Szabo v Shaw

[2007] NSWLEC 758

Land and Environment Court

of New South Wales

CITATION:

Szabo v Shaw [2007] NSWLEC 758

PARTIES:

APPLICANT
John Szabo

RESPONDENT
Quentin Shaw

FILE NUMBER(S):

20930 of 2007

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) :- removal of trees, damage to the property, compensation for damages.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

14/11/2007

EX TEMPORE JUDGMENT DATE:

14 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr J. Szabo, litigants in person

RESPONDENT
Mr. Q. Shaw, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

14 November 2007

20930 of 2007 John Szabo v Quentin Shaw

JUDGMENT

1 This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr John Szabo of 28 Lucknow Street Willoughby concerning three trees located on a property at 26 Lucknow Street Willoughby. The applicant was assisted at the on-site hearing by his daughter Ms Michelle Szabo.

2 The property is owned by Mr Quentin Shaw. The trees are two Leyland Cypress (x Cuppressocyparis leylandii) and one Chinese Tallow (Sapium sebiferum). In the applicant’s submission, Tree 1 is a Leyland Cypress that overhangs his garage, Tree 2 is the Chinese Tallow affecting the boundary fence and Tree 3 is the Leyland Cypress at the front corner of the respondent’s property that is growing near Mr Szabo’s electricity service line. The trees were well-established when the respondent moved in seven years ago.

3 The application seeks orders from the Court that the trees be removed (although Tree 3 could be pruned) as it is the applicant’s contention that the trees have caused and could continue to cause damage to the applicant’s property. Specifically, the canopy of Tree 1 has caused damage to the gutter and roof of his garage and the roots could cause damage to the foundations of the garage; Tree 2 has caused damage to the paling fence between the two properties; and Tree 3 could cause damage to the service line from the street mains to the applicant’s property.

4 The applicant is also claiming compensation of $580.00 for a 6 metre long section of paling fence to replace the section damaged by tree 2.

5 The owner of the trees disputes the assertion that tree 1 has caused damage to the roof and gutter of the applicant’s garage but does not dispute the damage to the fence by tree 2.

6 An inspection of the trees and the relevant structures from the applicant’s property showed the following. The guttering of the garage on the boundary side was rusted through along its entire length. Photographs of the garage roof, submitted by the respondent and not disputed by the applicant, showed that the entire metal roof had signs of rusting. That is, the degradation extended well beyond the area overhung by Tree 1. The applicant stated that the roof had been replaced shortly after he moved into this property in 1967 but had not been replaced since. He was concerned that as he needs to replace this roof soon, the tree will prevent the roofing contractors from carrying out this work. It was noted that some of the overhanging branches that had been touching the roof and gutter had been removed by the respondent. This was carried out when the respondent became aware of the applicant’s concern. The respondent has agreed to further prune the tree to at least two metres above the garage roof to allow re-roofing to proceed.

7 In relation to Tree 2, the Chinese Tallow, it was observed that a section of timber fence has been displaced in the vicinity of the tree and some palings are loose. An inspection from the respondent’s property showed that the base of the tree has grown against the fence. Mr Shaw immediately agreed to pay for the section of the fence that had been displaced by the tree.

8 Tree 3 is a Leland Cypress growing in the front corner of the respondent’s property. According to the applicant this had been growing against his electricity service line and he was concerned that it might damage the line and his electricity supply. The tree has now been pruned so that there is adequate clearance. The respondent has agreed to maintain this clearance.

9 Under section 12 of the Act, the Court must consider a number of issues. I am satisfied that the trees in question are wholly located on the respondent’s land and they do contribute to the scenic value of the land on which they are located. The respondent has taken steps to address the concerns of the applicant and has stated he will continue to do so.

10 Under section 10 (2) of the Act, the Court must be satisfied that the trees have caused, are causing or, could, in the near future, cause damage to property or injury to persons. In this case, I am not satisfied that trees 1 and 3 have caused, are causing or could cause damage to the applicant’s property and so no orders may be made in respect of these trees. In the case of tree 2, the tree has caused some displacement of a section of paling fence. It should be noted that the fence is at least 10 years old and is showing signs of age. Given the respondent’s willingness to immediately compensate Mr Szabo for the fence, no formal orders will be made concerning tree 2.

11 In conclusion, the application for trees 1 and 3 is dismissed but upheld for tree 2. However, given the agreement of the respondent to immediately compensate Mr Szabo for the fence, no formal orders of the Court will be made.

___________________

J. Fakes
Commissioner of the Court
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