Clarkson v Buda

[2010] NSWLEC 1159

Land and Environment Court

of New South Wales

CITATION:

Clarkson v Buda [2010] NSWLEC 1159

PARTIES:

APPLICANT
Mr T Clarkson

RESPONDENT
Mr J Buda

FILE NUMBER(S):

20095 of 2010

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property
Injury to persons

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

25/06/10

 
DATE OF JUDGMENT: 

25 June 2010

EX TEMPORE JUDGMENT DATE:

25 June 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr T Clarkson [litigant in person]

RESPONDENT
Mr J Buda [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

25 June 2010

20095 of 2010 Clarkson v Buda

JUDGMENT

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

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Austral Avenue Westmead against the owner of tree growing on an adjoining property.

2 The applicant is seeking the removal of the tree as he contends that the tree has caused damage to his property and poses a risk of injury to people. He is also concerned about future damage to his property.

3 The damage said to be caused by the tree is the lifting and cracking of a driveway/pathway and cracking of a brick patio and steps at the front of the applicant’s property by roots from the tree. The future damage is the potential for the roots to block the sewer and to damage the foundations.

4 The injury is the risk to elderly and less mobile occupants of the house of tripping on the cracked and lifted pavement/ driveway. The applicant contends that a member of his family who relies on a walking frame tripped on a section of the cracked pavement. The fall necessitated hospitalisation.

5 The applicant is seeking compensation of a sum of $500 for the replacement of the section of the driveway/ pathway said to have been damaged by the roots.

6 The tree is a mature Camphor Laurel growing in the front garden of the respondent’s property.

7 By way of background, the respondent is in the process of lodging a development application for the demolition of an existing dwelling and the construction of a dual occupancy on his property. The DA includes the removal of the tree. However, this is an entirely separate matter to the Court’s jurisdiction under the Trees Act.

8 Although the applicant approached the respondent’s managing agent in April 2008 about the problems of the roots and the damage to the driveway, the lack of response necessitated the applicant to undertake the replacement of the damaged path/ driveway to avoid future injury. To prove the original condition of the concrete, the applicant provided photographic evidence. Other photographs clearly show the presence of large roots beneath the concrete driveway. The sections of roots removed from the below the old pavement were inspected at the on-site hearing.

9 At the hearing, I viewed a section of root that the applicant had exposed near another section of concrete driveway some distance from the section he had previously replaced. The root was clearly from the camphor laurel. The applicant is concerned that this root may cause damage to the sewer.

10 The respondent does not dispute that the roots from the Camphor Laurel caused the damage to the path/driveway and does not dispute the claim for compensation.

11 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is likely to cause injury to any person.

12 It is clear that the roots from the tree have caused damage to the applicant’s property and are likely in the near future to cause further damage. The nature of the damage is such that it is likely to have contributed to the injury sustained by one of the occupants of the house. Therefore as several of the tests under s10(2) are satisfied, the jurisdiction is enlivened and the Court may make an order.

13 Section 9 of the Act empowers the Court to make any order it sees fit to remedy, restrain or prevent damage to property or injury to persons. The order sought by the applicant is the removal of the tree. In this matter, the damage is caused by root growth and orders will be made to limit any future damage that may be caused by the roots of this tree to the applicant’s property. As no above ground parts of this tree as yet pose a risk of damage or injury the removal of the tree will be not ordered under the jurisdiction of the Trees Act.

14 Therefore as a result of the forgoing, the Orders of the Court are:

1. The application to remove the tree is dismissed.
2. The respondent is to engage and pay for an appropriate contractor to install a root control barrier for the full length of the applicant’s driveway. The root barrier is to be installed between the dividing fence and the concrete driveway strip on the far eastern side of the applicant’s property. The root barrier is to be installed to a minimum depth of 800 mm or deeper should any root of 10 mm in diameter be encountered and must be brought to the top edge of the concrete driveway in such a way as to limit any over-growing of the barrier. The top edge of the barrier must not create a trip hazard. The contractor is to make good any damage to the surface of the soil and to the concrete driveway should any damage occur during the installation of the root barrier.
3. The works are to be completed within 90 days of the date of these orders.
4. The applicant is to provide all reasonable access for the gaining of quotes and for the carrying out of the works.
5. The respondent is to give the applicant at least 2 working days notice of the need for such access.
6. Should the tree be removed within these 90 days, orders 2-5 will expire.
7. The respondent is to pay the applicant the sum of $500 for the replacement of the damaged path/driveway within 30 days of the date of these orders.

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