Gudelj v Szabo

[2021] NSWLEC 1127

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gudelj v Szabo [2021] NSWLEC 1127

Hearing dates:

9 March 2021

Date of orders:

9 March 2021

Decision date:

09 March 2021

Jurisdiction:

Class 2

Before:

Galwey AC

Decision:

The Court orders that:

(1) The application regarding Trees 1 and 2 is granted; the application regarding Trees 3-5 is refused.

(2) Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist or horticulturist (minimum AQF level 3), with all appropriate insurances, to remove Trees 1 and 2 to within 200 mm of ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

(3) The respondent is to give the applicant at least 2 days’ notice of the works.

(4) The exhibits are returned, except for Exhibits A and B.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property – damage to tiled verandah – two of five trees have caused or are likely to cause damage – orders to remove two of five trees

Legislation Cited:

Trees (Disputes Between Neighbours) Act 2006, Pt 2, ss 7, 10, 12

Cases Cited:

Black v Johnson (No 2) [2007] NSWLEC 513

Texts Cited:

Safe Work Australia, ‘Guide to managing risks of tree trimming and removal work’ (2016)

Category:

Principal judgment

Parties:

Stjepan Gudelj (Applicant)
Alexander Szabo (First Respondent)
Valentina Szabo (Second Respondent)

Representation:

S Gudelj (Litigant in Person) (Applicant)
J Lindgren (Solicitor) (Respondents)

Solicitors:
Jenkins Legal Services (Respondents)

File Number(s):

2020/312622

Publication restriction:

No

Judgment

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

Background to the application

1. In a quiet street in Metford Stjepan Gudelj (‘the applicant’) has repaired tiling on the front verandah of his dwelling. The tiled area extends to the common boundary shared with Alexander Szabo and Valentina Szabo (‘the respondents’). On the Szabos’ land, close to the boundary fence, is a row of five Italian Cypress trees (Cupressus sempervirens) (‘the trees’). Mr Gudelj has applied to the Court pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (‘the Trees Act’), seeking orders for removal of the five trees, on the basis that they caused the damage to his verandah, and are likely to cause further damage if they remain. He does not seek compensation for repairs he has completed. The Szabos dispute that their trees have caused the damage, and do not wish to remove the trees.

2. At this morning’s onsite hearing, I observed the trees and both properties. Mr Gudelj was self-represented, assisted by a friend, while Mr Lindgren represented the Szabos.

Framework for this decision

3. The relevant jurisdictional tests of the Trees Act are set out at s 10. Before making orders for any tree under Pt 2 of the Trees Act, the Court must be satisfied that:

• The applicant has made reasonable effort to reach agreement with the tree owner (s 10(1)(a));

• The tree 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 (s 10(2)).

Risk of injury is not claimed in these proceedings. The test regarding damage must be met for any individual tree before orders can be made for that tree. That is, an order to remove five trees cannot be made on the basis that only one of them is causing damage.

The applicant made reasonable effort

4. Mr Gudelj wrote to the Szabos in March 2020 outlining his concerns. The Szabos have taken no action since, and dispute Mr Gudelj’s claim that he has corresponded with them further. I am satisfied that Mr Gudelj made reasonable effort by writing to the Szabos. He does not claim compensation, so the Szabos are not being asked to pay for repairs without reasonable notice. Mr Gudelj received no indication that his concerns might be addressed.

The trees

5. The trees are 5 or more metres tall, planted in a row approximately 30 cm from the boundary fence, in a narrow bed between the Szabos’ driveway and the fence, a short distance from the property’s front boundary. They are in good condition. The Szabos said they planted the trees in 2008, although Mr Gudelj disagreed with this, saying the trees were not present when he constructed his verandah in 2010.

Two trees have caused, or are likely to cause, damage to the applicant’s property

6. Tree 1, nearest the street, stands adjacent to a fence pillar on the common boundary. Tree 2 is immediately adjacent to Mr Gudelj’s tiled verandah. Next to Trees 3-5 is a steel fence, apparently undamaged, with a concrete path between the steel fence and Mr Gudelj’s dwelling showing no signs of damage.

7. Mr Gudelj engaged arborist Stephen Williams, of Hunter Horticultural Services, to prepare a report on the trees. Mr Williams’ report of October 2020 includes photographs supplied to him by Mr Gudelj, showing the tiles during Mr Gudelj’s repair works carried out earlier in 2020. A solid concrete slab can be seen beneath the removed tiles. It is unclear from the photographs if the slab contains steel reinforcing – Mr Gudelj said it does, the Szabos disputed this. According to Mr Gudelj, small roots included in the photographs were found beneath the tiles.

8. The repaired tiles are now lifting or cracking. The most obvious sign of damage is a raised section extending for a metre or so in a line directly leading to the base of Tree 2. Mr Gudelj said this damage is caused by the tree. Mr Lindgren argued that there is no evidence of this. The Szabos suggested there are other factors that cause concrete slabs to lift in their neighbourhood.

9. Having observed the issues, I am satisfied, on the balance of probabilities, that the raised tiles on Mr Gudelj’s verandah are caused by roots of Tree 2. All other areas of concrete on these properties are undamaged. The pattern of damage is consistent with growth of a root, or roots, extending radially from Tree 2. The damage is relatively minor at present, but Mr Gudelj has already repaired the tiles once and, as root growth continues, further repairs are likely to be needed. It would be appropriate to make orders to prevent this.

10. I also observed that Tree 1 is growing against a pillar that forms part of the boundary fence. It is likely to displace this pillar in the near future. Again, it would be appropriate to make orders to prevent this.

11. I saw no damage associated with Trees 3-5, nor anything to suggest they are likely to cause damage in the near future.

12. The Szabos provided a report by arborist Bradley Magus, of Abacus Tree Services. The scope of Mr Magus’ report extended to assessing the condition of the trees and making some observations regarding property damage. He observed the tiled verandah and noted on page 15 that Trees 1 and 2 have the potential to be causing damage to the tiled area. On page 17 he concluded that there was a nexus between Trees 1 and 2 and the area of tile displacement.

13. I find that the Court has jurisdiction at s 10(2) to make orders for Trees 1 and 2, but not for Trees 3-5.

Other relevant matters

14. Before making orders I must consider matters at s 12 of the Trees Act. Relevant here is the trees’ proximity to the boundary – they are planted so close to the fence that some impacts to the fence or adjoining property might have been foreseeable at the time of planting.

15. The trees provide some privacy for the Szabos, screening parts of their property from the street. However, the need to prevent further damage by Trees 1 and 2, in my mind, outweighs their relatively minor contribution to privacy and amenity. The trees’ contribution to the environment is not significant.

16. Mr Lindgren asked the Court to consider the sequence of events – that the trees were present when the verandah was constructed – referring to the principle in Black v Johnson (No 2) [2007] NSWLEC 513 (‘Black v Johnson’). Mr Gudelj disagreed that the trees were present when he first constructed his verandah. If they were present, they were relatively small at that time. The Black v Johnson principle might be relevant in ordering apportionment of costs for any repairs, but no compensation is sought here, only removal of the trees.

17. I can see no solution to preventing further damage that would allow for the retention of Trees 1 and 2. There is insufficient room for a root barrier here.

18. As a result of the above, I will order the removal of Trees 1 and 2. There is no reason to shift the expense of this from the respondents.

Orders

19. The Court orders that:

1. The application regarding Trees 1 and 2 is granted; the application regarding Trees 3-5 is refused.

2. Within 60 days of the date of these orders the respondent is to engage and pay for a suitably qualified arborist or horticulturist (minimum AQF level 3), with all appropriate insurances, to remove Trees 1 and 2 to within 200 mm of ground level. The works are to be done in accordance with the 2016 Safe Work Australia ‘Guide to managing risks of tree trimming and removal work’.

3. The respondent is to give the applicant at least 2 days’ notice of the works.

4. The exhibits are returned, except for Exhibits A and B.

……………………………….

D Galwey

Acting Commissioner of the Court

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Decision last updated: 16 March 2021