Repaci v Stapleton

[2008] NSWLEC 1422

Land and Environment Court

of New South Wales

CITATION:

Repaci v Stapleton [2008] NSWLEC 1422

PARTIES:

APPLICANT
Rocco Repaci

RESPONDENT
Paul and Marian Stapleton

FILE NUMBER(S):

20743 of 2008

CORAM:

Fakes AC - Taylor C

KEY ISSUES:

Trees (Neighbours) :- Removal of tree, damage to property, compensation for damage caused.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

13/10/2008

EX TEMPORE JUDGMENT DATE:

13 October 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms G. Court, solicitor
Ms M. Francis, litigants in person
Mr V. Repaci and
Mr D. Repaci

RESPONDENT
Mr J. Lilley, Tree Management Officer
of Burwood Municipal Council

Ms M. Stapleton, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

Taylor C

13 October 2008

20743 of 2008 Rocco Repaci v Paul and Marian Stapleton

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 Rocco Repaci of 14 Fitzroy Street Croydon against a tree located at 7 Murray Street Croydon, a property owned by Mr and Mrs Stapleton.

2 Mr Repaci is overseas and was represented at the on-site hearing by his solicitor, Ms Glenys Court, and by his three children, Ms Maryanna Francis, Mr Vincento Repaci and Mr Daniel Repaci. Burwood Municipal Council was represented by its Tree Management Officer, Mr Joe Lilley.

3 The tree is a healthy mature Phoenix canariensis (Canary Island Date Palm) located at the rear of the respondents’ property. It abuts the rear wall of the applicant’s garage/carport. At least 30% of the canopy of the palm overhangs the garage roof.

4 The garage/ carport traverses the rear section of the applicant’s property and is set back approximately 100mm from the boundary of the respondents’ property. There is a small door in the rear wall of the carport that connects the two properties.

5 The applicant is seeking the removal of the palm as he contends that it has caused significant damage to the rear wall of the carport and to the tiled slab floor of the carport. He also claims that the fronds of the palm have damaged the garage roof, specifically two fibreglass panels. He is also seeking compensation for the replacement of the fibreglass panels, repair of the brickwork in the wall and step beneath the door, repair or replacement of the slab and the tiled floor, and the replacement of bricks that have been drilled by the respondent. The bricks were drilled in order to attach a light frame for an open garden structure. This has since been removed. A builder’s estimate for these works, provided by Mr Repaci, was $32,849.00.

6 The respondents state Mr Repaci first contacted them about the tree in 2006. The applicant’s representatives disputed the actual date, however, it was firmly restated by Mr Stapleton that it was 2006. The matter raised by the applicant at that time related solely to the fronds damaging the roof. The respondent agreed to keep the fronds off the roof but also brought to Mr Repaci’s attention that the damage to the fibreglass was most likely due to UV radiation and was therefore part of the normal aging of that material.

7 The next approach from Mr Repaci was in September 2007 via a telephone call that may have been made from somewhere overseas as Mr Repaci was out of the country at that time. He insisted that roots of the palm had penetrated the damp course. The respondents were unaware that Mr Repaci was away at the time of the call.

8 The respondents decided to have the tree removed and obtained an application form from Burwood Council under the Tree Preservation Order. They were led to believe that the application would have a greater chance of success if it were counter signed by Mr Repaci. Mr Stapleton sought Mr Repaci’s signature but was unsuccessful due to Mr Repaci being overseas. As a result, Mr Stapleton let the application lapse.

9 The last approach from Mr Repaci was the lodging of the application under this Act. Mr Stapleton has since sought and gained approval from Burwood Council for the removal of the tree.

10 The garage/ carport was built in 1986/87. It is double brick with a metal, clip-lock roof with two fibreglass panels. The garage occupies the western end of the building with the carport to the east. We were informed that the entire structure was constructed on the same slab and footings. It appears that the wall of the carport is separated from the wall of the garage by an expansion joint.

11 With respect to the damage, there is a crack in the mortar between the bricks over the top north-eastern corner of the doorway. The crack extends from the corner to the top of the wall in a north-easterly direction. The lack of discolouration of the mortar suggests that this crack is relatively recent.

12 The wall of the carport is displaced at its base with the wall of the garage by approximately 10-15 mm. This appears to be due to pressure exerted by the palm tree at the base of the wall of the carport.

13 The terracotta tiles, on the step beneath the small door, are cracked. Within the carport, there is some cracking of the mortar between the bricks of the steps and in some sections of the brick wall above a fixed tiled seat that has been built along the rear wall.

14 The floor of the carport appears to have been displaced by about 10-15 mm in the north-south alignment and, in essence, has ‘split’ the floor into two sections. The displacement is most noticeable at each edge.

15 Notwithstanding the apparent shearing effect, it appears that the slab of the carport may consist of two separate units, with the movement occurring in the slab closest to the tree; that is, the most westerly portion of the carport floor.

16 There are three tiles, approximately mid way on that westerly portion of the floor and adjacent to the shear plane, that are cracked and damaged. We cannot be sure that this damage is a result of the movement of the slab; it could be attributed to the dropping of a heavy object. This section of the carport is currently used as a gym and a workshop.

17 Apart from clean drill holes in some of the external bricks, no other material damage was observed in the section of wall on which the respondents had attached their garden structure.

18 The roof of the carport was inspected. The fibreglass panels are crazed, discoloured and cracked for their entire length, that is, beyond the extent of the palm fronds. The metal sheeting appears to be in good order. The condition of the fibreglass panels is as expected for panels installed 21-22 years ago.

19 No roots were shown to us or observed in any section of damp course. Further, no damp course was shown to or observed by us during the hearing.

20 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.

21 Under s. 12 of the Act, the Court must consider a number of other matters. The relevant clauses in this case are:

(a) The tree is substantially on the respondents’ property but a portion of it occupies the applicant’s property.
(e) The tree does make a contribution to the scenic value of the respondents’ property.
(h)(i) Other factors other than the tree that may have contributed to the damage include:
• The site is on reactive clay soils.
• There is no evidence of drainage along the base of the wall. The respondents advised that as this is the lowest section of their garden, that water backs up along the wall. There is also evidence in the internal wall of the eastern section of the carport that there may be an issue with rising damp.
• There is no lintel over the small doorway between the two properties.
• The carport may be on a separate slab and the rear wall of the carport is a separate structure to the garage to its west.
  (j) Given the dimensions of the palm, it is clear that it pre-dates the construction of the carport/ garage. There appears to have been ample room and opportunity to set the structure further away from the palm at the time of its building.

22 After viewing the evidence, we have come to the conclusion that the tree has caused damage to the applicant’s property. The orders of the Court are:

1. The application is upheld in part.
2. The palm is to be removed to ground level within 28 days of the date of these orders. The respondents are to pay for this.
3. After a period of at least 3 months and no longer than 6 months after the removal of the palm, the cracked mortar in the brickwork of the rear wall and steps is to be raked out and re-pointed; the cracked terra cotta tiles on the step are to be removed and replaced; the gap between the tiled floor and the brick wall of the seat nearest the step beneath the small door is to be re-grouted; the cracked grout between the two sections of tiled floor is to be replaced with an expansion joint.
4. The respondents are to organise and pay for these works.
5. The respondents are to give the applicant reasonable notice of the intended quotes and works.
6. The applicant must provide all reasonable access for the quotes and the works.

___________________

J Fakes
Acting Commissioner of the Court

___________________
Dr M Taylor
Commissioner of the Court