Collaro v Tate

[2008] NSWLEC 1337

Land and Environment Court

of New South Wales

CITATION:

Collaro v Tate and ors [2008] NSWLEC 1337

PARTIES:

APPLICANT
Robert Collaro

FIRST RESPONDENT
Margaret Tate

SECOND RESPONDENT
Charles Tate

THIRD RESPONDENT
Jeannette Peters

FILE NUMBER(S):

20436 of 2008

CORAM:

Moore C - Thyer AC

KEY ISSUES:

Trees (Neighbours) :-
Statutory limitation on time for compensation claims; root bariers

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006
Limitation Act 1969

DATES OF HEARING:

28 July 2008

EX TEMPORE JUDGMENT DATE:

28 July 2008

LEGAL REPRESENTATIVES:

APPLICANT
In person

RESPONDENTS
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

28 July 2008

20436 of 2008 Robert Collaro v Margaret Tate, Charles Tate and Jeannette Peters

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1 COMMISSIONERS: In the rear of 71 Albert Street, Bexley, starting at approximately halfway in the depth of the block, grow five trees adjacent to Villa 3 in a development at 73 Albert Street. They are two Camellias, a Magnolia and two Maples.

2 The Magnolia is the most substantial of the trees and having a trunk diameter of approximately 30 cm. Mr Collaro makes an application which seeks the removal of all five of the trees and for re-paving or the costs of re-paving of the private open space of his property (Villa 3).

3 The two allotments run in a generally south-west to north-easterly direction. Mr Collaro’s paved area is a little over 2 metres in width and runs parallel to the boundary between the two properties. The total area of his paving is some 34 sq m.

4 Mr Collaro’s application for compensation is in two parts. The first is for re-laying of the whole of his paved area in 2001. That claim, as we have explained to him, is his statute barred as a consequence of the provisions of section 14(1)(d) of the Limitation Act 1969, which provides for a six-year time limit for causes of action arising under statutes, that being his cause of action in the present instance.

5 The second compensation claim which he makes has three elements. The first is $3,630 for the re-laying of the present pavers including the removal of roots, re-levelling compaction and the like. The second is $990 for the disconnection and reconnection of his air-conditioning unit which is necessary for the paving to occur and, finally, an application for compensation for the Court application fee, photocopying and photos in the sum of $241.

6 We inspected Mr Collaro’s property in company with the owners of the adjacent property. We examined a number of areas where Mr Collaro had lifted pavers exposing fine root networks. In the immediate vicinity of the Magnolia, at the front end of his private open space, Mr Collaro undertook digging, at our request, which exposed at least three substantial roots running along the line of the lifting of the paving and in the general direction of the Magnolia. That largest of these three roots was some 50 mm in diameter, on our assessment, and less than 75 mm below the surface.

7 There was general lifting and undulation across the totality of the paved area. We looked across the top of the fence in the direction of a Cypress Tree also located on the Tate’s property but close to the paved area in the villa to the south and observed no lifting or displacement of that paving of any significance (if at all). We certainly satisfied, on the extent of that observation, that we could not conclude that the roots or the lifting of the paving on Mr Collaro’s property might be occasioned by that tree.

8 We are obliged to consider a number of matters in section 10(2) of the Trees (Disputes between Neighbours) Act 2006. The first is whether the trees have caused; the second is whether they are currently causing; the third is whether they are likely in the near future cause damage to the applicant’s property; and, finally, are they a likely risk of injury to any person.

9 We are satisfied that, to the extent that we are required to so determine, the roots of all of the trees are likely to have caused damage to Mr Collaro’s property and certainly that the Magnolia has caused the lifting caused by the larger roots that were specifically exposed.

10 We are satisfied under those circumstances it is not necessary, to give us jurisdiction, for us to consider whether or not the extent of the lifting constitutes a likely risk of injury to any person, although we will return to that briefly later in our consideration.

11 It is appropriate to note, at this point, that in response to be incidents which gave rise to the claim for compensation which has been dismissed as statute barred, the Tate interests constructed a root barrier in the period 2001-2002 along the boundary with Mr Collaro’s property. The root barrier was of corrugated iron sheets embedded, we accept, some 500 mm deep which we had described to us as the reaching of the clay subsoil base. These corrugated iron sheets, we were informed, had been butted up to the concrete footings of the Colorbond fence between the properties. The corrugated iron root barrier was not continuous and it extended up to 150 mm aboveground.

12 During the course of our inspection of the Tate property, we undertook minor digging in the vicinity of the element of corrugated iron root barrier closest to and in line between the trunk of the Magnolia tree and the major roots earlier described on Mr Collaro’s property.

13 There are two observations that we would make about this. The first is that there was a gap of some 50 mm or so between the end of this corrugated iron toward the front of the property and the footing of the post of the fence. There was, therefore, a gap of that through which roots could grow unimpeded.

14 Second, during the course of the inspection, evidence was given on behalf of the Tate interests, that digging have been undertaken in the vicinity of this footing but on the side adjacent to but away from the area at which we undertook minor excavation. It was put to us that no digging had been undertaken in the area where we had excavated.

15 The Tates’ attention was drawn to a number of severed roots in the area to the front of the house where we had dug and specifically to a severed root of some 12 mm or so in diameter and to the fact that there were a number of already severed roots in the loose soil excavated. Although invited to reconsider the evidence that had been given in this regard that no excavation having been undertaken in this area, the position was repeated to us that no excavation had been undertaken in that vicinity by the Tate interests and no explanation was offered of the severed roots.

16 We specifically reject the truthfulness of this evidence that no excavation had been undertaken in that area as it is simply fundamentally contrary to the facts as discovered.

17 We have considered whether we should order removal of trees or whether a further installation of an appropriate root barrier would be an appropriate way of preventing future damage to Mr Collaro’s paved area.

18 Ms Tate has given us the evidence of the sentimental attachment to the trees felt by the family and has indicated that the family was prepared to install an appropriate root barrier if required to do so. We are satisfied that, if an appropriate root barrier is installed by an independent qualified person (and not on an amateur basis by members of the family as was the present barrier), it is likely that such a root barrier would act to prevent future damage to Mr Collaro’s property.

19 Even if that we were not sufficiently founded in our jurisdiction by the existing damage to Mr Collaro’s property, we would be satisfied that the trip hazard in the vicinity of the major roots from the Magnolia which had been exposed would themselves warrant rectification of that problem. We reject the proposition that the fact that there might be low human traffic of that area is a basis to decline to order rectification.

20 We are also satisfied, with respect to the implied submission made that Mr Collaro should himself have installed some root barrier on his side of the property boundary at the time that his 2001 re-laying took place, that would have been entirely unreasonable as we are satisfied he was entitled to rely on the representations of (and actual work done by) the Tate interests that they were to install, competently, an appropriate root barrier. We are satisfied, in that regard, that he has not, in any sense, unreasonably contributed to the damage to his own property.

21 As a result of that we have reached the conclusion that the following orders concerning the trees are appropriate:

• The application to remove the trees is refused;
• The owners of 71 Albert Street are to install a root barrier to a depth of at least 700 mm or such greater depth as is recommended by the person commissioned to install that barrier;
• The root barrier is to extend 1 m beyond Mr Collaro’s boundary to the south-west (that that is the rear boundary of his property) and that it is to extend 2 m to the north-east (that is the front of his property);
• The root barrier is to be a continuous one; and
• The root barrier is to be installed by a level AQF3 qualified Arborist with appropriate insurances.

22 We note that the parties agreed that, if such a barrier was to be installed, 90 days from the date of the Court's orders would be an appropriate period to allow for this to occur and we propose so to order.

23 We turn to the question of compensation. We accept that, consistent with the quote earlier cited and the state of the paving, it is appropriate for the entire area of Mr Collaro’s courtyard to be re-paved; that this should occur after the root barrier has been installed; and that it should involve the removal of roots, as anticipated in the quotation.

24 There are three elements of the claim for compensation in this regard. Two of them relate that necessary works to be undertaken for paving and for the removal and reconnection of the air-conditioner – these total $4620. We propose to make an order in that amount.

25 With respect to the costs claim for $241, even if we had jurisdiction to do so (which we do not), we would not be prepared to make any order for those amounts as Mr Collaro has not been entirely successful in the application that he has made and it would not be appropriate for the Court to make orders for the amount under such circumstances.

26 There was disagreement between the parties, if we were to order compensation, as to how long we should allow for such a compensation to be paid.

27 We accept, under the circumstances, that there is likely to be significant expensive in the professional installation of a continuous root barrier. We are therefore prepared to accede to the longer period of time sought by the Tate interests and order that the sum of $4620 is to be paid to Mr Collaro within 90 days of his presentation to them (by service on Ms Tate at 71 Albert Street) of a receipted invoice for the completion of the re-paving of his courtyard and for the disconnection and reconnection of his air conditioning system.

28 The orders, given the disparate nature of the ownership of the Tate property, will be for joint and several liability of all three of the owners.

Tim Moore Peter Thyer

Commissioner of the Court Acting Commissioner of the Court