Adams v Matthei
[2019] NSWLEC 1595
•22 November 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Adams v Matthei [2019] NSWLEC 1595 Hearing dates: 22 November 2019 Date of orders: 22 November 2019 Decision date: 22 November 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders that:
(1) Within 90 days of the date of these orders, the respondents are to engage and pay for a fencing contractor to re-align the two displaced posts in the steel mesh common boundary fence in the front setback, and to re-align and re-attach the steel mesh panels adjoining these two posts.
(2) On reasonable notice, the applicants are to allow any access required for the works in (1) during reasonable hours of the day.
(3) Within 90 days of the date of these orders, the applicants and respondents are to jointly engage a fencing contractor to demolish the wooden paling fence along the common boundary in the rear part of their properties, and to replace it with a steel panel (‘Colourbond’) fence beginning between the backs of their dwellings where one panel of existing steel mesh fence must be removed, at a height of ~1.8 metres for four panels (each panel approximately 2.4 metres long), then tapering down over the next two panels (each panel approximately 2.4 metres long) to a height of 1.2–1.4 metres for the remainder of the fence. The fence must be constructed along the common boundary as recently pegged by a surveyor.
(4) The applicants and the respondents are all to allow any access required for the works in (3) during reasonable hours of the day.
(5) The applicants and the respondents are each to pay 50% of the cost of fencing works in (3), including any deposit required by the contractor’s terms.
(6) The parties are granted liberty to re-list should anything prevent the completion of these orders.Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – the trees have been removed – damage – fence – driveway – compensation sought – orders for fencing works – no orders to control future plantings Legislation Cited: Dividing Fences Act 1991 (NSW)
Trees (Disputes Between Neighbours Act) 2006 (NSW)Category: Principal judgment Parties: Karen Adams (First Applicant)
Peter Adams (Second Applicant)
Julie Matthei (First Respondent)
Helen Margaret Matthei (Second Respondent)Representation: K Adams (Litigant in person) (First Applicant)
P Adams (Litigant in person) (Second Applicant)
J Matthei (Litigant in person) (First Respondent)
H Matthei (Litigant in person) (Second Respondent)
R Whitten (Agent) (Respondents)
File Number(s): 2019/284823 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
The application
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Four trees grew on the Tea Gardens property belonging to Julie Matthei and Helen Matthei (‘the respondents’). Karen and Peter Adams (‘the applicants’) applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for:
the four trees to be removed
repairs to the boundary fence
compensation for damage to their driveway
restriction of further plantings close to the common boundary.
Framework of this decision
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As allowed by s 7 of the Trees Act, the Adams have applied for orders relating to damage caused by trees on adjoining land.
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The Adams have tried for some time to resolve the situation, sending some emails over several years. The respondents are rarely at their property. The applicants said they informed the respondents in 2017 that roots might be damaging their driveway and pipes. The applicants’ efforts satisfy the jurisdictional test at s 10(1) of the Trees Act.
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Since the Adams made their application to the Court, the four trees have been removed, so can no longer cause damage or injury. According to s 4(4) of the Trees Act, the jurisdiction still applies although the trees have been removed. Before making any orders, I must be satisfied at s 10(2) that the respondents’ trees have caused damage to the applicants’ property. If I find that to be the case, I must consider a range of matters at s 12 before making orders.
The trees
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The trees were three Jacarandas (T1, T2 and T3) and a Bunya Pine (T4). They were all located close to the common boundary: T1 in the front setback, near the Adams’ driveway, and the others in the large rear garden.
The damage caused
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The Adams submitted that:
roots of T1 damaged their concrete driveway;
roots of T1 broke sewer and stormwater pipes beneath and alongside their driveway; and
roots of T1 lifted and broke the wire boundary fence;
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In their application, the Adams wrote that branches of T2–T4, and cones falling from T4, would damage a new fence. Those trees have been removed so such damage cannot now eventuate.
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The onsite hearing allowed observations of the damage. The Adams also provided several quotes for repairing their driveway.
Driveway damage
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Nearest the common boundary, the Adams’ driveway has subsided rather than being raised. Where it meets their garage, the driveway is lower than the garage’s concrete slab. Further from the tree the edge of the driveway is level with the garage slab. The Adams submitted that T1’s roots have damaged the sewer pipe beneath their driveway, and moisture leaking from the pipe has washed away some soil beneath the driveway, leading to its subsidence. They also pointed out a crack in the exposed-aggregate driveway, which they said was caused by T1’s roots. They explained that a new driveway surface cannot be matched to the existing surface, so they may wish to replace the whole driveway. However, they only expect the Mattheis to pay for the damaged half. They provided several quotes for repairing or replacing the driveway, all of which were several thousand dollars.
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The Adams had excavated next to the driveway to show stormwater pipes running along the edge of the driveway, and a pipe they said was a sewer pipe running beneath the driveway. They explained that the trench was first excavated when T1’s crown was interfering with their electricity service wire, so in 2017 they had the cable put underground along the edge of the driveway. During those works, they discovered that pipes were crushed by tree roots, so replaced some pipes. They do not claim compensation for works to the pipes.
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The respondents submitted that they were unaware their tree might be damaging their neighbours’ driveway. They argued that a sewer plan shows the sewer pipe beneath the driveway does not reach the edge near the common boundary, so the damaged pipe was not a sewer pipe.
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The respondents submitted that damage to the applicants’ driveway is minor, reflecting no more than its age and usual wear-and-tear.
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I find there is no evidence that roots have damaged the driveway. Part of the driveway nearest the boundary has dropped, rather than being raised by roots. Quotes for the driveway repair refer to subsidence and a leaking or damaged sewer. If, as the applicants claim, the leaking sewer is a result of tree root damage, they have provided no evidence of this. Mr Adams stated that he first noticed damage to the driveway in 2018, and since then it has got worse. The trench along the driveway in 2017 was excavated to a depth of at least 600 mm. Most roots crossing the boundary were therefore severed at that time – these severed roots could be seen in the exposed trench at the onsite hearing. It follows that roots are unlikely to have contributed to further damage of the driveway or any pipes since then.
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I cannot be satisfied that roots from T1 have damaged the applicants’ driveway. No orders will be made for repairing the driveway or for compensation for its repair. If the Adams wish to repair it, that is a matter for them.
Fence damage
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The Adams argued that roots of T1 lifted and displaced the steel mesh fence along the common boundary in the front setback. The respondents argued that the late Mr Matthei had built the fence around the tree, so it has always been like this. The applicants provided a quote for replacing four posts and re-aligning the fence. I observed that two steel mesh panels were no longer properly connected to the posts. Some displacement has occurred even if the fence was built around the tree. Damage is minor and I find that only two fence posts need to be re-aligned, along with adjoining steel mesh panels.
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The applicants and respondents want the dilapidated timber paling fence separating their large back gardens replaced. They have almost agreed on the nature of the replacement fence, but wanted the Court to hear their views and to make orders, as enabled by s 13A of the Dividing Fences Act 1991 (NSW). I found above at [15] that part of their common boundary fence has been damaged by one of the respondents’ trees, so may make orders for the fence beyond the damaged section.
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The parties want a steel panel fence to extend from the rear of their dwellings for some 32 metres to their rear boundaries. They agree to a taller section near their dwellings, tapering down to a lower section for the rest of its length. The respondents value their privacy and wish to limit any overlooking. The applicants value their vista of the river beyond the rear boundary and do not want it blocked by a tall fence. A compromise that was discussed and reached is reflected in the orders made below.
Restricting future plantings
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The applicants asked for an order preventing the respondents planting trees within three metres of the common boundary, so as to minimise risk of further damage. The respondents are now aware of the consequences of trees close to fences, having recently incurred the cost of removing four trees. I see no need to place any such restrictions upon them, especially when other neighbours, including the applicants themselves, are not subject to such restrictions.
Orders
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As a result of the foregoing, the Court orders:
Within 90 days of the date of these orders, the respondents are to engage and pay for a fencing contractor to re-align the two displaced posts in the steel mesh common boundary fence in the front setback, and to re-align and re-attach the steel mesh panels adjoining these two posts.
On reasonable notice, the applicants are to allow any access required for the works in (1) during reasonable hours of the day.
Within 90 days of the date of these orders, the applicants and respondents are to jointly engage a fencing contractor to demolish the wooden paling fence along the common boundary in the rear part of their properties, and to replace it with a steel panel (‘Colourbond’) fence beginning between the backs of their dwellings where one panel of existing steel mesh fence must be removed, at a height of ~1.8 metres for four panels (each panel approximately 2.4 metres long), then tapering down over the next two panels (each panel approximately 2.4 metres long) to a height of 1.2–1.4 metres for the remainder of the fence. The fence must be constructed along the common boundary as recently pegged by a surveyor.
The applicants and the respondents are all to allow any access required for the works in (3) during reasonable hours of the day.
The applicants and the respondents are each to pay 50% of the cost of fencing works in (3), including any deposit required by the contractor’s terms.
The parties are granted liberty to re-list should anything prevent the completion of these orders.
……………………………….
D Galwey
Acting Commissioner of the Court
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Decision last updated: 02 December 2019
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