Boustany v Kondos

[2018] NSWLEC 1194

Land and Environment Court

New South Wales

Medium Neutral Citation:	Boustany v Kondos [2018] NSWLEC 1194
Hearing dates:	19 April 2018
Date of orders:	19 April 2018
Decision date:	19 April 2018
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is dismissed.
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS); damage to garage; tree was present when garage constructed; trees can be expected to grow; absence of written communication between the parties.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Black v Johnson (No 2) [2007] NSWLEC 513
Category:	Principal judgment
Parties:	Susie Boustany (First Applicant) Ronny Boustani (Second Applicant) Georgia Kondos (First Respondent) Mary Kondos (Second Respondent)
Representation:	Susie Boustany, litigant in person (Applicants) Georgia Kondos, litigant in person (Respondents)
File Number(s):	2018/15869
Publication restriction:	No

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

Background

1. Thirty years ago, when Mrs Susie Boustany (she and Ronny Boustani are the applicants) built a garage on their Brighton-Le-Sands property, their local council required special construction methods for the section closest to a neighbouring tree. Several courses of brickwork at the base of the wall were omitted, with the wall above supported by a steel lintel spanning the tree's root buttress, allowing the garage to be constructed in its proposed location without removing the tree.

2. The neighbouring tree was a Norfolk Island Pine (Araucaria heterophylla) with the base of its stem close to or across the common boundary.

3. As might be expected of a healthy tree, the pine continued to grow. Around eight years ago the applicants first noticed the garage’s roller door became difficult to close; later they noticed a crack in the garage wall. Since then, further damage has occurred. A vertical crack extends up and through the garage wall directly above the base of the tree. This crack is wider at its top. Other cracks in the garage’s walls and piers are consistent with displacement resulting from tree growth. A crack runs from the base of the tree across the garage slab. Christopher Paunescu, an engineer engaged by Georgia Kondos and Mary Kondos (the respondents), assessed the garage and concluded these various elements of damage are due to the tree. Bayside Council’s Tree Management Officer assessed the situation when he received an application to remove the tree and concluded that the tree had damaged the garage.

4. Council advised the respondents in May 2017 that they were permitted to remove the tree. The respondents, who have owned the neighbouring property, including the tree, only since 2007, removed the tree at their expense in June 2017.

5. The applicants now seek orders from the Court, pursuant to Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), for the respondents to pay for repairing the garage. The quote they provide for this work is for $27,000.

Framework of the Trees Act

6. If I am satisfied that the tree has caused damage to the applicants’ property (s 10(2) of the Trees Act), I have the jurisdiction to make appropriate orders (s 9) after considering a range of matters set out at s 12.

The tree damaged the garage

7. Both the respondents’ engineer and Council’s officer found the tree had caused the damage, and the respondents do not dispute this. Having viewed the damage and the location of the tree at today’s onsite hearing, I have no doubt that the tree caused the damage. Therefore, according to s 10(2) I can make orders to rectify the damage. I have considered all of the matters at s 12 of the Trees Act, especially those parts of s 12(h) regarding any acts or omissions of the applicants that have contributed to the damage, and any actions taken by either party to prevent the damage.

Consideration of matters at s 12

8. In my mind, the actions of the applicants are relevant here. In Black v Johnson (No 2) [2007] NSWLEC 513, Moore C and Thyer AC set out a principle at paragraph 15 considering a structure that has been constructed close to an existing tree. I include the entire principle here.

Tree Disputes Principle

The existence of a tree prior to the construction of a structure which has subsequently been damaged by the tree is not a matter likely to be taken into consideration on the question of whether or not some order should be made for interference with or removal of that tree or other remedial work. On that question, the seriousness of the damage and any attendant risks are the primary matters for consideration.

If interference with or removal of the tree or other work is warranted because of the extent of the damage the tree has caused or risks now posed by the damage, the fact that the tree was already growing in the vicinity at the time the structure was built is a matter which may be relevant and appropriate to take into account on the question of who should undertake any work and/or apportionment of the cost of such work.

However, it will also be relevant to consider whether or not the tree was self-sown or was planted. If it was planted, consideration will need to be given to the appropriateness or otherwise of:

the type of tree planted; and

the suitability of the location in which it has been planted.

Equally, it will be relevant to consider whether the choice of location for the structure was unnecessary or avoidable or, on the other hand, if it would have been an unreasonable constraint on the development potential of the site had the existence of the tree limited that potential.

9. The tree has been removed and I must only consider who now pays for repairing the damage.

10. Clearly the applicants were aware of the tree’s presence at the time of construction. I accept the respondents’ submission that the garage could have been located further from the tree. There is space on the applicants’ property further from the boundary. What has resulted was entirely foreseeable. Up to the time that the respondents were notified of the damage, then, I see no reason to shift the costs of repairs from the applicants to the respondents.

11. If the damage had increased due to inaction by the respondents after they became cognisant of it, that might be a reason to apportion some of the repair costs to them. Mrs Boustany submitted that she first told Mary Kondos of the damage around five years ago, requesting something be done about it. During submissions she said that she had not talked to Georgia Kondos about it due to tensions between them, but she also stated that she had told Georgia of the damage around five years ago. After several years, during which time the damage worsened, the applicants wrote to Bayside Council requesting something be done about the tree.

12. Georgia Kondos submitted that she knew nothing of the damage until Council advised in writing that the tree could be removed due to the damage it was causing. She submitted that her mother, Mary, who did not attend the hearing, never mentioned any discussions with the applicants regarding the tree. The respondents removed the tree, at their expense, approximately one month after receiving Council’s letter.

13. Given the disagreement about communications, and the lack of any written correspondence, I cannot be satisfied that the respondents knew of the damage earlier than they claim. Therefore, I see no reason for any of the cost to shift to the respondents and will make no orders for compensation.

Orders are not required

14. Recommendations of the respondents’ engineer include that the garage wall should be removed and replaced. The quote from the applicants’ builder also includes removal and replacement of the wall. If access were required to the respondents’ property for repair works, it might be appropriate for the Court to make such an order. However, if the damaged wall is removed it should be possible to remove what remains of the tree’s stump from within the applicants’ property. If access is required, the parties may negotiate that. There is no evidence that the garage poses any risk of collapsing. Since the responsibility and cost for the works will remain with the applicants, and there is no need for urgent works, it is unnecessary for the Court to make any orders.

Orders

15. As a result of the foregoing, the application is dismissed.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 20 April 2018