Syed v Kenna Investments Pty Ltd
[2010] NSWLEC 1303
•4 November 2010
Land and Environment Court
of New South Wales
CITATION: Syed v Kenna Investments Pty Ltd [2010] NSWLEC 1303 PARTIES: APPLICANT
RESPONDENT
Mr L Sayad
Kenna Investments Pty LtdFILE NUMBER(S): 20553 of 2010 CORAM: Fakes C KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property; tree removal; compensation reduced due to contributing factors LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Yang v Scerri [2007] NSWLEC 592 DATES OF HEARING: 04/11/10
DATE OF JUDGMENT:
4 November 2010EX TEMPORE JUDGMENT DATE: 4 November 2010 LEGAL REPRESENTATIVES: APPLICANT
Mr L Syed [litigant in person]RESPONDENT
Mr D Kennedy [agent]
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESFakes C
4 November 2010
JUDGMENT20553 of 2010 Syed v Kenna Investments Pty Ltd
1 COMMISSIONER: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act) made by the owner of a property in Boronia Road Greenacre against the owner of 2 trees growing at the rear of an adjoining property.
2 The applicant is seeking the removal of the trees and compensation for the replacement of a concrete slab he says has been damaged by the trees. The amount claimed is $2500. This sum is on the basis of a quote to remove and replace the slab and reinforce it with steel.
3 The trees are 2 Ligustrum lucidum (Broad-leafed Privet) growing on the southern boundary of the respondent’s property. The trees are growing in a narrow strip of soil approximately 800mm wide between the metal dividing fence and a concrete dish drain. Tree 1 is to the east and Tree 2 is to the west.
4 On the other side of the drain is a row of Lophostemon confertus (Brush Box). These have been the subject of past discussions between the parties but are not an issue in these proceedings.
5 The respondent accepts that the trees are a known weed species but considers them to be valuable as a visual screen between the applicant’s property and the rear of the respondent’s property, an aged care facility. The trees provide a measure of privacy for residents of both properties.
6 I inspected the concrete slab. It was clear that roots from tree 1 are growing beneath a corner of the slab and along its western edge. It was clear from the characteristics and morphology of the roots that they are from the Privet and not the Brush Box.
7 There was no evidence of any damage being caused to the applicant’s property by tree 2. The applicant stated that this tree blocked light to a window however this is not a matter in which the Court has jurisdiction for an application made under Part 2 of the Trees Act.
8 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is likely to cause injury to any person. These tests must be applied to each tree.
9 I am satisfied that the roots from tree 1 have contributed to the damage to the slab, and therefore, with respect to this tree, the jurisdiction is enlivened and the Court may make an order.
10 With respect to tree 2, there is no evidence that this tree has caused or is causing damage to the applicant’s property. The applicant stated that he was concerned about future damage to his house. There is no evidence to suggest that this is likely to happen in the near future.
11 In a guidance decision published in Yang v Scerri [2007] NSWLEC 592, the rule of thumb is that the ‘near future’ is a period of 12 months from the date of determination of the application.
12 Therefore as none of the tests under s 10(2) are satisfied for tree 2, no order can be made with respect to this tree.
13 In making an order with respect to tree 1, the Court must consider a number of matters under s 12 of the Act. The relevant clauses in this case are:
- (a) The tree is wholly located on the respondent’s property
- (d) The tree is a recognised weed species and is therefore likely to have a detrimental impact on the local ecosystem
- (e) The tree provides a visual screen between the two properties
(h)(i) Anything other than the tree that may contribute to the damage (see the next paragraphs)
14 The concrete slab in question is approximately 3m x 3.5m in area. It is the last slab at the northern end of the applicant’s driveway/carport. The applicant states that the house was built about 17 years ago and assumes that the slab is the same age. It was obvious that the slab was not poured at the same time as the rest of the driveway. It is not finished to a professional level and appears to be a very amateur job.
15 The gap beneath the slab and the depth and extent of the cracks over the entire slab in question (not present in the other parts of the driveway and on which vehicles are regularly parked) suggest there is no re-enforcement within the slab. The extent of the cracks may have enabled water penetration as drain inlets were noted to the immediate south of the slab.
16 Regarding the quote for the works, it is a photocopy of a handwritten quote on a piece of paper from ‘Joes Concreter’. There is no ABN, address or quote number.
17 Returning to the damage and what orders should be made, I am satisfied that tree 1 has contributed to the damage to the slab. The proximity of the tree to the fence is such that a root barrier could not be installed to manage the roots. Therefore it is appropriate that the tree should be removed to prevent future damage.
18 With respect to the compensation, there is a nexus between the tree and the damage and therefore some compensation is due to the applicant. However, the age and the quality of the slab are also contributing factors and the amount payable by the respondent should be discounted on this basis.
19 Similarly, as any new slab should have steel reinforcing, the replacement slab will be of a higher quality than the existing slab and this will be taken into account with respect to the amount to be paid by the respondent.
20 Therefore, the Orders of the Court are:
1. The application to remove tree 1 is upheld.
2. The application to remove tree 2 is refused.
3. The respondent is to remove tree 1 and its stump to at least 200mm below ground level within 30 days of the date of these orders.
4. The applicant is to obtain 3 written quotes for the removal and replacement of the concrete slab in question within 30 days of the date of these orders.
5. The applicant is to provide copies of the quotes to the respondent. The respondent is to advise the applicant of their choice of contractor within 14 days of the receipt of the quotes.
6. The applicant is to engage the nominated contractor and the works are to be completed within 90 days of the date of these orders or order 7 lapses.
7. The respondent is to pay the applicant 50% of the cost of the works within 21 days of the receipt of a tax invoice for the completed works.
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