Stratigos v Rosen

[2007] NSWLEC 786

Land and Environment Court

of New South Wales

CITATION:

Stratigos v Rosen [2007] NSWLEC 786

PARTIES:

APPLICANT
Steve and Carole Stratigos

RESPONDENT
Mrs Jeanette Rosen

FILE NUMBER(S):

20821 of 2007

CORAM:

Thyer AC

KEY ISSUES:

Trees (Neighbours) :- removal of tree, risk of injury to people, damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

13/11/2007

EX TEMPORE JUDGMENT DATE:

13 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr and Mrs Stratigos, litigants in person

RESPONDENT
Mrs Rosen, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Thyer AC

13 November 2007

20821 of 2007 Stratigos v Rosen

JUDGMENT

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

1 Acting Commissioner: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 concerning one tree (the tree) situated near the southern boundary of 143 Blackbutts Road (aka 2A Hakea Avenue) Frenchs Forest (the property). The property is owned by Mrs Rosen.

2 The tree is a Ficus benjamina.

3 The application has been made by Mr and Mrs Stratigos (the Stratigos), owners of 6 Kambora Avenue, Frenchs Forest, the adjoining property to the south of the tree.

4 The Stratigos seek orders from the Court that the tree be removed by the owner of the property in order to avoid risk of injury to people, and to rectify or prevent damage to the applicant’s property.

5 The relevant provisions of s 10(2) of the Act require that the Court be satisfied that one or more of four conditions are met, with respect to each tree subject of an application, before the Court has jurisdiction to consider the application concerning that tree.

6 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?

7 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?

8 I have examined the tree and the nearby areas of both the property and Mrs Rosen’s property, and have considered the information provided by the parties. I have reached the following conclusions with respect to this matter.

9 The tree is a healthy, mature Ficus benjamina with height of approximately 8 to 10 m, and canopy spread of 12 to 15 m. It overhangs the property by 1 to 3 m, having been pruned on that side in the past. The tree has multiple trunks, each being 0.3 to 0.4 m diameter. The trunks of the tree are situated 2.5 to 3 m from the boundary of the property.

10 I observed surface roots of the tree on Mrs Rosen’s property.

11 I also observed roots on the Stratigos’ property that are most likely from the tree. These were a root of 75 to 100 mm diameter beneath a raised paver adjacent the boundary fence near the tree, and numerous areas of fibrous roots that appeared to be growing from between the paving and the wall of the Stratigos’ house.

12 The Stratigos have advised that their sewerage pipes have been blocked in the past. They have provided photographs of earthenware pipes blocked by fibrous roots. They advise that they have had the sewer pipes replaced with plastic pipes from the external wall of the house near the bathroom to the street. They also advise that paving has been raised by tree roots, and they have re-laid the paving after removal of tree roots. They are not seeking compensation for the cost of these works in the past.

13 I consider it likely that the sewer pipe damage and paving damage in the past was caused by the tree.

14 I consider it likely that minor damage to the property such as lifted pavers, and possibly sewer blockage will occur to the property in the near future.

15 I consider that the risk of injury from the slightly raised pavers is minor.

16 I find that the growth of moss on steps and pavers is something that the Stratigos could control by reasonable yard maintenance.

17 The general matter of shading cannot be considered, as matters of access to light have been excluded from the Act.

18 The tree also has positive qualities. It is attractive when viewed from the street and from within Mrs Rosen’s property. It provides a screen between the parties’ properties, it is a significant garden feature, and it provides food and habitat for wildlife.

19 Mrs Rosen wishes to retain the tree and is willing to carry out some pruning and works to reduce the risk of problems to the Stratigos.

20 During this hearing, the parties have come to an agreement about pruning of the branches and roots of the tree, and who should pay for that work.

21 I note that having reached that agreement, the Stratigos no longer require the Court to order an intervention with the tree.

22 I therefore dismiss this matter, noting the following agreement between the parties:

• The Ficus benjamina tree shall remain;
• Mrs Rosen shall have a trench dug on her side of the common boundary, from near the western boundary of 143 Blackbutts Road to approximately 2 m short of the eastern boundary;
• The trench shall be cut to approximately 0.6 m deep in order to cut the roots of the tree that are growing into the property of Mr and Mrs Stratigos. The work shall be supervised by an arborist holding AQF Level 3 or equivalent qualifications. Additional dept of trenching shall be done if advised by the arborist and accepted as being necessary by Mrs Rosen;
• The trench and root pruning work shall be completed by 31 March 2008;
• Mrs Rosen shall pay the full cost of the trenching and root pruning;
• The root pruning may need to be repeated at approximately five yearly intervals. Future root pruning shall be on the same basis as above;
• The tree shall be pruned to remove any overhang of the Stratigos’ property. That pruning shall be at the boundary or to a reasonable distance on Mrs Rosen’s side of the boundary for the pruning to comply with Australian Standard 4373 of 2007: Pruning of Amenity Trees. The pruning shall include reduction of the height of the tree canopy to produce an attractive rounding of the canopy from the top of the fence to above the trunk of the tree, in order to reduce the shade cast by the tree and to delay the regrowth over the boundary;
• The pruning shall be carried out by an arborist holding AQF Level 3 or equivalent qualifications and suitable insurances;
• The pruning shall be carried out by 31 August 2008, allowing the pruning to be done in winter so that the exposed branches of the tree are not damaged by sunburn;
• The pruning shall be at equal cost of Mrs Rosen and the Stratigos;
• Mrs Rosen and the Stratigos shall obtain at least two quotes for the pruning work, and agree on which quote to accept;
• Mrs Rosen shall have the work carried out and pay for the work;
• The Stratigos shall pay half the cost of the quote or the receipted payment (whichever is less) to Mrs Rosen within 30 days of being given a copy of the receipt for the completed work;
• The arborist shall be given access to carry out that part of the work that must be done on the Stratigos’ property. The access shall be on reasonable notice at a reasonable time, and the Stratigos are entitled to supervise that access;
• Further pruning shall be considered after approximately five years, or at an earlier time if unexpectedly quick regrowth occurs;
• Any future pruning shall be on the same basis as above;
• Future communication regarding the tree shall be directly between Mrs Rosen and the Stratigos.

___________________

Peter Thyer
Acting Commissioner of the Court