Jefford v Shubert

[2007] NSWLEC 547

Land and Environment Court

of New South Wales

CITATION:

Jefford v Shubert [2007] NSWLEC 547

PARTIES:

APPLICANT
Gabriela Jefford

RESPONDENT
Brian Shubert

FILE NUMBER(S):

20593 of 2007

CORAM:

Hussey C

KEY ISSUES:

Trees (Neighbours) :- Removal of tree, damage to neighbouring pergola and retaining wall, compensation

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

22/08/2007

EX TEMPORE JUDGMENT DATE:

22 August 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms G. Jefford, litigant in person

RESPONDENT
Mr and Mrs Shubert, litiants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

22 August 2007

20593 of 2007 Gabriela Jefford v Brian Shubert

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This is Matter No. 20593 of 2007 and it is an application under s 7 of the Trees (Disputes between Neighbours) Act 2006. The application is made by Mrs G. Jefford of No. 2/5 Beunavista Drive, Bilambil Heights concerning trees on a neighbouring property owned by Mr & Mrs Shubert and the address of this property (subject property) is No. 2 Nairana Court, Bilambil Heights.

2 The main tree, which is the subject of this application is a large privet tree that is situated approximately 1 metre inside the subject property and adjacent to the applicants rear pergola area. The applicant claims that the branches from the privet tree that overhang the common boundary have broken part of the pergolas alsynite roof and the cost of repairs should be paid by Mr & Mrs Schubert. Although it has been clarified today that some of this alleged damage was caused by a pointcentia tree that previously existed in the rear of the property and that has been removed.

3 The second part of the claim is that the roots of the privet tree have caused damage to the brick retaining wall along the applicants outdoor entertaining area.

4 Both of these properties have been inspected this morning and I note that the branches from the privet tree that were supposed to have caused the damage have been removed. Notwithstanding this, I have inspected the pergola and damage to the retaining wall, which is adjacent to the outdoor entertaining area.

5 Pursuant to s 106 of the Trees (Disputes Between Neighbours) Act I am satisfied that the overhanging branches have caused damage to parts of the pergola structure. I am also satisfied that the roots observed from the privet, have most likely contributed to the cracking and movement in the retaining wall, considering the localised section of the damage, in proximity to the tree trunk.

6 After this inspection, the neighbours have agreed that the privet tree should be removed. On this basis, the concern about future damage to both the pergola and also the brick retaining wall should be removed. In the circumstances of this case, I am satisfied that it is an appropriate course of action for this tree to be removed.

7 That leaves the outstanding matter of compensation (if any) for the damages claim. Quotes have been obtained by Mrs Jefford for the rectification of the pergola area and repairs to the retaining wall. The quotes for the pergola included costs components for repairing the wooden structure of the pergola, particularly that section where the alsynite roof has been removed. However on inspection, I do not consider it necessary to repair that part of the structure, as it appears to be structurally adequate, considering its age and the apparent lack of damage from tree branch impacts.

8 The necessary repairs do however involve the replacement of the removed section of the alsynite roof and the removal/replacement of the remaining roof section, which is damaged and has holes in, which I accept that the overhanging branches could have contributed to this damage.

9 Mrs Jefford has submitted various quotes for these repairs (RBS $1650), which includes the aforementioned repairs to the structure. Mr Schubert challenged the total costs claimed. He says he has experience in this area and advises the Court that cost of similar material for this pergola area is in the order of $270.00 plus $30.00 for fixing screws and there will be about $200.00 involved for the labour to replace the roof material i.e. a total cost of about $500.00.

10 Taking into account that the alsynite over the pergola area is in the order of 12 years old and that this material deteriorates over time, I consider it reasonable that an allowance be made for the deterioration of the material, rather than the respondent being responsible for the total replacement costs of the new material. Therefore I am satisfied that it is reasonable that there be a 50/50 split on the cost of replacing the alsynite sheeting (i.e. total cost of $500), whereby each party is responsible for $250.00.

11 The other outstanding component is the brick retaining wall. As I have stated, I am satisfied that the privet tree has contributed to the damage of this brick wall, due to the localised area of the damage near the tree trunk. Although it is reasonable to ask in accordance with the usual practice of the Court, whether the applicant has taken any remedial action or checked to be sure of the damage caused by this tree. This would cover the situation as to whether the retaining wall was adequately founded and drained to cope with normal earth and water bearing pressures.

12 Unfortunately no detailed structural evaluation of the retaining wall has been undertaken for the Courts consideration and consequently I am not completely certain that the tree roots have been totally responsible for all the damage claimed. Under these circumstance, one aspect that I would be concerned about is whether proper agricultural lines have been laid behind the retaining wall to maintain the stability, however this has not been conclusively established. Therefore, I consider that a reasonable apportionment of costs in this case is 70/30, with the property owners (Mr & Mrs Schubert) paying the 70%, which is in the order of $1000.00, based on my interpolation of the repair quotes and the Court then makes the following orders.

1. The subject property owners Mr and Mrs Shubert are to remove the privet tree within 30 days.
2. The subject property owners Mr and Mrs Shubert are to pay compensation for the damage rectification of the pergola in the sum of $250.00 and for 70% of the retaining wall, which is $1000.00, with the total compensation of $1250.00 to be paid within 30 days.

___________________

R Hussey
Commissioner of the Court
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