Cvitanovic v Spesyvy

[2015] NSWLEC 1365

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cvitanovic & anor v Spesyvy & anor [2015] NSWLEC 1365
Hearing dates:	7 September 2015
Date of orders:	07 September 2015
Decision date:	07 September 2015
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part see [24]
Catchwords:	TREES [NEIGHBOURS] Damage to property
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 Dividing Fences Act 1991
Category:	Principal judgment
Parties:	Zdenko & Renate Cvitanovic (Applicants) Nadia & Victor Spesyvy (Respondents)
Representation:	Applicants: Z & R Cvitanovic (Litigants in person) Respondents: N & V Spesyvy (Litigants in person)
File Number(s):	20479 of 2015

Judgment

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

1. COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owners of a property in Maloney’s Beach near Batemans Bay against the owners of trees located on an adjoining property. Neither property is occupied by the owners on a permanent basis.

2. The applicants claim that the respondents’ trees have damaged the driveway/ paving on the western side of their dwelling, as well as the dividing fence between the parties’ properties.

3. The applicants are seeking Court orders requiring the respondents to pay for the replacement of the damaged paving and 70% of the replacement of the dividing fence. They are also seeking grinding of the roots that damaged the paving, removal of the trees they say have damaged the fence, and reimbursement of the cost of taking preventative action (sawing the concrete and poisoning the roots) to limit further root damage.

4. The respondents are prepared to contribute 50% of the cost of replacing the dividing fence and 50% of the costs of the concrete sawing even though they consider the applicants’ actions to be excessive. They do not wish to remove the remaining trees.

5. In applications made under Part 2 of the Act, the key jurisdictional test is found in s 10(2); this states:

(2)   The Court must not make an order under this Part unless it is satisfied that the tree concerned:

(a)   has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property, or

(b)   is likely to cause injury to any person.

6. The test must be applied to each of the trees the subject of the application. Injury is not pressed.

7. The application claim form identifies ten trees. Three trees, T1, T2 and T3 have been removed but their stumps remain. Section 4(4) enables the Act to apply to a tree that has been removed following damage (or injury) that gave rise to an application if the tree was situated wholly or principally on a respondent’s land immediately before the damage (or injury) occurred.

The paving

8. The applicants state in their application claim form that in 2009 they advised the respondents, through their real estate agent, that roots from the respondents’ trees were lifting the driveway. The respondents dispute this; in their opinion, the matter was first raised in 2012 and again in February 2014 at which time the respondents agreed that roots from trees 1-3 had growth beneath the applicants’ paving. The respondents agreed to remove the trees. According to their evidence, the respondents removed the first tree in September 2014 and the other two in December 2014.

9. Without informing the respondents, in November 2014 the applicants engaged a contractor to make a series of saw cuts through the concrete slab. Several parallel cuts were made in a north-south direction extending from the expansion joint at the north-western corner of the dwelling to the southern side of the laundry door on the western façade and across the slab in an east – west direction from the common boundary to close to the western facade. The applicants contend that this was carried out in order to prevent further lifting of the slab and to prevent root damage to the house. In addition, the applicants exposed, cut and poisoned the roots along the western edge of the slab.

10. The applicants lifted several sections of the slab to expose the soil and roots below.

11. During 2015, over a number of months, the respondents, without advising the applicants, removed roots from beneath the lifted sections of slab. They stated that the majority of the roots were in the vicinity of Tree 1 near the expansion joint between the driveway and paving near the north-western corner of the applicants’ dwelling.

12. The applicants included a number of photographs of the roots and lifted paving in their evidence. One photograph shows several large, severed, woody roots between the boundary fence and the western edge of the slab. Another photograph shows a small woody root growing in the expansion joint between the brick wall of the applicants’ dwelling and the eastern edge of the slab. The other relevant photograph shows the lifted corners of the adjoining slabs near the north-western corner of the applicants’ dwelling near the down pipe.

13. Undated photograph 12A in the respondents’ evidence, taken before the trees were removed and before the saw cuts, shows a slab in apparently good order with no obvious cracking.

Findings - paving

14. I am satisfied that the respondents were on notice about the paving since 2012 and took action to remove the trees in late 2014. I am also satisfied to the extent required by s 10(2) that the respondents’ trees caused the lifting of the slab and therefore the Court’s jurisdiction to make orders under s 9 is engaged.

15. Before considering what, if any, orders should be made, the Court must consider any relevant matters under s 12 of the Act. Most relevant is s 12(h) and actions of the parties.

16. The respondents accept that the roots contributed to the lifting but question the extent of saw cutting carried out by the applicants. They also contend that they were not given an opportunity to consider what other action may have been taken.

17. On the evidence before me I would have to agree with the respondents that the extent of saw cutting carried out by the applicants is excessive. I consider that effective root pruning could have been achieved by confining the cutting to a section of slab closest to the dividing fence and along the expansion joint between the fence and the south-western corner of the dwelling.

18. However, as the roots have caused damage to the paving, some contribution by the respondents to the cost of its replacement is reasonable.

Fence

19. The fence in question has been removed. Photographs tendered by the parties, show the fence was made of treated pine with wide horizontal slats.

20. The applicants contend that the primary cause of damage was the pressure placed on it by the respondents’ trees. The trees have been pruned so that the foliage is contained within the respondents’ property. As previously stated, the applicants want the trees removed before the fence is replaced.

21. The respondents maintain that the fence was at least 25 years old and had been poorly installed. According to their evidence, only a few of the posts were concreted into the ground, the majority were placed in shallow holes without concrete. In addition, in 2010 there was a major storm event (details included in Exhibit 1), which destabilised the fence. They maintain that the trees were used as a means of support for the fence.

22. A photograph tendered by the applicants shows whole panels of missing fence and no trees; another photograph shows overhanging foliage but nothing to demonstrate actual damage.

Findings - fence

23. There is insufficient evidence for me to be satisfied to the extent required by s 10(2) that the respondents’ trees caused the demise of the fence or indeed were such a contributing factor that may have warranted the orders sought by the applicants. As none of the tests under s 10(2) are met, the Court’s powers to make orders are not engaged. Nothing in this finding removes the remedy afforded to the parties by the Dividing Fences Act 1993.

Orders

24. As a consequence of the evidence presented by the parties and on the observations made on site, the Orders of the Court are:

1. The application is upheld in part.

2. Within 60 days of the date of these orders, the applicants are to obtain three quotes for the removal and replacement of the concrete slab paving between the expansion joint between the common boundary and the north-western corner of the applicants’ dwelling and the expansion joint to the south of the laundry door on the western façade of the applicants’ dwelling. Should they wish to do so, within this same time frame, the respondents may obtain up to three quotes for the same work. Within this time frame the parties are to exchange quotes and agree on a contractor. If no agreement can be reached, the cheapest quote is to be selected. The replacement slab is to be of the same quality as the existing slab.

3. The applicants are to provide all reasonable access on reasonable notice for the purpose of quoting and or carrying out the works in order (2).

4. The works in (2) are to be completed within 120 days of the date of these orders otherwise Order (5) lapses.

5. The respondents are to reimburse the applicants 30% of the agreed costs of the works in (2) within 21 days of the receipt of a tax invoice for the completed works.

6. Within 30 days of the date of these orders, the respondents are to reimburse the applicants the sum of $231.00 being 30% of the cost of the saw cutting invoice.

7. The application in respect of the fence is dismissed.

_______________________

Judy Fakes

Commissioner of the Court

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Decision last updated: 09 September 2015