McLevie v Anderson

[2010] NSWLEC 1091

Land and Environment Court

of New South Wales

CITATION:	McLevie & anor v Anderson [2010] NSWLEC 1091
PARTIES:	APPLICANTS S McLevie & E Blatchford RESPONDENT M Anderson
FILE NUMBER(S):	20106 of 2010
CORAM:	Moore SC
KEY ISSUES:	TREES (NEIGHBOURS) :-
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	12 April 2010
EX TEMPORE JUDGMENT DATE:	12 April 2010
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENT Mr M McMahon, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE SC

12 April 2010

20106 of 2010 McLevie & anor v Anderson

JUDGMENT

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

1 SENIOR COMMISSIONER: Mr McLevie has made an application to the Court pursuant to the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) concerning a Kaffir Plum tree located on the property at 30 Burton Street, Glebe – adjacent to his property,.

2 At commencement of the on-site hearing, Mr McLevie informed me that his wife, Elisabeth Blatchford, was a co-owner of the property. By consent she was joined as an applicant in these proceedings. The respondent, Ms Anderson, is the sole proprietor of 30 Burton Street.

3 The history of the ownership of the affected property is that the applicants purchased it in early 2004 and the crack about which they seek relief was not revealed to them until they moved in to occupy the property in May 2009 – the property having been tenanted during the intervening period of time. The crack in the lower level wall adjacent to 30 Burton Street was concealed by a built-in desk, shelving and cupboard and was not disclosed to the present owners by either their pre-purchase report or by any report by their agent during any property inspection while the property was tenanted. Mr McLevie gave uncontradicted evidence to this effect. It was also not detected by Sydney City Council when they undertook an inspection for a building certificate.

4 The present owners moved into the premises in May 2009 and, by necessary inference, demolished the built-in shelving and desk. The crack then became apparent to them. I am satisfied from the correspondence that has been provided to the Court and tendered in the proceedings that they promptly notified Ms Anderson of the crack. The consequence of that history is that there is no disentitling delay by the owners of 28 Burton Street with respect to their seeking rectification of the crack and of its causes.

5 I have had the opportunity this morning of inspecting the Kaffir Plum tree and the crack and of reading Statements of Evidence and reports from Mr Stokes, a structural engineer, and Mr Laverty, an arborist, on behalf of the applicants and Mr O'Neill, an engineer, on behalf of the respondent. I have also had the advantage of Mr O'Neill's oral evidence during the course of the hearing. All three of these evidentiary elements concluded that, (paraphrasing their evidence) on the balance of probabilities - that being that which is necessary in these proceedings, it is sufficiently likely that the cracking in 28 Burton Street is caused, if not solely, dominantly, by the action of the growth of the tree and of its root system. As a consequence, the first test in s 10(2)(a) of the Trees Act [that is that the tree which is the subject of the application has caused damage to the applicants’ property] is satisfied and I have jurisdiction to deal with the matter.

6 In these proceedings, the applicants seek an order for removal of the tree and the respondent consents to such an order being made. In the circumstances, I am satisfied that the damage has been caused by the tree and I am also satisfied, on the basis of Mr Laverty's report and the evidence given by Mr O'Neill during the course of the site hearing, that it is probable that, if the tree is not removed, there will be an on-going exacerbation of the cracking.

7 Although the tree may not, as earlier indicated, be the sole cause of that cracking, it is the dominant cause. The consequence of that is that I am satisfied, under the circumstances, that I should agree to make an order for removal of the tree. Mr McMahon, solicitor for the respondent, proposes that that removal should be carried out within three months of the date of the orders and that is not resisted by the applicants.

8 I therefore propose to order the removal of the Kaffir Plum tree within 90 days of the date of these orders and to require that it be undertaken by an arborist with AQF level III qualifications with appropriate WorkCover insurances.

9 The parties were agreed that such removal should also be supervised by a structural engineer and I will so order.

10 The only particular argument concerning the removal of the tree was who should bear the cost of it. I am satisfied that the tree is wholly located on the respondent's property; that there has been no delay in drawing the damage to her attention for the circumstances earlier outlined; and there is no other contributory causal factor by the applicants. There is, therefore, in my view, nothing that would entitle the respondent to seek any contribution from the applicants to the cost of the removal and I will order that the removal of the tree be entirely at the respondents expense.

11 There are two other consequential matters with which I need to deal. The first is the question of damage to a television aerial on the applicants property that has been occasioned by the Kaffir Plum. The agreed position of the parties is that the respondent will meet to a maximum of $240 of the cost of replacement of the television aerial. The formal orders of the Court will provide that such a cost be reimbursed to a maximum of $240 within 60 days of the serving on the respondent of a receipted account by the applicants for the replacement of the television aerial.

12 The only matter that remains for me to determine is whether or not I should order any rectification works to the interior of the applicants’ property. In the course of the hearing, I heard evidence from Mr O'Neill about a system of rectification that would not only have the effect of that removing the unsightly crack but would add a modest amount of additional structural strengthening to the wall. That would involve the insertion of wires in the bedding joints at approximately 4 course intervals and the re-mortaring of those joints and filling of the crack. He provided an estimate - doing the best he could under the circumstances without notice - a cost of $4000 or so for the carrying out of that work.

13 I am satisfied that I should order that such work be undertaken for similar reasons as I have earlier given concerning the cost of removal of the tree. As there is no basis upon which I could order that the applicants make any contribution to that cost, it is reasonable therefore that I make an order that an amount (allowing a modest sum for contingency) should be reimbursed to the applicants for the carrying out of that work and I proposed to allow 120 days for the carrying out of that work and to require that, upon the service of a receipted account on the respondent, she be required to reimburse the applicants a maximum of $4500 for rectification works to the internal wall.

14 Finally Mr McLevie, during the course whose closing submissions asked that I make an order that would permit him to have revised plans undertaken by his structural engineer, Mr Stokes, whose original rectification proposal would involve work on the neighbouring property. I would not be permitted to order such works within the jurisdiction of the legislation.

15 I am not satisfied that it is appropriate to allow that to occur. I am satisfied that, had he wished to do that (he having indicated to me during the course of proceedings that he was aware of the fact that work would be required to be carried out on the adjacent property and had contemplated but had not effected of the getting of plans for having such work carried out entirely on his property), he could have done so prior to this hearing. As he did not do so, I do not propose to make any orders of that nature.

16 The orders of the Court, therefore, are:

1. The Kaffir Plum tree located on 30 Burton Street, Glebe is to be removed within 90 days of the date of these orders;
2. The removal is to be undertaken by an arborist with AQF level III qualifications and appropriate WorkCover insurances.
3. The removal in (1) is to be supervised by a structural engineer;
4. The removal in (1) is to be entirely at the respondent’s expense;
5. The applicants are to be reimbursed to a maximum of $240 within 60 days of the serving on the respondent of a receipted account by the applicants for the replacement of the applicants’ television aerial;
6. The applicants are to cause the crack in their dwelling caused by the Kaffir Plum tree to be rectified by the insertion of wires in the bedding joints at approximately 4 course intervals and the re-mortaring of those joints and filling of the crack;
7. The work in (6) is to be carried out within 120 days of the date of these orders;
8. The applicants are to be reimbursed to a maximum of $4500 within 60 days of the serving on the respondent of a receipted account by the applicants for the carrying out of the work in (6); and
9. If the work in (6) is not carried out within 120 days of the date of these orders and a receipted account is not served on the respondent by the applicants for the carrying out of the work in (6) within 180 days of the date of these orders, order (8) lapses.

Tim Moore
Senior Commissioner