land and Environment Court New South Wales Medium Neutral Citation: Strata Plan 70657 v Strata Plan 65757 [2015] NSWLEC 1438 Hearing dates: 28 October 2015 Date of orders: 28 October 2015 Decision date: 28 October 2015 Jurisdiction: Class 2 Before: Galwey AC Decision: The application is upheld. See orders at paragraph 15. Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage caused by tree roots; orders for tree removal and repairs to driveway. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Hinde v Anderson and anor [2009] NSWLEC 1148 Category: Principal judgment Parties: Strata Plan 70657 (Applicant) Strata Plan 65757 (Respondent) Representation: Gordon Green, agent (Applicant) Ray Barrett, agent (Respondent) File Number(s): 20647 of 2015 Judgment This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. Background 1. The owners of Strata Plan 70657 ('the applicant') have applied to the Land and Environment Court pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 ('the Trees Act') seeking orders for the removal of three neighbouring trees and compensation from the neighbouring Strata Plan 65757 ('the respondent'). An ever-diminishing row of trees grows in a garden bed on common property on the respondent's land, close to and along the common boundary with the applicant's property. The trees were part of approved plans for the development application on the respondent's property and were planted in about 2000. On the applicant's side of the common boundary, within their common property, is a concrete driveway consisting of separate slabs of dark-coloured concrete. The driveway was constructed in about 2003. 2. The trees were the subject of a previous application made to the Court. In 2013 Fakes C determined that one tree should be removed on the basis that it was causing damage to the applicant's driveway. 3. Before I can make orders I must be satisfied that the circumstances have changed since that matter, as explained comprehensively in the decision of Moore SC and Thyer AC in Hinde v Anderson and anor [2009] NSWLEC 1148. According to s 10(2) of the Trees Act, I must also be satisfied that the trees have caused, are causing, or are likely in the near future to cause, damage to the applicant's property, or are likely to cause injury to a person. 4. The applicant seeks the following compensation: $5,390 for gutter-guard installed to roof gutters of dwellings on the property; $6,380 for replacing three sections of the driveway lifted by tree roots; $40 for labour to expose roots adjacent to the driveway; and $228 being the cost of making the application. The last two items are costs for which Commissioners of the Court do not have the power to award, and would require a Notice of Motion to be filed and determined by the Registrar or a Judge of the Court. 5. In the application the proposed orders included the removal of three trees (Trees 3, 7 and 11), root pruning and monitoring of Tree 2, and pruning of tree 13 where it overhangs a dwelling. Tree 13 has been pruned in the interim and the applicant no longer seeks orders for that tree. Tree 3 has already been removed. 6. For clarity, the trees are listed below, using the numbering provided in the application: 2 Acer negundo (Box Elder) 3 Removed 4 A. negundo 5 Triadica sebifera (Chinese Tallow Tree) 6 A. negundo 7 T. sebifera 8 A. negundo 9 Removed 10 Removed 11 Syzygium smithii (Lilly Pilly) 12 S. smithii 13 Melia azedarach (White Cedar) The Court has jurisdiction to make orders 1. Mr Green, representing the applicant, says the extent of damage has increased since the 2013 hearing, in that the three concrete slabs have been raised more. This time the applicant has done some excavation and exposed roots, which had not been done previously. Simply presenting new evidence, such as the location of roots, which would otherwise have been available had they made the effort at the previous hearing, would not be a change in circumstances. However Mr Barrett, agent for the respondent, does not dispute Mr Green's allegation that there is now further damage, so I accept that circumstances have changed since the 2013 hearing. Based on the visible evidence that large tree roots are growing beneath and against the concrete driveway where it has lifted, I also accept that Trees 2, 3, 7 and 9 have contributed to lifting of the driveway. Roots of these trees have been exposed by excavation and can be seen growing immediately beneath, and pushing against, the raised slabs of concrete. Tree 9 was removed as a result of the 2013 decision of the Court, and Tree 3 has been removed since then. Further along the boundary, roots of tree 11 are displacing palings of the fence. The Court therefore has jurisdiction over Trees 2, 3, 7, 9 and 11, noting that Trees 3 and 9 have already been removed. Appropriate action for the trees 1. The respondent commissioned a building report and an arborist report to assess the situation. Neither report was filed, as the respondent says both reports confirmed the applicant's allegations. The applicant does not dispute the need to remove Trees 2, 7 and 11. I accept that removing these trees is the only practical way to prevent them causing further damage, as cutting roots along the driveway edge would be so close to their stems that it would compromise the trees' stability in the ground and adversely affect their health. Gutter-guard 1. Regarding the cost of installing gutter-guard, there is no sign that leaves have caused damage to dwellings. Mr Green says the gutter-guard was installed to prevent damage. Leaves and other small parts fall from urban trees, requiring maintenance. As there has been no damage, and there is nothing to indicate there will be damage in the near future resulting from leaf drop, this is not something for which I can make orders. Consequently this element of the application is dismissed. Repairing the driveway 1. Turning to compensation for the driveway then, the applicant has obtained one quote for $6,380 to completely replace the three raised slabs. Other slabs in between would remain. 2. Although I am satisfied that roots have further raised the three concrete slabs since 2013, in my view the damage is relatively minor. The three slabs are not cracked and apart from being lifted are otherwise in perfect condition. Each one is lifted above its neighbour by 3-4 cm. This is not a problem for vehicles but does create a trip hazard and a slight aesthetic distraction. Mr Green proposed at the hearing that only the lifted half of each slab might require replacement, thus reducing the cost of the works. I proffered that it might be possible to grind the raised edge of each lifted slab to eliminate the trip hazard. Mr Green submitted that this might expose steel reinforcing, but considering that the extent of grinding is less than 4 cm and is only at the very edge of each slab, I find this unlikely. Grinding may change the appearance of the edge of each slab, contrasting slightly with the remainder of the slab, but the visual impact would surely be less than the difference between old and new slabs along the driveway. 3. Mr Green says the cost of driveway repairs should be borne by the respondent, as it has been known that there was a problem with tree roots since the previous hearing and yet the respondent has taken no action to prevent further damage. Mr Barrett says that the respondent was not informed until recently that the problem was ongoing. He says that the previous decision of the Court did not find that roots of the remaining trees were causing damage. He says they could not have expected that any further action would be required. Mr Green says he was told by the Court that he had to wait two years before he could take any further action, so did nothing during this period. There is no basis that I know of for any such advice and it is possible that Mr Green has misunderstood something during verbal communications with the Court. 4. The applicant has benefited from screening provided by the trees. The respondent carried out orders from the previous decision. Using the discretion permitted by the Act in apportioning any repair costs, I consider that sharing equally the relatively minor costs of concrete grinding seems reasonable. 5. If the applicant wishes to carry out more extensive repairs, such as replacing each concrete slab in its entirety, the orders do not prevent them from so doing, but the respondent will only be required to pay half the quoted grinding cost. Orders 1. Therefore the orders of the Court are as follows. 1. The application is upheld. 2. Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist (minimum AQF Level 3), with all appropriate insurances, to remove Trees 2, 7 and 11 to ground level and immediately poison their stumps. 3. The works in (2) are to be done in accordance with the guidelines of the WorkCover NSW Code of Practice for the Amenity Tree Industry. 4. Within 60 days of the date of these orders the applicant is to obtain three quotes for grinding the edges of the three raised concrete slabs so that their edges are level with adjacent slabs, and are to present these quotes to the respondent. 5. Within 90 days of the date of these orders the applicant is to engage and pay for their selected contractor to carry out any repair works to their driveway in the manner they see fit. 6. Within 14 days of being presented with a paid receipted invoice for driveway repair works the respondent is to pay the applicant 50% of the cheapest quote provided to them in order (4). 7. If no such invoice is received by the respondent within 6 months of the date of the orders, order (6) lapses. ____________________________ D Galwey Acting Commissioner of the Court 20647 of 2015 Galwey (O) (11.6 KB, pdf) ********** 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. Decision last updated: 30 October 2015