Seymour v Grace
[2019] NSWLEC 1276
•23 May 2019
Land and Environment Court
New South Wales
Medium Neutral Citation: Seymour v Grace [2019] NSWLEC 1276 Hearing dates: 14 May 2019 Date of orders: 23 May 2019 Decision date: 23 May 2019 Jurisdiction: Class 2 Before: Galwey AC Decision: The Court orders:
(1) Within 30 days of the date of these orders the applicant and the respondent will each obtain two quotes to replace their common boundary fence with a 1.5-metre green steel-panel fence, or as otherwise agreed, using the existing steel posts if possible.
(2) Within 90 days of the date of these orders the applicant is to engage the contractor with the cheapest quote in (1), or another if agreed by the parties, to replace the fence as quoted.
(3) Within 120 days of the date of these orders the respondent is to pay the applicant 50% of the quoted fencing costs upon receiving a copy of the paid invoice.
(4) If within 6 months of the date of these orders the applicant has his paving repaired, the respondent is to pay the applicant, within 14 days of receiving a copy of a paid invoice for the works, 20% of the invoice amount to a maximum of $3,600.
(5) If the respondent does not receive a copy of a paid invoice for paving works within 6 months, order 4 lapses.Catchwords: TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – fence – paving – compensation – trees removed by respondent – time taken for respondent to take action – limited evidence regarding causation of damage Legislation Cited: Dividing Fences Act 1991 (NSW)
Trees (Disputes Between Neighbours Act) 2006 (NSW)Category: Principal judgment Parties: Robert Seymour (Applicant)
Mark Grace (Respondent)Representation: R Seymour, litigant in person (Applicant)
M Grace, litigant in person (Respondent)
File Number(s): 2019/61681 Publication restriction: No
Judgment
The application
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Robert Seymour (the applicant) has been concerned for some years that roots of neighbouring trees are causing damage to his paving and a boundary fence. He is also concerned that debris from the trees blocks his guttering, causing water damage internally.
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Mr Seymour applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the Trees Act) seeking orders for tree removal, fence repair and compensation for the cost of repairing his paving.
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Mark Grace (the respondent) has arranged for the two trees (a Liquidambar and a Weeping Fig) to be removed and concedes he should contribute to the costs of repairing damage caused by his trees.
The onsite hearing
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At the onsite hearing I observed the trees, fence, paving and other relevant features. No paving has been removed to show conditions below, nor has any other investigation been undertaken to demonstrate causation of Mr Seymour’s uneven paved surfaces.
Framework for this decision
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The Trees Act establishes several jurisdictional tests and outlines relevant matters to be considered. Before I can make any orders to interfere with the trees, for each tree I must be satisfied that it has caused, is causing, or is likely in the near future to cause, damage to Mr Seymour’s property (s 10(2)). A tree must be a cause of damage, but need not be the only cause of that damage. I must consider relevant matters listed at s 12 before making suitable orders such as those set out at s 9.
The trees
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Both trees are in Mr Grace’s back garden. Closest to the fence is the Liquidambar, approximately 16 metres tall with a stem diameter of some 50 cm. Further from the fence the Weeping Fig is approximately 20 metres tall with a stem diameter of approximately 80 cm. Both trees are mature, in good condition without major structural defects. They contribute to the amenity of Mr Grace’s property and surrounding properties.
The fence
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The paling fence along the common boundary is approximately 43 years old. Its condition reflects its age – it leans and is out of alignment, not just where it passes close to the Liquidambar, although its condition is worst at that point.
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I am satisfied that the Liquidambar has pushed the fence out of alignment near its base. Mr Seymour has repaired his opposite boundary fence with steel panel fencing using the exiting steel posts. The parties agree that: their common boundary fence needs replacement along its entire length; existing steel posts should be used if possible; green steel panel fencing (similar to Mr Seymour’s other boundary fence) is appropriate; and, costs should be shared between the parties. As the Court is empowered by s 13A of the Dividing Fences Act 1991 (NSW), I will make orders for not only the section of fence damaged by the tree, but for the whole of the paling fence on this common boundary.
Leaf litter on the roof
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Mr Seymour submitted that leaf litter from the trees blocks his roof valleys and gutters, causing water ingress into his bathroom ceiling.
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The principle established at [20] in Barker v Kyriakides [2007] NSWLEC 292 addressed this common issue:
“For people who live in urban environments, it is appropriate to expect that some degree of house exterior and grounds maintenance will be required in order to appreciate and retain the aesthetic and environmental benefits of having trees in such an urban environment. In particular, it is reasonable to expect people living in such an environment might need to clean the gutters and the surrounds of their houses on a regular basis.
The dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees ordinarily will not provide the basis for ordering removal of or intervention with an urban tree.”
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Mr Seymour’s situation is similar to many others where the Court has consistently applied this principle. I would not make any orders to interfere with the trees based on this element of his application.
Paving
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The outdoor area at the back of the Seymours’ house includes large areas of paving. Parts of this are displaced, with some cracking and uneven surfaces. The paving near the boundary no longer drains, instead keeping water sitting near the house. Mr Seymour has obtained quotes for repairing both of: 35 m2 of concrete paving around the house (from 1996); and 6 m2 of pavers further from the house (6 years old). The total quoted repair costs are $17,055 to $18,300.
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No investigation has been done to demonstrate the cause of damage. Relying on my own arboricultural experience, I am satisfied that some surface roots next to the damaged paving nearest the boundary are from the nearby Liquidambar. This section of paving has been displaced by the Liquidambar’s roots. However, elsewhere I cannot be satisfied which tree has caused damage, or what else might have contributed to the damage.
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During the hearing, Mr Grace stated his intention to remove both the Liquidambar and the Weeping Fig. At a telephone mention held a week later, Mr Grace confirmed that both trees have been removed. Therefore no orders are needed to prevent further damage to Mr Seymour’s paving, leaving only the matter of fair compensation for me to determine.
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On the limited evidence presented to the Court, I cannot be satisfied, to the extent required by the Trees Act, that the trees have caused damage beyond the section nearest the fence, or to what extent other factors have contributed to damage. Apportionment of the costs of repair must be an approximation, based on the findings outlined above.
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Mr Grace explained at the hearing that he has been reluctant to remove these trees despite being made aware of Mr Seymour’s issues some years ago.
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In determining apportionment of repair costs, I have considered the following relevant matters: the extent of damage I can be sure was caused by roots; the amount of time that has passed since Mr Grace became aware of the issue; the proximity of paving to the trees; and the presence of the trees when the paving was installed. I find it would be reasonable for Mr Grace to contribute 20% of the repair costs. Mr Grace did not submit that Mr Seymour’s existing quotes are unreasonable, so I will use the rounded total between the two quoted amounts as the basis for the compensation to be ordered: 20% of $18,000.
Orders
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Based on the foregoing, Mr Seymour’s application is granted, although with orders to be made differing from those for which he applied. The Court makes the following orders.
Within 30 days of the date of these orders the applicant and the respondent will each obtain two quotes to replace their common boundary fence with a 1.5-metre green steel-panel fence, or as otherwise agreed, using the existing steel posts if possible.
Within 90 days of the date of these orders the applicant is to engage the contractor with the cheapest quote in (1), or another if agreed by the parties, to replace the fence as quoted.
Within 120 days of the date of these orders the respondent is to pay the applicant 50% of the quoted fencing costs upon receiving a copy of the paid invoice.
If within 6 months of the date of these orders the applicant has his paving repaired, the respondent is to pay the applicant, within 14 days of receiving a copy of a paid invoice for the works, 20% of the invoice amount to a maximum of $3,600.
If the respondent does not receive a copy of a paid invoice for paving works within 6 months, order 4 lapses.
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D Galwey
Acting Commissioner of the Court
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Decision last updated: 17 June 2019
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