Alegounarias v Williams; Barnes v Williams

[2012] NSWLEC 1052

Land and Environment Court

New South Wales

Medium Neutral Citation:	Alegounarias v Williams; Barnes v Williams; [2012] NSWLEC 1052
Hearing dates:	9 March 2012
Decision date:	09 March 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application to remove tree upheld; consent orders
Catchwords:	TREES [NEIGHBOURS] Damage to property; consent orders to remove tree; applicants to pay
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Category:	Principal judgment
Parties:	Mr T Alegounarias (Applicant: 21041 of 2011) Mr M Barnes (Applicant: 21042 of 2011) Mr P and Mrs J Williams (Respondents - both matters)
Representation:	Applicant - 21041/11 Mr T Alegounarias (Litigant in person) Applicant - 21042/11 Mr M Barnes (Litigant in person) Respondents: Mr S Nash (Barrister) Respondents: MRM Thompson Norrie
File Number(s):	21041 of 2011; 21042 of 2011

Judgment

1. COMMISSIONER: These are two applications under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of two properties in Summer Hill that adjoin the Williams property. The applicants are seeking the removal of a mature Camphor Laurel growing along the rear boundary of the respondents' property.

1. The applications are made on the basis the roots of the tree have caused damage to a brick garage at the rear of the Barnes property; one wall of the garage is on the Alegounaris property. The common wall is cracked from floor to ceiling; and two of the walls have been pushed off their footings.

1. All parties engaged consulting structural engineers and arborists to inspect the damage and prepare reports. Whilst there are some other contributing factors, the engineers agree that some of the damage is due to the tree.

1. The parties propose consent orders requiring the applicants to engage and pay for an arborist to remove the tree and the stump. However, before agreeing to make the orders the parties seek, the Court must be satisfied it has the jurisdiction to do so.

1. The key jurisdictional test in regard to applications made under Part 2, is satisfaction of at least one of four tests under s 10(2) of the Act. This section states that the Court must not make an order under this Part unless it is satisfied that the tree the subject of the application has caused, is causing, or could in the near future cause, damage to the applicant's property or injury to any person.

1. In order to be satisfied, I inspected the tree and the damage. I concur with the findings of the parties' experts and I am satisfied of the nexus between the tree and the damaged garage and that the proposed orders are appropriate. There is no practical way of rectifying the damage to the garage and of preventing future damage without the severing of major structural roots; to do so would render the tree unstable and a risk to people and property.

1. Therefore, by consent, the Orders of the Court are:

(1)   The application to remove the tree is upheld.

(2)   Within 90 days of the date of these orders, the applicants in matters 21041 and 21042 of 2011 are to engage and pay for an AQF level 3 arborist with membership of an arboricultural industry association and appropriate levels and types of insurance to remove the tree, its stump and surface woody roots to a depth of 300 mm below ground. The remaining severed roots are to be poisoned to prevent regrowth.

(3)   The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry .

(4)   The respondents are to provide access at reasonable times and on reasonable notice for the purpose of quoting and for the work to be carried out in a safe and efficient manner.

(5)   Save for making an application under the Dividing Fences Act 1991, the applicants release the respondents from any current or future claims for damage caused to their property or loss suffered as a result of the tree, the removal of the tree, and or the associated work. The applicants agree that this may be pleased as a bar to any claim or proceedings commenced against the respondents.

____________________________

J Fakes

Commissioner of the Court