Resevsky v Smith & Di Stefano

[2007] NSWLEC 519

Land and Environment Court

of New South Wales

CITATION:	Resevsky & anor v Smith & Di Stefano [2007] NSWLEC 519 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANTS Mark & Andrea Resevsky RESPONDENTS Ian Smith & Rose Di Stefano
FILE NUMBER(S):	20616 of 2007
CORAM:	Moore C - Thyer AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Decay Damaged boundary wall
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	31 July 2007
EX TEMPORE JUDGMENT DATE:	31 July 2007
LEGAL REPRESENTATIVES:	APPLICANTS In person RESPONDENTS First respondent in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
THYER AC

31 July 2007

07/20616 Mark & Andrea Resevsky v Ian Smith & Rose Di Stefano

JUDGMENT

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

The consequence of the Court’s decision in this application is the making of formal orders pursuant to s 9 of the Trees (Disputes Between Neighbours) Act 2006 . These orders are not reproduced as part of this decision but a copy the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

2 The application is made by Mr and Mrs Resevsky, residents of 5 The Quarterdeck, Merewether Heights, concerning two trees located on an adjacent property to the south. This property is 14 Elsworth Parade. Mr Smith and Ms Di Stefano own this property.

3 The two trees are located at approximately two thirds of the depth of the northern boundary of the Elsworth Parade properly.

4 The larger of the two trees is on the boundary at the point where 3 and 5 The Quarterdeck adjoin 14 Elsworth Parade. This tree is likely to be a Grey Gum (Eucalyptus punctata) (the Grey Gum).

5 We have carefully examined the Grey Gum. We are satisfied that there are a number of matters which are of concern about this tree.

6 The first is that there is a significant amount of deadwood in the canopy – deadwood of up to about 150 mm in diameter.

7 Next, at about 6 m above the ground on the north-western side of this tree, there has been a major limb failure. This still attached but failed limb is resting on the second of the trees which is subject to the Resevskys’ application.

8 The limb which has failed is overhanging a portion of the Resevskys’ rear yard and clothesline. The clothesline is in the target area of this branch if it were to detach and fall.

9 The cause of the failure of the limb appears to be decay. There are two indicators of this. There is a wound on the southern side adjacent to the point of failure and there is also a bracket fungus located on the limb – also adjacent to the point of failure.

10 At the base of the tree, on its western side, there is a significant cavity at the earthline which extends to about 600 mm above the ground. There is a significant amount of decay in located in this cavity.

11 The dead wood in the canopy also includes elements which show significant signs of decay and damage.

12 There is constructed, along the boundary between 3 and 5 The Quarterdeck, a concrete block wall, at least one block of which has been partially enclosed by the Grey Gum growing around it.

13 This element of the wall is under a significant compression to the north – as is evident by the differential size and narrowing, at its uppermost point, of the expansion joint located on that wall some 4 m to the north of the Grey Gum.

14 We cannot be satisfied that the wall is not providing significant structural support to the Grey Gum which is leaning in that northward direction.

15 The concrete block wall to the west of the Grey Gum, along the boundary between 5 The Quarterdeck and 14 Ellsworth Parade is also subject to significant cracking which we are satisfied has been caused by the Grey Gum.

16 With respect to the second tree, as earlier noted, the large failed branch of the Grey Gum is resting in its canopy.

17 The second tree otherwise appears to be in generally healthy condition but has some amount of dead wood that has not been removed as part of any tree maintenance program.

18 Turning to the tests under s 10(2) of the Act with respect to the Grey Gum, we are satisfied that it has in the past caused significant damage to the boundary wall between 3 and 5 The Quarterdeck and to the boundary wall between 14 Ellsworth Parade and 5 The Quarterdeck.

19 Although Mr Smith, an owner of 14 Ellsworth Parade, has asked us to conclude that reactive clays and soil conditions, including soil expansion and contraction, appears likely to be a significant cause or have contributed to the damage to the wall, we are not satisfied that we should accept this proposition in face of the obvious intrusion of the Grey Gum into the corner of the wall.

20 Therefore we are satisfied that one of the tests under s 10(2) of the Act has been met with respect to the Grey Gum.

21 With respect to the second of the trees, if we were to order that the failed limb from the Grey Gum were to be removed, there is no basis that we could otherwise conclude that any of the tests under s 10(2) of the Act is satisfied with respect to the second tree.

22 As we propose to make orders which will encompass the removal of the failed limb of the Grey Gum, there are no further matters for consideration under the Act which would cause us to contemplate orders being made with respect to the second tree

23 In reaching that conclusion, nothing derogates from any rights of Mr and Mrs Resevsky might otherwise have, under common law, to trim back branches of the tree to their boundary, at their expense, if they wished to do so.

24 As a consequence, we turn to consider what, if anything, we should order with respect to the Grey Gum.

25 In these proceedings, Mr and Mrs Resevsky seek, in effect, two substantive orders relating to the Grey Gum:

• the first is the removal of the Grey Gum; and
• the second is the reconstruction of the damaged sections of the wall.

26 It is appropriate to consider these in reverse order.

27 As a result of s 10(2)(a) of the Act, the past damage to the wall provides us with a basis to consider whether we should order the reinstatement of this wall.

28 The damage to the wall is not minor and is not able merely to be rectified, in our assessment – looking at the horizontal cracking on the northern running element of the wall between 3 and 5 The Quarterdeck; the degree of compaction at its expansion joint and, on the western running element of the wall, the significant cracking of it together with the damage to both elements of the wall in the immediate vicinity of the Grey Gum. These factors appear to us to remove the option of a minor reconstruction.

29 Mr Resevsky gave evidence of having had a builder inspect the wall. This builder has provided him with a quotation for its reinstatement from the compression joint on the boundary with 3 The Quarterdeck to a point approximately 4 m along the western element of the wall – being at a point of a step in the wall where the builder has advised a vertical concrete cut could be made with replacement of the section of wall from this cut toward the Grey Gum.

30 We are satisfied that it is appropriate to order that both those sections of the wall be replaced (with the section of the wall between 3 and 5 The Quarterdeck being subject to a requirement that the owners of 3 The Quarterdeck provide written owners’ consent to the Court that they agree to such work being carried out).

31 Having concluded that the wall should be reconstructed, we now turn to consider whether or not it would be possible to permit the tree to be retained (with a mandated deadwood management regime being required) with the wall being reconstructed so as to butt up to the Grey Gum.

32 Reluctantly, we have concluded that it would not it possible or safe to require that for the following reasons:

• First, we are satisfied that there is significant risk of complete structural failure of the Grey Gum when the support being provided for it by the northern element of the wall is removed;
• Second, the cavity and decay at the base of the Grey Gum is also likely to exacerbate the risk of significant or complete structural failure when the wall is removed;
• Third, the decay signs in the canopy coupled with the absence of any past tree management regime create the probability that there would be further significant branch failures likely to occur in the near future.

33 We are therefore satisfied that the orders of the Court should be as follows:

1. The Grey Gum (Eucalyptus punctata) (the Grey Gum) on the respondents’ property adjacent to the point where 3 and 5 The Quarterdeck adjoin 14 Elsworth Parade is to be removed and stump-ground to a depth of 200 mm below the ground;
2. The removal and stump-grinding in (1) is to be carried out by an AQF level 3 qualified arborist with appropriate insurances;
3. The removal in (1) is to be carried out and paid for by the respondents;
4. The removal in (1) is to be completed within 60 days of the date of the orders of the Court;
5. The arborist appointed to carry out the work in (1) is to have access to the applicants’ rear yard on reasonable notice and at reasonable times and under the supervision of the applicants for the purposes of the work in (1) work;
6. If the owners of 3 The Quarterdeck consent to it, the arborist in (2), if the arborist so requests it, is to have access to the rear yard of 3 The Quarterdeck under the conditions in (5) for the same purposes;
7. If the owners of 12 Elsworth Parade consent to it, the arborist in (2), if the arborist so requests it, is to have access to the rear yard of 12 Elsworth Parade under the conditions in (5) for the same purposes;
8. After the Grey Gum is removed, the applicants are to provide the respondents with three written quotations for the replacement of the sections of the wall from the compression joint on the boundary with 3 The Quarterdeck to a point approximately 4 m along the western element – being a point where there is an upward step in the wall;
9. The applicants are to have the wall replaced between the points indicated in (8) within 90 days of the removal of the Grey Gum;
10. The contractor appointed to carry out the work in (9) is to have access to the respondents’ rear yard on reasonable notice and at reasonable times and under the supervision of the respondents for the purposes of the work in (9);
11. The replacement of the wall pursuant to (9) is not to commence until after the Grey Gum has been removed;
12. Within 28 days of the provision to the respondents of a receipted invoice for the completion of the work in (9), the respondents are to pay the applicants an amount equal to lowest of the three quotations provided pursuant to (8); and
13. The work on the northern section of the wall (being along the boundary between 3 and 5 The Quarterdeck) is not to be undertaken unless and until written owner's consent from the owners of 3 The Quarterdeck is provided to the Court prior to the commencement of such work.

Tim Moore

Commissioner of the Court

Acting Commissioner of the Court

17/08/2007 - Correct catchwords - Paragraph(s) Catchwords