The Owners Strata Plan 16538 v Chandos Nursing Home

[2008] NSWLEC 1423

Land and Environment Court

of New South Wales

CITATION:

The Owners – Strata Plan 16538 v Chandos Nursing Home [2008] NSWLEC 1423

PARTIES:

APPLICANT
The Owners – Strata Plan 16538

RESPONDENT
Chandos Nursing Home

FILE NUMBER(S):

20777 of 2008

CORAM:

Fakes AC - Taylor C

KEY ISSUES:

Trees (Neighbours) :- Damage to proeprty , risk of injury to persons, compensation for damage caused

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

13/10/2008

EX TEMPORE JUDGMENT DATE:

13 October 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr E. Ottaviano
of Conti Property Group

RESPONDENT
Mr I. Rockey
of Chandos Nursing Home

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

Taylor C

13 October 2008

20777 of 2008 The Owners – Strata Plan 16538 v Chandos Nursing Home

JUDGMENT

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

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by the owners of Strata Plan 16538 of 54 Chandos Street Ashfield against three trees located on the adjoining property, Chandos Nursing Home at 50 Chandos Street.

2 The applicants were represented at the on-site hearing by Mr Eddy Ottaviano of Conti Property Group, Concord. The respondent was represented by Mr Ivan Rockey, the proprietor of Chandos Nursing Home.

3 The applicants are seeking remedy for damage to the driveway that they contend has been caused by the trees growing along the boundary with 50 Chandos Street. They are also concerned that the damaged sections of the driveway pose a risk of injury. If the trees are ordered to be retained, they want a guarantee that the trees will not cause the same damage in the future. Apart from seeking $7,700.00 for the repair of the relevant section of driveway, they are asking for the cost of an arborist’s report that accompanied the application.

4 With respect to the latter, it is beyond the jurisdiction of the Court in these matters to award costs associated with the making of an application.

5 There are four trees growing adjacent to the driveway of 54 Chandos Street. From the Chandos Street end of the driveway, the trees are (1) Ulmus procera (English Elm), (2) Ulmus procera (3) Cinnamomun camphora (Camphor Laurel) and (4) Cinnamomum camphora. The trees subject to this application are trees 2, 3 and 4. The trees are mature and in average health. They have been pruned away from the unit block at 54 Chandos Street.

6 Another tree, reported to be a Eucalyptus nicholii (Narrow-leafed Peppermint), was recently removed from the front of the applicants’ property. This was opposite tree 1 and on the opposite side of the driveway. The tree was removed on the recommendation of an arborist and approved by Ashfield Council on the basis that it had caused significant damage to the first section of the driveway.

7 We inspected the driveway. It consists of multiple concrete slabs of varying sizes, some with expansion joints. The mid section of about two thirds of the length of the driveway has been replaced recently in conjunction with, what appears to be, plumbing works. There are no expansion joints along or within this section but there are some fine cracks in proximity to the trees.

8 The units were probably constructed in the 1970s making them at least 30 years old. The concrete driveway is highly likely to be the same age. A large expanse of concrete at the rear of the units was also inspected. This is cracked and lifted in many places.

9 Returning to the driveway, the section closest to the building shows signs of normal wear and tear for a structure of its type and age. This section does not appear to have been especially affected by the trees. The section of driveway closest to the trees does show cracking and displacement that is likely to have been caused by the trees; this is in addition to the normal wear and tear.

10 Under section 10(2) of the Act, the Court must not make an order unless it is satisfied that the tree has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or injury to persons.

11 Under s 12 of the Act, the Court must consider a number of other matters. The relevant clauses are:

(a) The trees are wholly located on the respondent’s property.
(c) The trees have some historical significance, especially the elms, as they are relatively uncommon in Sydney and are likely to be contemporaneous with the Nursing Home which was formerly a Queen Anne federation style residence.
(e) The trees add to the scenic value on which they are located as they screen the units.
(f) They do provide some public amenity as they are visible from the street, screen the units and provide shade to both the home units and to the carpark of the nursing home.
(h)&(i) There are a number of issues that have relevance:
• The respondent stated that the soils in this area are reactive clays and pointed out many cracks on his own property;
• The applicants have removed the tree on their property that was considered by the arborist to be the main cause of damage to their driveway.
• The respondent did seek permission from Ashfield Council to remove the trees 1- 4 but this was refused due to their amenity value.
  

12 After viewing the evidence, we have come to the conclusion that the trees have caused some damage to the applicants’ property and this may pose some degree of risk of injury to pedestrians using the driveway. However, as the driveway is over 30 years old and has had numerous incursions, some of the damage is due to normal wear and tear and is thus the responsibility of the applicants. The orders of the Court are:

1. The application is upheld in part.
2. The trees are to remain.
3. The respondent is to obtain three quotes for the repair of part of the southern portion of the driveway, that being the area that lies to the south of the section located beside the units, from the front of the building for a distance of approximately 26 metres (this being approximately 2 m from the most westerly of the two driveways). This section is about 1.5 m wide and thus represents an area of approximately 40 square metres.
4. The respondent is to pay for 50% of the cost of the cheapest quote. The applicants are to pay the remaining 50% to the respondent, within 21 days of receiving a tax invoice for the completed works.
5. The works are to be completed within 90 days of the date of these orders.
6. The respondents are to give the applicant reasonable notice of the intended quotes and works.
7. The applicant must provide all reasonable access for the quotes and the works.

___________________

J Fakes
Acting Commissioner of the Court

___________________
Dr M Taylor
Commissioner of the Court