Barnes v Gibson
[2018] NSWLEC 1151
•22 March 2018
Land and Environment Court
New South Wales
Medium Neutral Citation: Barnes v Gibson [2018] NSWLEC 1151 Hearing dates: 22 March 2018 Date of orders: 22 March 2018 Decision date: 22 March 2018 Jurisdiction: Class 2 Before: Galwey AC Decision: (1) Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to remove both Swamp Oaks in their rear garden, to no more than 300 mm above ground level, and immediately poison any remaining stumps.
(2) The respondents are to give the applicant 7 days’ notice of the works.
(3) The applicant is to allow all access required to complete the works during reasonable hours of the day.
(4) Within 60 days of the date of these orders the applicant is to obtain and provide to the respondent three quotes for replacing only the upper area of paving (not the lower area near the dwelling) using materials of a standard similar to existing materials of concrete and paving tiles.
(5) If within 12 months of the date of these orders the applicant carries out repairs to the paving and provides the respondents with a receipted invoice for the works, the respondents are to pay the applicant 30% of the cheapest of the three quotes provided in order (4) within 14 days of receiving the receipted invoice.Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS); damage to courtyard; age and condition of structures; apportionment of rectification costs. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 (NSW) Category: Principal judgment Parties: Allan Barnes (Applicant)
Rita Gibson (First Respondent)
Stephen Gibson (Second Respondent)Representation: Counsel:
A Barnes, litigant in person (Applicant)
S Gibson, litigant in person (Respondents)
File Number(s): 353071 of 2017 Publication restriction: No
Judgment
This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.
Background
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Mr and Mrs Barnes have owned their Petersham property since 2001. Six or seven years ago they noticed some paving in their rear courtyard beginning to crack. As the cracking worsened they began to suspect root damage from two casuarina trees on the Gibsons’ property, to their south. In 2013 they sent a letter raising their concerns to the Gibsons but received no response. In 2016 they sought mediation with the Gibsons, unsuccessfully. In 2017 they engaged an arborist and engineer to investigate the damage and recommend solutions. Mr Barnes has applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’) seeking orders for removal of the trees and compensation for the costs of rectification works.
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Mr Barnes relies on a quote from McGarry Constructions for his compensation claim. The quote includes replacement of paving, replacement of retaining walls, rendering and painting, other rectification works and removal of debris, and amounts to more than $88,000.
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Mr Barnes’ application for tree removal is also based on his concerns of the trees causing injury.
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The hearing took place onsite.
Arboricultural report
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Mr Ross Jackson, consulting arborist, identifies the two neighbouring trees as Swamp Oaks (Casuarina glauca). ‘Plate 6’ of his report shows paving tiles and a section of a shallow concrete slab removed, revealing a large woody root immediately below. He identifies the root as a “tree root from Swamp Oak”, without further explanation. Given the tree’s direction of growth and proximity to the trees, I accept that it belongs to one of the Gibsons’ two Swamp Oaks.
Engineering report
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Mr Kantouros, Civil and Structural Engineer, observed the exposed tree root. He identifies root growth as the cause of damage to paving and planter bed retaining walls. However, I am not satisfied that he has demonstrated sufficiently that roots have caused damage to all elements he has identified. He suggests retaining walls could be repaired although may be damaged again if the trees are not removed. He says the paved areas need replacement.
Jurisdictional tests
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I am satisfied that the trees are on neighbouring land (s 7 of the Trees Act) and that Mr Barnes has attempted to reach some agreement with his neighbours (s 10(1)(a)). I am satisfied that roots from at least one of the Gibsons’ two Swamp Oaks grow beneath the paving and have caused damage to an area of this paving.
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I am also satisfied that both Swamp Oaks are likely to cause further damage to the Barnes’ paving and to the brick wall on the common boundary. The trees are not yet mature and will grow larger. At their closest they are 100 mm or so from the boundary wall. Therefore according to s 10(2)(a) of the Trees Act, orders can be made for both trees.
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No evidence was adduced showing that the trees are likely to fall and cause injury.
Tree removal
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To avoid future damage to the boundary wall and the Barnes’ paving, there seems no reasonable alternative to removing both trees.
Compensation
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Mr Barnes suggested that his courtyard appears to have been constructed during the 1980s. Any concrete beneath the slab is thin and lacks reinforcement.
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Mr Gibson pointed out that construction methods used for the retaining walls around garden beds were not adequate for their purpose. I accept this contention.
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I accept that the upper area of paving that holds the outdoor table and chairs has been damaged by tree roots. However, I cannot be satisfied, on the balance of probabilities, that roots have caused damage to the other elements included in the quote: the lower area of paving and retaining walls. Mr Barnes himself conceded during the hearing that he was not sure what had caused damage to these other elements. It is not clear that their condition would be significantly different in the absence of any tree root growth.
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Therefore most of the compensation sought via the quote cannot be included in any orders. Some compensation for the upper level of paving can be ordered. Having considered the condition of surrounding structures built at the same time, it seems reasonable to assume some dilapidation of the paving would have occurred over time. Some minor damage had already occurred before the Gibsons were notified. It is also possible that other neighbouring trees, including a mango tree to the west, have contributed to the damage. Considering these matters I am of the view that a reasonable contribution for the respondents to make towards any repairs would be 30% of the cost of replacing only the upper area of paved concrete.
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Of course, the Barnes may wish to carry out further works concurrently with repairs to the upper paved area, but this would be at their own expense.
Orders
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As a result of the foregoing, the orders of the Court are:
Within 60 days of the date of these orders the respondents are to engage and pay for a suitably qualified and experience arborist (minimum AQF level 3) with all appropriate insurances to remove both Swamp Oaks in their rear garden, to no more than 300 mm above ground level, and immediately poison any remaining stumps.
The respondents are to give the applicant 7 days’ notice of the works.
The applicant is to allow all access required to complete the works during reasonable hours of the day.
Within 60 days of the date of these orders the applicant is to obtain and provide to the respondents three quotes for replacing only the upper area of paving (not the lower area near the dwelling) using materials of a standard similar to existing materials of concrete and paving tiles.
If within 12 months of the date of these orders the applicant carries out repairs to the paving and provides the respondents with a receipted invoice for the works, the respondents are to pay the applicant 30% of the cheapest of the three quotes provided in order (4) within 14 days of receiving the receipted invoice.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 26 March 2018
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