Vella v The Owners of Strata Plan 8670

[2007] NSWLEC 365

Land and Environment Court

of New South Wales

CITATION:	Vella v The Owners of Strata Plan 8670 [2007] NSWLEC 365
PARTIES:	APPLICANT Tony Vella RESPONDENTS The Owners of Strata Plan 8670
FILE NUMBER(S):	20178 of 2007
CORAM:	Moore C - Brown C - Fakes AC
KEY ISSUES:	Trees (Neighbours) - Neighbour Application :- Removal refused Compensation
LEGISLATION CITED:	Trees (Disputes Between Neighbours) Act 2006
DATES OF HEARING:	28 May 2007
EX TEMPORE JUDGMENT DATE:	28 May 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr W Purdon, solicitor RESPONDENT Mr J Mueller, solicitor J S Mueller & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C
BROWN C
FAKES AC

28 May 2007

07/20178 Tony Vella v The Owners of Strata Plan 8670

JUDGMENT

1 COMMISSIONERS: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). The application is made by Mr Tony Vella who is the owner of a block of units at 4 Caronia Avenue, Cronulla. The application concerns five Paper Bark trees and an Ironbark tree located on the adjacent property, which is a block of units known as 6 Caronia Avenue, Cronulla.

2 We have been provided with a survey which shows that each of those six trees is located in a fashion where more than 50% of the trunk at the base of each of those trees is located on 6 Caronia Avenue. We are, therefore, satisfied that there is jurisdiction under the Act to deal with the trees.

3 Mr Vella’s application seeks the removal of each of the trees and makes an application for compensation or rectification of the damage that he says is occasioned to his property.

4 It is important to note, in the context of the application, that Mr Vella’s property is some 50 years old and it would appear that the concrete driveway (which is on the side of Mr Vella’s units closest to the property where the trees are located) appears to date from the time of construction of his building.

5 It is convenient to deal with the trees by dealing with the Paper Barks and the Ironbark separately - there being effectively two sets of issues requiring resolution.

6 We have had the opportunity of inspecting the trees from both sides of the boundary and hearing evidence from Mr Bremner, an arborist called to give evidence on the half of the respondent Owners Corporation.

7 With respect to the Paper Barks, it is clear that they were planted, in general terms, at a time contemporaneous with the construction of the building on 6 Caronia Avenue. They are mature specimens and, on Mr Bremner’s evidence and on our observations, are unlikely to increase significantly in size.

8 Their root bowls are resting to varying degrees on the concrete slabs on Mr Vella’s side of the fence and it is obvious that the root systems extend under those slabs.

9 There is some cracking of these slabs which, on Mr Bremner’s evidence, may possibly be linked to the root systems. However, it is equally able to be observed that other elements of the concrete on Mr Vella’s property are also significantly cracked at locations that are well removed from the trees and where it is unlikely to impossible that the damage would have been caused by the roots of those trees.

10 This slab damage is comparatively minor and, with the exception of a number of small trip hazards along side of the building, the damage is purely aesthetic.

11 Despite a submission made by the assistant to Mr Vella’s solicitor concerning pedestrian access, we are satisfied that there is no basis to hold that passage of vehicles or pedestrians along the driveway is in any way inhibited by or at risk because of the presence of the root bowls of the Paper Bark trees.

12 As there is some minor damage occasioned in all likelihood by those tree roots, the jurisdiction of the Court pursuant to section 10(2)(a) of the Act can thus be invoked with respect to them. However, we are not satisfied, because of these trees’ state of maturity and the absence of likelihood of further significant damage being caused by these trees, that we should be prepared to invoked the jurisdiction of the Court and order their removal.

13 No issues arise with respect to the small brick wall and fence (on top of part of the brick wall) between the two properties because the survey makes it clear that wall and fence is entirely on the respondent’s property and therefore cannot be subject of an application by Mr Vella.

14 We are satisfied, with respect to the Paper Bark trees, that it is appropriate to order that a number of small trip hazards at the joints between a number of the slabs be ground down and that be at the cost of the respondent.

15 With respect to the Ironbark tree at the front of the property, it is conceded by the respondent that it has caused damage – not merely to Mr Vella’s driveway but also to the driveway of the respondent’s own property.

16 We are satisfied that there is sufficient damage to warrant some work being ordered to be undertaken.

17 In this regard, the submission is made on behalf of the respondent that, as Mr Vella conceded he had been aware of the damage to his driveway for some seven or eight years, as a consequence, there should be some apportionment of the cost of rectification.

18 We have carefully considered the cracking and the area of concrete which might need to be lifted and re-laid.

19 We are satisfied that, in fact, that is capable of being defined by a crack running in roughly a north-south direction in the slab closest to the tree and closest to the street and by a quarter circular section of the slab defined by a crack on the slab next towards the building.

20 In this regard, we have or are obliged to have regard to the provisions of s 12(h) of the Act, which deals with what steps (if any) might have been taken or should have been taken by the applicant to mitigate the damage or prevent or rectify any further damage.

21 We are satisfied that the period of time that has elapsed since Mr Vella first became aware of the damage warrants the order including apportionment of the cost of this work.

22 We accept the submission made on behalf of the respondent that it would be reasonable to oblige the parties to share equally the cost of replacement of that portion of the slab.

23 In this regard, we propose to order that Mr Vella obtain three quotations for the replacement of the portion of the slab that we have defined and that the respondent is to pay one half of the cost of the lowest of those quotations provided to it.

24 Because the works are minor, Mr Vella need obtain only two quotations for the grinding down.

25 The respondent shall, within 28 days of being satisfied that the works have been carried out, pay the lower of those quotations to Mr Vella.

26 A similar payment regime shall exist for payment of half the cost of the replacement of the concrete at the front.

27 We are also of the view that any work that should be undertaken to the slab at the front subject to an order that no work is permitted to interfere with or damage the roots of the Ironbark and that that will be a requirement of the orders.

28 There was foreshadowed, in Mr Vella’s application, an application for legal costs in these proceedings. That question has not been delegated to us by the Chief Judge and will need to be pursued, if Mr Vella is so advised, by way of Notice of Motion.

29 We note that, with respect to mitigation, it was Mr Vella who caused applications for removal of the Ironbark to be made in mid-2006 but that that application for removal was made some six years or so after Mr Vella has acknowledged that he became aware of the damage that was caused by that tree.

Tim Moore

Commissioner of the Court

Graham Brown

Commissioner of the Court

Judy Fakes

Acting Commissioner of the Court