Pennington v Siow

[2009] NSWLEC 1037

Land and Environment Court

of New South Wales

CITATION:

Pennington v Siow [2009] NSWLEC 1037

PARTIES:

APPLICANT
Allen Pennington

RESPONDENT
Chris & Aggie Siow

FILE NUMBER(S):

20841 of 2008

CORAM:

Murrell C - Fakes AC

KEY ISSUES:

TREES (NEIGHBOURS) :- removal of the tree, damage to property, injury to people

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

05/02/2009

EX TEMPORE JUDGMENT DATE:

5 February 2009

LEGAL REPRESENTATIVES:

APPLICANT
Allen Pennington, litigant in person

RESPONDENT
Chris & Aggie Siow, litigants in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

5 February 2009

20841 of 2008 Allen Pennington v Chris & Aggie Siow

JUDGMENT

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

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr Allen Pennington of 12 Tallowwood Close Alfords Point concerning a tree growing at 10 Tallowwood Close. At the time of the application, this property was owned by Mr and Mrs Siew. The property is now owned by Mr Craig Ryan. Mr Ryan had no knowledge of the application and was not formally present at the on-site hearing.

2 The tree is a healthy, mature Cupressus sp (Cypress) approximately 6 m tall. The base of the trunk is within 300 mm of the applicant’s concrete driveway and the boundary fence.

3 The applicant seeks the removal of the tree as he contends that the tree’s roots have caused the uplift of a section of the driveway. He is concerned that the subsequent difference in levels between sections of driveway is a trip hazard that may result in injury to people using the driveway.

4 The applicant also contends that roots from the tree have caused buckling of the end panel of the metal dividing fence.

5 Apart from the removal of the tree, the applicant is also seeking compensation for a number of items: $110.00 for an arborist’s report; $660.00 for the replacement of the end panel of the colour bond fence; and $2,998.00 for the removal and relaying of a section of concrete driveway. The last two items are quotes for works.

6 The applicant has lived at this address for approximately 22 years. He stated that the tree was not there when he moved in but the driveway was there. The respondents purchased 10 Tallowwood Close in 1994 and moved into the house in 1995. They stated that the tree was well-established when they moved in.

7 There was some debate between the parties as to when notice of the damage was given by the applicant to the respondents. The applicant stated that he raised the matter of the driveway (and probably the fence) at least 12 months ago. Mrs Siow stated that the issue raised related to branches from the tree obstructing access and scratching the applicant’s car. She stated that as a result of that, she had the lower branches pruned. The debate was not resolved.

8 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or injury to persons.

9 An inspection of the site confirmed that the section of driveway in question was displaced and half of the end panel of the metal fence was buckled. A large woody root (greater than 120mm in diameter) was seen and felt at the edge of the driveway and beneath the bottom rail of the fence. The root was clearly from the Cypress.

10 The Court is also required to consider a number of issues under s12 of the Act. The relevant clauses in this matter are:

(a) The tree is wholly located on the respondents’ property;
(e) The tree contributes to the scenic value of the land on which it is located.
(j) The present owner of 10 Tallowwood Close stated that he had no objections to the removal of the tree or any other order that the Court may make as long as he was not financially disadvantaged.

11 The evidence viewed on site confirmed that the tree is causing damage to the applicant’s property and there is some risk of injury to persons and therefore the issues specified in s10(2) of the Act are satisfied.

12 Therefore the orders of the Court are that the application is allowed. Specifically, the Orders are:

1. The tree is to be removed at the cost of the respondents. [Root pruning was not considered to be a suitable option as doing so would be highly likely to destabilise the tree.] The removal is to include all debris and grinding of the stump to at least 300 mm. The work is to be carried out within 60 days of the date of these orders and is to be organised by the respondents. The applicant and Mr Ryan are to be given 7 days notice of the works and the applicant is to provide all reasonable access for the works to be carried out in an efficient manner.
2. The section of concrete driveway closest to the tree and surrounded by expansion joints is to be removed and replaced; any roots found beneath the slab are to be removed prior to the pouring of the new concrete. This work is to be done within 60 days of the removal of the tree. The applicant is to forward three quotes for this work to the respondents. The respondents are to advise the applicant of their choice of quote and the applicant is to organise for the works to be done. The respondents are to pay the contractor the full sum within the required time frame on presentation of a tax invoice for the completed works.
3. The respondents are to pay 25% of the cost of the lowest of three quotes for the replacement of the end panel of fence and associated works. The amount is not to exceed $165.00. The applicant is to organise this work. The respondent is to reimburse the applicant for 25% of the cost within 21 days of the receipt of a tax invoice for the completed works.
4. No costs are to be awarded for the arborist’s report.

___________________

J Fakes
Acting Commissioner of the Court

___________________

J Murrell