Knight v Westbury
[2016] NSWLEC 1438
•22 September 2016
Land and Environment Court
New South Wales
Medium Neutral Citation: Knight v Westbury [2016] NSWLEC 1438 Hearing dates: 22 September 2016 Date of orders: 22 September 2016 Decision date: 22 September 2016 Jurisdiction: Class 2 Before: Fakes C Decision: See [20]
Catchwords: TREES [NEIGHBOURS] Damage to property, potential injury; costs of rectification; Hedge – obstruction of sunlight; Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Category: Principal judgment Parties: Pamela Knight (Applicant)
Michael Westbury (Respondent)Representation: Applicant: Mr C Duff (Solicitor)
Solicitors:
Respondent: Ms T Westbury (Agent)
Applicant: Colin J Duff Solicitor
File Number(s): 165820 of 2016
Judgment
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COMMISSIONER: The applicant has applied under both s 7 Part 2 and s 14B Part 2A of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders seeking the removal of two Cypress trees growing on the adjoining property to the north in Ramsgate Beach.
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The applicant contends that the trees have lifted pavers in her courtyard, thus causing damage, and which could create a trip hazard and thus cause injury. She is also concerned that the roots and branches of the trees may cause damage to her drainage system, fence and garden.
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Apart from the damage, the applicant submits that the trees severely obstruct sunlight to her living room and kitchen windows.
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From the evidence of both parties, it appears that at the applicant’s request, in June 2014 the trees were inspected by Rockdale Council’s Arborist. In accordance with council policy, having deemed for various reasons that the trees could be removed, the council issued a Letter of Concern and a Permit allowing removal of the trees. These were mailed to the respondent’s address, and which, for various reasons, may not have been received.
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In the months since this matter came before the Assistant Registrar for Directions, there has been correspondence between the parties.
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When the hearing commenced on site, I was informed that the two trees, including stumps and roots, had been removed. An inspection of the respondent’s property confirmed that a very thorough job had been carried out. There were no roots visible in the sandy soil.
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Therefore, as the trees have been removed, the application under s 14B must be dismissed as there is no longer any severe obstruction of sunlight to windows of the applicant’s dwelling as a consequence of the trees.
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In applications under Part 2, 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.
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As the trees have been removed they cannot cause future damage or injury. These are not trees that sucker from remaining roots.
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The remaining element of the claim under Part 2 is compensation for the cost of rectification of lifted pavers.
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Section 4(4) of the Trees Act allows applications to be made for trees that have been removed but which were present immediately before the damage or injury occurred.
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During the hearing two pavers that were elevated above the others were removed. It was clear that they have been lifted by the woody roots seen beneath them. With the arboricultural expertise I bring to the Court, I am satisfied, based on their bark, that these are roots from one of the Cypress trees and not roots from two small trees growing in the applicant’s garden.
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I am satisfied to the extent required by s 10(2) that the respondent’s tree/trees has/have caused the damage to the applicant’s property, albeit fairly minor damage. As such, the Court’s jurisdiction to consider what, if any, orders should be made is engaged.
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I observed the majority of the paving to be in good order. Approximately seven pavers in an area of about 12m2 had lifted to the point where they would pose a tripping hazard. Collectively they, and the immediately adjoining pavers, comprise about 10% of the area of affected paving. Having assessed many similar cases, the areas of lifted pavers are isolated and rectification would be a relatively simple matter of removing the lifted and adjoining pavers, cutting and removing the roots, replacing and compacting subgrade and then relaying the pavers. The extent of damage does not warrant the repaving of the entire area.
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The applicant has obtained a quote for $698.50 for the removal of lifted pavers, removal of roots, and relaying of pavers. The quote does not specify the extent of paving to be rectified. The respondent obtained an alternative quote for about $300.00.
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It was put to the parties that given the relatively small extent and degree of lifting caused by the respondent’s trees, the respondent should nonetheless make a contribution of $100.00 towards the cost of rectification but not pay the full cost.
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The respondent’s agent objected on the basis that the respondent had paid the full cost of the removal of the trees which were present when the applicant purchased her unit. Further, the agent contended that the application of water and fertiliser to the applicant’s garden would have contributed to the growth of the roots.
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The applicant’s solicitor objected in that more pavers may have to be removed in order to rectify the problem.
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Having heard the submissions and observed the extent of damage, I am satisfied that some contribution should be made but not the full extent of either quote as the work to be carried out is quite minor and does not warrant the effort of each party obtaining and exchanging quotes. I also accept that the respondent has undertaken the principal action sought by the applicant.
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Therefore, the Orders of the Court are:
The application in respect of Part 2A of the Act is dismissed.
The applicant is to engage and pay for an appropriate tradesperson to rectify the uneven paving. The work is to be completed within 90 days of the date of these orders otherwise Order (3) lapses.
The respondent is to reimburse the applicant the sum of $100 payable within 21 days of the receipt of a copy of a tax invoice for the completed works. The invoice is to be delivered to the respondent’s business address.
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Judy Fakes
Commissioner of the Court
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Decision last updated: 26 September 2016
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