Munday v Khoudair and Moussa

[2009] NSWLEC 1031

Land and Environment Court

of New South Wales

CITATION:

Munday v Khoudair and Moussa [2009] NSWLEC 1031

PARTIES:

APPLICANT
Mr Craig Munday

RESPONDENT
Ms Jeanette Khoudair and
Mr George Moussa

FILE NUMBER(S):

21145 of 2008

CORAM:

Taylor C - Thyer AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of the three Silky Oak trees, compensation for damage caused to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

30/01/2009

EX TEMPORE JUDGMENT DATE:

31 January 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr C. Munday, litigant in person

RESPONDENT
Mr Chris Rahib, solicitor
of Oxford Legal

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Taylor C, Thyer AC

30th January 2009

21145 of 2008 Munday, Craig, v Khoudair, J. and Moussa, G.

Background

1 Mr Munday, the owner of 32 Daniel Street, Granville, made an application under the Trees(Disputes Between Neighbours) Act 2006 on 14th November 2008. Mr Munday seeks orders for removal of the three Silky Oak trees growing on the property of Ms Khoudair and Mr Moussa at 75 Woodville Road, Granville and compensation for the repair of damage caused by the trees to his property.

2 The claim for compensation was supported by estimates for repair works to the paving, brickwork, steps, internal house wall plastering and piers to 32 Daniel Street.

3 At the on-site hearing on 30th January 2009 the applicant Mr Munday and his partner Ms Paola Alvarez were present. Mr Moussa attended on behalf of the respondents and was represented by Mr Chris Rahib of Oxford Legal, Harris Park.

4 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are:

Has the tree caused damage to the applicant's property?
Is the tree now causing damage to the applicant's property?
Is the tree likely in the near future to cause damage to the applicant's property?
Is the tree likely to cause injury to any person?

5 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of:

Is the damage or risk sufficiently serious to warrant the Court intervening?
If so, what should the Court order?
Who should pay to carry out those orders?

6 In addition, in determining an application, the Court is required to consider the matters in s 12 of the Act, where relevant.

The trees and damage to the house

7 Our inspection of the trees and of 32 Daniel Street indicated that the Silky Oak trees were likely to have caused damage to the footpath on Mr Munday’s property and the boundary fence and concrete pavement on Mr Munday’s property immediately adjacent to the trees. On this basis we were satisfied that the claim did meet some of the tests in s 10(2)(a) of the Act and we would be able to make orders accordingly.

8 The cause, source and responsibility for other damage allegedly arising from the Silky Oak trees including cracking to house footing brick work, house steps, roof tiles and internal roof plaster due to broken roof tiles was also considered.

9 During the proceedings it became clear that the evidence for the damage to the brickwork and the concrete steps to the property was equivocal and difficult to substantiate. We also noted that the house was in general poor repair and that the applicant was proposing to rectify the degraded the house piers.

10 It was evident that the three Silky Oaks on the Khoudair-Moussa property were mature and must have had branches growing across Mr Munday’s house for many years. Mr Munday accepted that he could have taken action to trim the overhanging branches that touched the roof and tiles of his house in order to mitigate potential damage problems, such as that which had occurred to his roof and internal plasterwork.

11 In light of our observations and comments, the parties agreed to conciliate regarding the payment of costs for the damage to 32 Daniel Street as well as for costs for the removal of the Silky Oak trees and the necessary replacement of the dilapidated boundary fence. The agreed costs between the parties for repairs to Mr Munday’s property were limited to the damage to the concrete pavement (~1 m2) arising from the Silky Oak root growth. As a result we were able to make the following consent orders.

Consent Orders

The determination in 21145 of 2008 is that the application is upheld in part and that the court will issue makes the following orders by consent of the parties:

a Mr Moussa shall remove the three Silky Oaks trees adjacent to the common boundary by 31st March 2009. This work shall include grinding of the stumps to 300 mm below ground level. In addition, this work is to also include removal of the root growing into Mr Munday’s property to the edge of the undamaged slab at the base of the steps of 32 Daniel Street.

b Mr Munday shall remove the Silky Oak and privet tree near the southwest corner of his house by 31st March 2009 and grind the stumps to 300 mm below ground level.

c The works in (a) and (b) shall be carried out by an AQF Level 3 Arborist with suitable insurances. Each party shall grant access over their property for the contractors to carry out their work. The work shall take place at reasonable times with at least one weeks notice and each owner may supervise activities on their property

d Mr Moussa shall pay to Mr Munday $400 by 31st March 2009 in full and final settlement of all claims relating to damage from the Silky Oak trees to Mr Munday’s property.

e A new 1.8 m high timber paling fence shall be constructed for the full length of the common boundary, being approximately 18 m by April 30th 2009. The parties shall obtain three quotes and chose the lowest of the quotes unless both parties agree to a different quote. Each party shall pay 50 % of the agreed contract price directly to the fence contractor.

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Dr Mark Taylor
Commissioner of the Court

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