Todorovic v Mendham

[2019] NSWLEC 1088

Land and Environment Court

New South Wales

Medium Neutral Citation:	Todorovic v Mendham [2019] NSWLEC 1088
Hearing dates:	27 February 2019
Date of orders:	01 March 2019
Decision date:	01 March 2019
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	The application is granted. See orders at [26].
Catchwords:	TREES (DISPUTES BETWEEN NEIGHBOURS) – damage to property, being a driveway, fence and roof – risk of injury – joinder of second applicant – jurisdiction to make orders – consent orders
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006 (NSW)
Cases Cited:	Breen & Anor v Caronna & Anor [2008] NSWLEC 293
Category:	Principal judgment
Parties:	Rada Todorovic (First Applicant) Todorovic Family Pty Ltd (Second Applicant) Garrick Allen Mendham (Respondent)
Representation:	Counsel: N Hammond (Respondent)   Solicitors W Condon, Condon Legal (Applicants) Hones Lawyers (Respondent)
File Number(s):	2018/250635
Publication restriction:	No

Judgment

Background to the application

1. The small gardens of Sydney’s inner suburbs provide limited opportunities to grow large trees. A jacaranda (‘the tree’) in a 6-metre wide Newtown property spreads above several properties. Almost 20 metres across, its crown contributes significantly to amenity of the neighbourhood in this densely built environment. Naturally, its growth has not been without impacts on some surrounding infrastructure.

2. Ms Todorovic (‘the first applicant’) owns a property adjoining the one upon which the tree grows, owned by Garrick Mendham (‘the respondent’). On the grounds of property damage and risk of injury, Ms Todorovic applied to the Court pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (NSW) (‘the Trees Act’), seeking orders for: the tree to be pruned; repairs to property, being a driveway, fencing, roofing and gutters; and the costs of the application.

Joinder of the second applicant

3. A Notice of Motion seeking to join Todorovic Family Pty Ltd as the second applicant was heard by the Court’s Registrar on 12 February and leave was so granted. The property to the west of Ms Todorovic’s is owned by Todorovic Family Pty Ltd (‘the second applicant’). Although it might be more usual for two applications to be made for two separate properties, I find there is nothing in the Trees Act to prevent me hearing this as a single application. To determine this application efficiently and fairly, within the purposes of the Trees Act, I will consider the two properties separately and determine what orders can and should be made as if these were two separate applications. One applicant should not gain access to orders they would otherwise be jurisdictionally denied, if (for instance) damage to the other applicant’s property satisfies a jurisdictional test.

4. Expert evidence submitted after the application was made, as well as oral evidence at the onsite hearing, is relevant to both properties.

Consent orders

5. By the time of the onsite hearing, the parties had prepared proposed consent orders. These orders include the removal of the tree, as opposed to earlier orders for pruning. The expert report of Mr Castor, consulting arborist, advised that the necessary property repairs would require the tree’s removal. The consent orders proposed are copied below:

1. The application is granted.

2. Subject to the terms of these Orders, the Respondent is required to engage appropriately qualified contractors to carry out and complete the following works within six months of the date of the making of these Orders:

1. Clearing of blocked sewer pipework in courtyard to the property of the First Applicant at 38 Enmore Road, Newtown and flushing out the main sewer line as per the quote provided by Last Drop Plumbing dated 12 July 2018 to a maximum cost of $480.00 a copy of which is annexed to these Orders and marked ‘A’ (noting that the Respondent is not required to undertake any clearing of gutters/pipes blocked by leaves).

2. Removal and replacement of metal roof to external laundry located in the rear yard of the property at 38 Enmore Road, Newtown set out in the quote prepared by Cannarg Constructions Pty Limited dated 28 November 2018 (‘Cannarg Quote’) copy of which is annexed to these Orders and marked ‘B’.

3. Repair of the driveway located at the rear of the properties of the First and Second Applicants at 38 Enmore Road, Newtown and 40 Enmore Road, Newtown in accordance with the scope of works set out in the Cannarg Quote (‘Driveway Works’).

4. Prior to the carrying out of the Driveway Works, the removal of the jacaranda tree (Jacaranda mimosifolia) (‘Jacaranda Tree’) located in the rear yard of the Respondent’s property at 26 Station Street, Newtown and the centre trunk of which is located approximately 1 metre from the northern boundary fence of that property (‘Boundary Fence’).

5. Removal of the palings within that section of the Boundary Fence which is located in the immediate vicinity of the Jacaranda Tree and which has been uplifted by the Jacaranda Tree and to any additional extent necessary to undertake removal of the Jacaranda Tree and the Driveway Works and replacement to original location following completion of those works.

3. The Respondent will provide 7 days’ notice to the First and Second Applicants prior to the carrying out of the works required to be carried out pursuant to Order (2).

4. All works to be carried out pursuant to Order (2) are to be carried out at the sole expense of the Respondent.

5. The First and Second Applicants must, in relation to any works required to be undertaken by the Respondent pursuant to these Orders, provide all reasonable access and attend to all steps that may be reasonably necessary in order to facilitate:

1. the carrying out of those works; and/or

2. the obtaining of any approvals or other authorisations which may be required.

6. The First and Second Applicants must notify the owner of 42 Enmore Road, Newtown of the carrying out of the Driveway Works.

7. Any time periods during which the First and Second Applicants are required to take any steps shall not be taken into account when calculating the six month period referred to in Order (1).

8. Liberty is granted to apply to vary the Orders in the event of any delays to the carrying out of the works the subject of the Orders due to matters outside of the Respondent’s control.

9. The Court notes the following agreement between the parties:

1. Respondent to pay to the First Applicant the sum of $5,000.00 in full and final settlement of any claim of legal costs by either Applicant, such payment to be made within 28 days of the making of these Orders.

6. Despite these consent orders, and as so clearly explained by Sheahan J at [6]–[10] in Breen & Anor v Caronna & Anor [2008] NSWLEC 293, the jurisdictional tests at s 10 of the Trees Act must still be satisfied, and I must consider matters at s 12 of the Trees Act before making the orders. These must be orders not only that I could make, but that I would make.

Onsite hearing

7. We viewed the tree, the right-of-way across both applicants’ properties and other areas of alleged damage on the first applicant’s property.

Damage to the driveway

8. The long northern side boundary of Mr Mendham’s property forms the rear boundaries of properties to his north. At the eastern end is the first applicant’s property, then the second applicant’s. Across the back of those properties, adjacent to Mr Mendham’s boundary, runs a right-of-way providing access to a garage on a property further west, the owner of which is not a party to these proceedings. This right-of-way is unfenced at its eastern end where it joins the street, so it appears as a laneway but is owned by each applicant where it is upon their property.

9. The base of the jacaranda’s stem is hard up against the boundary fence and adjacent to the right-of-way where it crosses the second applicant’s property. The surface of the right-of-way on that land is raised significantly – the mounded earth highest next to the tree’s base and falling with distance from the tree. A couple of metres from the tree, the right-of-way on the first applicant’s property is slightly lifted and uneven. While I’m not convinced the right-of-way on the first applicant’s property would, in isolation, require repair, I accept that the surface on the second applicant’s property, adjacent to the tree, is so severely raised that it affects its use and is likely to cause drainage issues during heavy rainfall. In short, it requires reinstatement.

The jurisdictional test at s 10(2) is satisfied

10. I find that the tree has damaged both the first and second applicants’ properties, the latter’s severely, so according to s 10(2) I can make orders to address this. I go to s 12 matters.

Matters at s 12

11. The tree is against the boundary. Due to a mature hackberry (Celtis sp.) to its south, most of the jacaranda’s crown overhangs properties to the north of the respondent’s. Its stem is pushing against and displacing the fence; its root buttress is lifting the fence.

12. Removing or pruning the tree would ordinarily require permission from Inner West Council (‘Council’). The respondent has applied to Council in the past: once around six years ago as part of a Development Application that included removal of the tree; and once around three years ago to prune the tree. The first application was declined; the second approved, but to a lesser extent of pruning than the respondent wished.

13. I give considerable weight to s 12(b) of the Trees Act. Local government tree controls have been given much thought; they are made at the local government level to protect characteristics identified as locally important; the decision-making process is entrusted to council officers. Where possible, I am of the view that it is best to interfere with this process as little as possible. However, I have no evidence before me of Council’s reasoning when making past determinations regarding the jacaranda. If Council was aware of alternative solutions that would allow the jacaranda to be retained, such solutions are not apparent today. Council was notified of this matter and allowed the opportunity to participate via written submissions and at the onsite hearing, but has chosen neither.

14. Pruning or severing the roots to the extent necessary for driveway reinstatement would leave the tree prone to windthrow failure. Buttress roots supporting the tree would be severed or damaged.

15. The tree is magnificent, providing shade to all three properties and beyond, and contributing significantly to neighbourhood amenity. The tree contributes to the natural landscape of the respondent’s land and to the broader landscape. Late in the year, while it is flowering, its contribution to public amenity would be even greater than it is now.

The tree must be removed

16. The parties submit that, to allow water to drain to the street rather than being directed back into the properties, the raised section must be restored to its original level. Roots within this raised area must be ground out. Such damage to structural roots is likely to destabilise the tree, hence it must be removed. Without any reasonable alternative solution, I accept this to be so. This is an unfortunate loss of amenity, but fortunately a large hackberry on the respondent’s property remains, south of the jacaranda.

Damage to the first applicant’s property

17. A low branch extending from the jacaranda rests on the roof of an old outhouse within the first applicant’s fenced garden, adjacent to the right-of-way, before crossing the garden, below head height, toward her dwelling where it touches a fascia board and roof guttering. Wounds indicate that some side branches have been removed over the years.

18. The outhouse roof is old corrugated iron, rusted, without guttering. Only minor indentation has resulted from the weight of the jacaranda’s branch resting upon it. Considering the age and condition of the roof, and the minor contribution the tree has made to its current state, I would not make orders for this. Therefore I will not make the proposed order (2)(ii) in [5] above, but note the agreement between the parties.

19. The first applicant pointed to some fence palings that have been replaced along her side boundary, saying they were damaged by the long jacaranda branch. However I noted onsite that the fence is aged and deteriorating; and other palings here and there, away from the branch, have also been replaced. No orders are sought for this part of the fence.

20. The first applicant also pointed to damage parts of her dwelling’s roof, fascia and guttering. Damage here is minor; may not be caused by the tree; and no orders are sought for this.

21. Although the proposed consent orders include clearing of a sewer line ((2)(i) in [5] above), no evidence of the damage or its cause has been adduced. It follows that there is no basis upon which I can make that order.

Injury

22. I am not convinced that the mere presence of a branch within head height means it is likely to cause injury. However I accept the first applicant’s assertion that this branch has caused injury when people have run into it, and the first applicant’s husband had cuts and bruises after hitting the branch with his head. I cannot order that more care be taken, but I could order pruning of the branch. There is, though, no need to consider this now because the tree will be removed.

Costs

23. Commissioners of the Court do not have the power to award costs. I note the agreement between the parties regarding costs.

Extent of repairs

24. Works to repair the driveway section upon the second applicant’s property will disrupt the driveway section on the first applicant’s property, which is already damaged by age, wear-and-tear and, to some extent, roots of the jacaranda. Both sections of the driveway should therefore be replaced in the one action.

Orders

25. Proposed consent orders (2)(i) and (ii) will not be made for reasons given above. Proposed consent order (7) is not required given proposed consent order (8).

26. As a result of the foregoing, and noting the terms of agreement between the parties as set out at [5], the Court makes the following orders:

1. The application is granted.

2. Subject to the terms of these Orders, the Respondent is required to engage appropriately qualified contractors to carry out and complete the following works within six months of the date of the making of these Orders:

1. Repair of the driveway located at the rear of the properties of the First and Second Applicants at 38 Enmore Road, Newtown and 40 Enmore Road, Newtown in accordance with the scope of works set out in Option 1 of the Cannarg Quote (‘Driveway Works’).

2. Prior to the carrying out of the Driveway Works, the removal of the jacaranda tree (Jacaranda mimosifolia) (‘Jacaranda Tree’) located in the rear yard of the Respondent’s property at 26 Station Street, Newtown and the centre trunk of which is located approximately 1 metre from the northern boundary fence of that property (‘Boundary Fence’).

3. Removal of the palings within that section of the Boundary Fence which is located in the immediate vicinity of the Jacaranda Tree and which has been uplifted by the Jacaranda Tree and to any additional extent necessary to undertake removal of the Jacaranda Tree and the Driveway Works and replacement to original location following completion of those works.

3. The Respondent will provide 7 days’ notice to the First and Second Applicants prior to the carrying out of the works required to be carried out pursuant to Order (2).

4. All works to be carried out pursuant to Order (2) are to be carried out at the sole expense of the Respondent.

5. The First and Second Applicants must, in relation to any works required to be undertaken by the Respondent pursuant to these Orders, provide all reasonable access and attend to all steps that may be reasonably necessary in order to facilitate:

1. the carrying out of those works; and/or

2. the obtaining of any approvals or other authorisations which may be required.

6. The First and Second Applicants will provide 7 days’ notice to the owner of 42 Enmore Road, Newtown of the removal of the Jacaranda Tree and the carrying out of the Driveway Works.

7. Liberty is granted to apply to vary the Orders in the event of any delays to the carrying out of the works the subject of the Orders due to matters outside of the Respondent’s control.

____________________________

D Galwey

Acting Commissioner of the Court

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Decision last updated: 05 March 2019