Szabo v Ciacchi

[2007] NSWLEC 675

Land and Environment Court

of New South Wales

CITATION:	Szabo v Ciacchi [2007] NSWLEC 675
PARTIES:	APPLICANT Karoly Szabo RESPONDENT Claude Ciacchi
FILE NUMBER(S):	20675 of 2007
CORAM:	Brown C - Fakes AC
KEY ISSUES:	Trees (Neighbours) :- safety - damage - compensation
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	8/10/07
EX TEMPORE JUDGMENT DATE:	8 October 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr J Kells, solicitor RESPONDENT In Person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C with Fakes AC

8 October 2007

20675 of 2007 Karoly Szabo v Claude Ciacchi

JUDGMENT

1 COMMISSIONERS: This is an application made pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 by Mr Karoly Szabo of 76 Joseph Banks Drive Kings Langely concerning an unspecified eucalypt tree located on the property owned by Mr Claude Ciacchi of 78 Joseph Banks Drive Kings Langely. The tree appears to have been planted on 78 Joseph Banks Drive although with time, the trunk is now located partly on 76 Joseph Banks Drive. There was no disagreement that the tree is “wholly or principally” on 78 Joseph Banks Drive, pursuant to s 4(3).

2 The extemporaneous decision was given on site on 8 October 2007 and the judgment reflects the findings given on site and the background documentation provided as part of the proceedings.

3 Mr Szabo’s application is to require the removal of the tree for the following reasons:

• the tree is in poor condition,
• falling branches have damaged the roof of the dwelling and garden shed,
• falling branches pose a safety risk to people in the rear yard,
• the tree has caused the boundary fence to lean, and
• the tree has caused cracking of the garden shed slab.

4 A report from the Tree Doctor supports the removal of the tree although the report is dated 29 June 1994.

5 The following compensation is claimed by Mr Szabo:

• new garden shed - $750
• removal and replacement of garden shed slab - $1276
• new fence - $902
• roof damage - $500

6 Mr Ciacchi opposed the removal of the tree as it provided shade and added to the amenity of the property. He provided no technical reports to address the health of the tree. Mr Ciacchi also opposed any compensation to Mr Szabo.

7 The tree is an unspecified eucalypt (although identified as a eucalypt grandus (flooded gum) in the Tree Doctor report) some 10 m in height with significant pruning of limbs over Mr Szabo’s property. There was no recent report on the health of the tree however a ground inspection revealed that the tree is in serious decline. Significant secondary borer damage was noted in the major limbs and would threaten the ongoing viability of the tree. There were also significant areas of deadwood and major limb dieback. The poor health of the tree is unlikely to improve so the removal of the tree can be supported for these reasons. As Mr Ciacchi saw some benefit in the shade from a tree in the rear yard a replacement tree can be provided and located in a more central position on his property. Blacktown City Council should be consulted on an appropriate species.

8 The garden shed on Mr Szabo’s property was inspected and the crack in the slab and some slight denting of the roof panels were observed. While it may be possible that the tree may have responsible for this damage, even only in part, the shed and slab are some 22 years old and taking into account the limited damage to the shed and the slab and age of these structures, we are satisfied that there is no basis for compensation.

9 Similarly, we are satisfied that there is no basis for compensation for the replacement of the fence. The fence is at least 25 years old and is nearing the time for replacement in any event, although the location of the tree may have increased the need for replacement but not to the extent that the full cost should fall to Mr Ciacchi. We accept that the cost should be divided equally between Mr Szabo and Mr Ciacchi. Details provided by Mr Ciacchi of proceedings under the Dividing Fences Act 1991 in 1998 came to a similar conclusion.

10 The compensation for repairs to the roof was based on the likely cost by a tradesman to undertake the repair work although the necessary repairs were carried out by Mr Szabo as he has some experience in this area. The extent of the damage was not quantified beyond some photographic evidence provided by Mr Ciacchi. We are satisfied that this is not an appropriate basis for compensation as the extent of damage was not fully known and there was no basis for the claim apart from Mr Szabo’s estimate of the cost. As such the claim should be rejected.

11 For these reasons, the application is upheld, in part, and the following Orders are made:

1. The tree, the subject of the application, is to be removed at full cost to Mr Ciacchi within a period of 90 days from the date of this Order.
2. A replacement tree is to be provided after consultation with Blacktown City Council on an appropriate species.
3. Following the removal of the tree, the cost of a replacement boundary fence is to be shared equally between the property owners.


____________
G T Brown
Commissioner of the Court

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Judy Fakes
Acting Commissioner of the Court