Habusi Pty Ltd v New South Wales Land and Housing Corporation

[2024] NSWLEC 1850

Land and Environment Court

New South Wales

Medium Neutral Citation:

Habusi Pty Ltd v New South Wales Land and Housing Corporation [2024] NSWLEC 1850

Hearing dates:

02 September 2024

Date of orders:

02 September 2024

Decision date:

02 September 2024

Jurisdiction:

Class 2

Before:

Douglas AC

Decision:

The Court orders:

(1) Without admission and in full and final settlement of the proceedings, within four weeks of the date of these orders:

(a) The Respondent, at its own expense, is to grind the stump of the tree the subject of these proceedings, to between 400mm and 600mm below natural ground level.

(b) The Respondent is to pay the Applicants $880.00 to the Applicants' nominated bank account.

(c) Each party is to pay its own costs of and incidental to these proceedings.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage from tree roots – apprehension of further damage and injury to persons

Legislation Cited:

Trees (Disputes between Neighbours) Act 2006, Pt 2 ss 7, 8, 9, 10, 12

Cases Cited:

Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152

Category:

Principal judgment

Parties:

Habusi Pty Ltd (First Applicant)
David Polonsky (Second Applicant)
Linda Polonsky (Third Applicant)
New South Wales Land and Housing Corporation (Respondent)

Representation:

J Vahl (Agent) (Applicants)
C Fryer (Solicitor) (Respondent)

Solicitors:
DCJ Legal (Respondent)

File Number(s):

2024/235433

Publication restriction:

Nil

JUDGMENT

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

Background

1. COMMISSIONER: This is an application, pursuant to s 7 of Pt 2 of the Trees (Disputes between Neighbours) Act 2006 (the Trees Act) by Habusi Pty Ltd, David Polonsky, and Linda Polonsky (the applicants). The applicants, who own a property in Leichhardt, contended that roots of a tree growing in an adjacent neighbouring property leased by the NSW Land and Housing Corporation (the respondent) were damaging their concrete driveway and causing a trip hazard. Consequently, the application proposed removal of the tree and compensation for driveway damage. The tree is a Broad-Leaved Privet (Ligustrum sp).

2. The application included an email from William Vahl, a Director of Habusi Pty Ltd, to ‘Carolyn’ at Inner West Tenancy at the NSW Department of Communities and Justice (DCJ), dated 22 April 2024. The email outlined that the applicants’ co-owned property is a “three-storey residential flat building”, that upper branches of the tree were intruding onto the balconies of the third-floor units, and that uplift of part of the concrete driveway adjacent to the properties’ common boundary fence line appeared likely to be caused by the tree’s roots. Mr Vahl proposed that the respondent remove the tree as soon as possible and compensate the owners for the cost of rectifying the damage to the driveway.

3. The application was lodged with the Court on 26 June 2024. On 2 August 2024, Ms Fryer, Solicitor of DCJ legal, advised the Court of having instructions to act for the respondent and lodged a Notice of Appearance on 6 August 2024.

4. On 27 August 2024, Ms Fryer informed the Court that the parties had “reached an agreement in resolution of the proceedings and entered into attached consent orders” and requested the hearing of 2 September 2024 to be vacated.

5. In keeping with standard procedure in cases under the Trees Act, the agreement between the parties does not vacate the hearing. Attendance by the allocated Commissioner is required to clarify and ensure the lawfulness of the proposed Orders by consent of the parties.

The on-site hearing

6. The on-site hearing was held at 9am on 2 September 2024 with Mr Jules Vahl, a Director of Habusi Pty Ltd, acting as agent for the applicants. Mr D Polonsky and Ms L Polonsky provided signed statements authorising “Stephen William Vahl and/or Jules Peter Vahl” to represent them. Ms Fryer represented the respondent.

7. Upon inspecting the respondent’s property, I observed that the tree’s canopy and trunk had been removed prior to the hearing, leaving a large residual stump close to the common boundary. The uplifted concrete of the driveway was located beyond the boundary fence in close proximity to the tree stump.

8. The orders proposed by consent of the parties:

“Without admission and in full and final settlement of the proceedings, within four (4) weeks of the date of these orders:

(1) The Respondent, at its own expense, is to grind the stump of the tree the subject of these proceedings, to between 400mm and 600mm below natural ground level.

(2) The Respondent is to pay the Applicants $880.00 to the Applicants' nominated bank account.

(3) Each party is to pay its own costs of and incidental to these proceedings.

Note: The Court notes that the tree the subject of these proceedings has been removed by the Respondent and the stump of the tree remains.”

Jurisdictional requirements

9. With respect to s 7, an owner of land may apply to the Court for an order to remedy, restrain or prevent damage to property on the land, or to prevent injury to any person, as a consequence of a tree to which the Trees Act applies that is situated on adjoining land. The applicants provided a copy of Title Search from NSW Land Registry Services dated 24 July 2024 showing ownership of their property shared by the three applicants. The applicants sought to remedy damage, and prevent injury to persons, resulting from the tree.

10. The base of the tree subject of the application was on adjoining land but the tree’s canopy and trunk had been removed before the hearing. In Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152, Preston CJ discussed a tree of this nature; at [147]:

“[147] The requirement that there still be a tree to which the Act applies situated on the land at the time of making an application under s 7 of the Trees (Disputes

Between Neighbours) Act 2006 does not, however, mean that the whole of a tree still needs to be situated on the land. The concept of a “tree” is wide enough to include a tree that has been reduced to a bare trunk or a stump that is still connected to the soil of the land.”

Consequently, s 7 of the Trees Act was engaged.

11. Section 8(1) of the Trees Act is satisfied as Mr Jules Vahl provided an Affidavit of Service of the application and the orders sought on the respondent (s 8(1)(a)), and on Inner West Council (Council) (s 8(1)(b)), dated 8 August 2024.

12. The Court’s ability to make orders is limited, at s 10 of the Trees Act.

10 Matters of which Court must be satisfied before making an order

(1) The Court must not make an order under this Part unless it is satisfied:

(a) that the applicant has made a reasonable effort to reach agreement with the owner of the land on which the tree is situated, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 8.

(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.

13. If the jurisdictional tests at s 10 of the Trees Act are satisfied, the Court can make orders such as those at s 9 to remedy, restrain or prevent damage to property, or to prevent injury to a person, as a consequence of the tree. Before determining the nature of any orders, the Court must consider a range of matters set out at s 12 of the Trees Act.

Reasonable effort to reach agreement

14. Although barely two months had elapsed between Mr William Vahl’s email of 22 April 2024 to the DCJ requesting tree removal and compensation and lodgement of the application on 26 June 2024, and no evidence of prior communication was provided, the reasonable effort to reach agreement required of the applicants may continue up until the final hearing and resolution of the matter. As the case file contained the Respondent’s Proposed Orders to remove the tree dated 19 August 2024, and Proposed Consent Orders for removal of the tree and compensation for driveway damage dated 21 August 2024 and signed by all parties, I am satisfied that the applicants made a reasonable effort to reach agreement, such that s 10(1)(a) of the Trees Act is engaged.

15. Section 10(1)(b) was also engaged through satisfaction of s 8 by Mr Jules Vahl. The principal jurisdictional tests are next, at s 10(2) of the Trees Act.

Damage caused by the tree

16. Considering the large size of the residual stump of the tree, the apparent direction of primary roots emerging from the stump, the location of the uplifted concrete beyond the common boundary fence but in close proximity to the stump, and the absence of any other reasonable cause of the concrete driveway damage, I was satisfied that the tree’s roots had caused the damage. Therefore, s 10(2)(a) of the Trees Act is engaged.

Risk of injury to persons

17. While I was satisfied the uplifted concrete presented a possible risk of injury to persons at night, as the area of concrete damage was relatively small and isolated near the driveway’s edge, I considered such risk to be relatively minor and one that may be mitigated through bright paint on the concrete or alerting pedestrians with witches’ hats or some similar warning mechanism. I was consequently not satisfied the risk of injury to persons was sufficient to engage s 10(2)(b), but only one of the four possible conditions of past, present, or near future damage, or personal injury under s 10(2) must be satisfied to meet the jurisdictional requirement. Therefore, s 10(2) of the Trees Act was engaged.

18. With s 10 satisfied, in order to determine, what, if any, orders should be made, the Court must consider relevant matters in s 12 of the Trees Act. Having contemplated the various elements in s 12 with respect to the residual stump of the tree located in close proximity to damage the tree’s roots had caused, I found no constraint to the lawfulness of the consent orders proposed by the parties.

Notations

19. The “Note” at the conclusion of the parties’ proposed consent orders, at [8], is inconsistent with the usual format of orders made by the Court, thus I have alternatively included it below.

20. The Court notes that the tree the subject of these proceedings has been removed by the Respondent and the stump of the tree remains.

Orders

21. The Court orders:

1. Without admission and in full and final settlement of the proceedings, within four weeks of the date of these orders:

1. The Respondent, at its own expense, is to grind the stump of the tree the subject of these proceedings, to between 400mm and 600mm below natural ground level.

2. The Respondent is to pay the Applicants $880.00 to the Applicants' nominated bank account.

3. Each party is to pay its own costs of and incidental to these proceedings.

J Douglas

Acting Commissioner of the Court

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Decision last updated: 21 January 2025