Magri v Fagan
[2013] NSWLEC 1197
•15 October 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Magri v Fagan [2013] NSWLEC 1197 Hearing dates: 15 October 2013 Decision date: 15 October 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Appeal upheld in part; tree to be removed and fence repaired
Catchwords: TREES [NEIGHBOURS] Damage to property Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Category: Principal judgment Parties: Mr Albert Magri (Applicant)
Ms Mira Fagan (Respondent)Representation: Applicant: Ms S Allan (Agent)
Respondent: Ms M Fagan (Litigant in person)
File Number(s): 20591 of 2013
Judgment
COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) by the owner of a property in Smithfield against the owner of a Jacaranda growing on an adjoining property.
The applicant seeks orders for the removal of the tree and rectification of the dividing fence at the respondent's expense. Originally orders were sought for the repair of a concrete slab in the applicant's driveway however, this action was not pressed during the hearing.
The respondent has permission from Fairfield City Council for the removal of the tree but was waiting for the tree to be fully deciduous before that was undertaken.
In applications under Part 2 of the Act, the key jurisdictional test is found in s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned 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.
The level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...".
The tree is a self-sown Jacaranda thought to be no more than 15 years old. It is growing in a pocket of soil between the dividing fence and the side path along the respondent's dwelling. The applicant's driveway is on the other side of the fence.
There is a large woody root growing in the strip of soil between the path and the fence. The root has been severed relatively close to the trunk. The respondent states that she did not cut the root. Some metres from the trunk of the Jacaranda and at least a metre beyond where the end of the large root is visible, a section of the applicant's driveway has lifted about 30mm on the corner of the slab closest to the fence. However, there was no cracking or lifting along the expansion joint between the slabs immediately beside the trunk.
In order to engage the Court's jurisdiction, there must be a nexus between the tree and the damage. On the evidence, while it is certainly a theoretical possibility that the root has caused the concrete to lift, I'm not satisfied to the extent required by s 10(2) to take this element of the claim any further. Even if I considered the jurisdiction engaged, the lifting is very minor and restricted to a small section of the driveway and the 'damage' is insufficient to warrant an order of the Court.
The other element of the claim is the damage the applicant contends has been caused to the fence by the tree.
The trunk of the tree has grown against the bottom rail of the timber fence. This has caused a slight deflection off vertical but as the tree grows, this pressure is likely to cause more serious damage.
Therefore, to the extent required by s 10(2) I am satisfied that the tree could in the near future cause damage to the fence and therefore the Court's powers to make orders under s 9 are engaged.
I agree with the council that the tree should be removed. While the owner already has permission from the council to do this, there is no requirement for a tree owner to act on such permission. However, an Order of the Court requires the taking of the action specified in the order.
The fence is a timber, paling fence that is more than 22 years old. It is showing the usual signs of wear and tear that are to be expected of such a fence. Termites have damaged some rails and quite a few palings are missing or dislodged, however, overall, the fence remains functional.
In the claim form, the applicant has sought to engage s 13A of the Dividing Fences Act 1991 (the Fences Act). This enables the Court to make orders under the Fences Act for other parts of the fence that have not been damaged by the tree.
After discussing with the parties what should be done with the fence, it was agreed that rather than replacing the fence at this stage, quotes should be sought for its repair. The respondent advised that she already has two quotes for the repair of the entire fence, the cheapest quote being $600.00.
In regards to who should pay, while the respondent's tree has caused some minor displacement, the majority of the damage is a function of its age and material and therefore I have determined that each party should contribute 50% of the cost of its repair. The repairs are to be carried out after the removal of the tree.
Therefore, on this basis, the Orders of the Court are:
(1) The application is upheld in part.
(2) Within 30 days of the date of these orders the respondent is to engage and pay for an AQF level 3 arborist with appropriate insurance to remove the tree to ground level and poison the stump.
(3) The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(4) Within 30 days of the date of these orders, the parties are to obtain at least two quotes each for the repair of the entire length of the dividing paling fence on the eastern side of the applicant's property. In that time the parties are to exchange quotes and agree on the cheapest quote.
(5) Each party is to allow access to their property for the purpose of quoting and carrying out of the works in orders (2) and (4) on reasonable notice - at least two days.
(6) The applicant is to engage the nominated contractor and to organise the fencing work. As agreed, once the nominated contractor has been selected, the respondent is to pay the applicant 50% of the quote for the repairs.
(7) The fence is to be repaired within 90 days of the date of these orders.
__________________________
Judy Fakes
Commissioner of the Court
Decision last updated: 17 October 2013
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