Tou v Maskiney - [2010] NSWLEC 1068

Land and Environment Court

of New South Wales

CITATION: Tou and anor v Maskiney [2010] NSWLEC 1068

PARTIES:
APPLICANTS
Iat Sang Tou
Hilda Hing Hing
RESPONDENT
Charles Maskiney

FILE NUMBER(S): 20919 of 2009

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property
Compensation
Injury to persons

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 22/03/10

DATE OF JUDGMENT:
22 March 2010

EX TEMPORE JUDGMENT DATE: 22 March 2010

LEGAL REPRESENTATIVES: APPLICANT
Ms Helen Sin (solicitor)
RESPONDENT
Ms Susan Barry-Cotter (solicitor)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

22 March 2010

20919 of 2009 Tou v Maskiney

JUDGMENT

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

1 COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by Mr and Mrs Tou of 28 Starkey Street Forestville against the owner of a tree growing at 30 Starkey Street. The owner of that property is Mr Maskiney. The applicants were represented by Ms H Sin, solicitor and the respondent by Ms S Barry-Cotter, solicitor.

2 The applicants are seeking the removal of the tree, a mature Casuarina cunninghamiana (River She-Oak), at the owner’s expense, as they contend that the tree has caused damage to their property and could be a risk of injury to persons. They are also seeking compensation for a number of items.

3 The damage, said to have been caused by the roots of the tree, is the blocking of the applicants’ sewer and cracking and lifting of their concrete driveway and pathway. The risk of injury is the risk of tripping on a raised section of driveway and on exposed roots in the front lawn.

4 The original application (exhibit A) seeks the ordering by the Court of: removal of the tree, the payment of a total of $8,628.40 in compensation and for the respondent to pay for the clearing of the sewer after the removal of the tree. After the directions hearing, the applicants lodged a revised claim for a total of $21,036.50 (exhibit B). Both claims include costs for the fee to file the application and the revised claim includes $4,400 in legal fees. Commissioners do not have the jurisdiction to award such costs. Similarly, both claims include a total of $490 for an arborist’s report and a quotation fee. These are costs associated with the making of the application and will not be awarded. It should be noted that the onus is on the applicant to prove the connection between the damage and the tree.

5 The additional claims are an increase of about $2,800 for concreting and, rather than the clearing of the sewer, the applicants are now seeking the removal and replacement of about 25m of sewer pipe (about $4800) and the installation of a root barrier ($2000).

6 The tree is a mature and healthy River She-Oak. According to the applicants, this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tou v Maskiney

Details

AGLC: Tou v Maskiney [2010] NSWLEC 1068
Case: [2010] NSWLEC 1068
Decision Date: 22 March 2010

CaseChat Overview and Summary

The applicants, Iat Sang Tou and Hilda Hing Hing, sought the removal of a mature Casuarina cunninghamiana tree located on the property of the respondent, Charles Maskiney, at 30 Starkey Street, Forestville. The applicants argued that the tree had caused damage to their property, including blockages in their sewer and cracking and lifting of their concrete driveway and pathway. They also claimed the tree posed a risk of injury to persons. They sought the tree's removal at the respondent's expense, compensation for the damages, and the clearing of the sewer. The applicant's claim was later revised to include additional compensation for the replacement of the driveway and the installation of a root barrier.

The primary legal issue before the Court was whether the tree had caused, was causing, or was likely to cause damage to the applicants' property or was likely to cause injury to persons. If these conditions were met, the Court could then consider whether the damage or risk was sufficiently serious to warrant intervention and what should be ordered. The Court also had to consider several factors under the Trees (Disputes Between Neighbours) Act 2006, including the location of the tree, its contribution to the local ecosystem and biodiversity, and the steps taken by the applicants.

The Court found that the tree had indeed caused damage to the applicants' property, particularly to sections of the concrete driveway and the footpath. It was reasonable to assume that the tree had contributed to the blockage of the sewer. While there was a risk of injury due to tripping on exposed roots, access to the house was not significantly restricted. The Court concluded that the tree should be removed as there was no practical way to retain it and repair the damage. However, the extent of works and compensation sought by the applicants was deemed excessive, as there was no proof that the tree had caused damage to the further extremities of the driveway, sewer, and pathway. The Court also found it unreasonable to allow compensation for concrete in addition to what currently existed.

The Court ordered that the tree be removed by the respondent, who must pay for the work to be carried out by a qualified arborist. The applicants must provide reasonable access for these works. The applicants and the respondent's tenant must be given at least three working days' notice of these works. The works must be completed within 40 days of the Court's orders. The respondent must pay 80% of the cheapest of three quotes for the removal and replacement of the driveway and pathway or $3,200, whichever is the least cost. These works must be completed within 90 days of the Court's orders. The respondent must also pay for the clearing of the sewer after the tree's removal.

Orders