Wagener v Satsoc Pty Ltd

[2010] NSWLEC 1018

Land and Environment Court

of New South Wales

CITATION:

Wagener v Satsoc Pty Ltd [2010] NSWLEC 1018

PARTIES:

APPLICANTS
Karl & Simone Wagener

RESPONDENT
Satsoc Pty Ltd

FILE NUMBER(S):

20674 of 2009

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Damage to property

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

27/01/10

 
DATE OF JUDGMENT: 

27 January 2010

EX TEMPORE JUDGMENT DATE:

27 January 2010

LEGAL REPRESENTATIVES:

APPLICANT
Karl & Simone Wagener (litigants in person)

RESPONDENT
Mr H Costas (agent)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

27 January 2010

20674 of 2009 Wagener v Satsoc Pty. Ltd

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 s7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mr and Mrs Wagener of 20 Tunks Street Ryde against the owner of 7 trees growing at the rear of villa 4, 18-20 Hancott Street Ryde. Satsoc Pty Ltd owns that property and Mr Costas represented his wife who owns the company.

2 The applicants are seeking the removal of the trees as they contend that they have caused, and will continue to cause, damage to their property. They are also claiming compensation of $3,385, that being quotes of $350 for the repair of an existing colorbond fence and $3035 to remove and replace a section of concrete paving. The latter element of the compensation claim is now not pressed and no order regarding that claim will be made.

3 The damage to property substantially relates to the alignment of four panels of the metal side boundary fence and the displacement of concrete blocks from beneath the fence panels. The applicants claim that the trunk of one tree has pushed the fence off its vertical alignment and that several other trees are encroaching to a point where they too would cause displacement. They also contend that the roots of the trees have caused the cracking and displacement of concrete sections beneath the panels. The respondent accepts that the trees have caused the displacement of the fence but wants the trees retained.

4 The trees were inspected from both properties. They are 7 xCupressocyparis leylandii (Leyland Cypress) growing along the south-western fence at the rear of the respondent’s property. 18-20 Hancott Street is a complex of villa units built in about 2003. Mr Costas worked on the construction site and stated that the garden bed that surrounds the trees was the original soil level. According to the respondent’s written submissions, the trees were required by Ryde council to be retained as part of the development approval for the villas.

5 The trees are about 9-10m tall and, with the exception of one tree, are in average, healthy condition and growing relatively slowly. Numbering the trees from the south-east to the north-west, tree 7, is in very poor condition and a substantial part of the canopy is dead. This tree is located in the far corner of the property adjacent to a boundary fence both the applicants and the respondent share with their neighbour to the rear.

6 The land between Hancott Street and Tunks Street slopes down to the south- west. On the applicants’ side of the fence there has been a reduction in the ground level of up to about 300 mm at the fence line, to create a level terraced area. These level changes, the fence and the trees were all present when the applicants purchased their property in September 2004 and the respondent in January 2008.

7 According to Mr Wagener, he has tried to realign the fence on several occasions with limited success. He removed the displaced concrete blocks at the base of the fence as he considered their sharp edges to be a risk of injury to his child. Photographs submitted by the applicant show the concrete as long rectangular blocks that appeared to have been formed on the ground to act as a filler between the bottom of the fence and the ground. On the respondent’s side of the fence, it appeared as though concrete pavers had been installed vertically to retain the soil on the respondent’s side of the fence. When viewed from the applicants’ side, the soil appeared to be stable.

8 There are four panels of fence in question. Numbering these in the same direction as the trees, it is clear that tree 7 is growing against the top rail of panel 4. At the on-site hearing, a string line was set up within the respondent’s property to determine the correct alignment of the fence and the relative positions of each of the trees. Apart from tree 7, tree 6 is also growing in a position likely to affect the fence. The other trees appeared to be clear of the alignment.

9 Apart from the trunks of the trees, the applicants are also concerned about the roots of the trees placing upward pressure on the fence. From the applicants’ property, several large roots were visible. One >100mm in diameter, probably from tree 4, has been cut about 700mm from the fence with an incomplete cut made closer to the fence. Mr Wagener stated that this had been done by their builder. There are two large roots, probably from trees 3 and 4, at the base of the post between panels 1 and 2. One of these roots is growing along the bottom of panel one in the same direction as the fence. No roots appear to have caused buckling of the bottom rail.

10 The ground beneath panels 1 and 2 is a garden bed yet to be planted. Given the stability of the soil on the respondent’s property and the relatively small level change, there appears to be no reason why the gap between the soil and the fence could not be managed by adding more soil.

11 Under s10(2) of the Act, the Court must not make an order unless it is satisfied that any of the trees has caused, is causing, or is likely in the near future to cause, damage to the applicant’s property or is a risk of injury to persons. In Yang v Scerri [2007] NSWLEC 592, a rule of thumb, which I consider is also appropriate here, puts the near future as being a period of 12 months from the date of the determination. That said, the tests must be applied to each tree. . Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of whether the damage or risk is sufficiently serious to warrant the intervention of the Court, and if so what should be ordered and who should pay.

12 The Court must also consider a number of matters under s12 of the Act. The relevant clauses in this case are;

(a) The trees are wholly located on the respondent’s property. There was some discussion with respect to tree 7 perhaps being partly on the property that adjoins both the respondent’s and applicants’ properties. However, I am satisfied that this tree is substantially on the respondent’s property.
(d) The respondent contends that the trees provide habitat for birds and animals.
(e) The trees contribute to the natural landscape and the scenic value of the land on which they are growing and provide a visual screen from the adjoining properties.
(f) The trees have limited value to public amenity but they can be seen from Tunks Street.
(g) They would play a role in soil retention and stability due to the changes in ground level.

13 Returning to s10(2) of the Act with respect to each tree. Tree 7 has caused damage to the fence and, if the fence was to be aligned vertically, so too would tree 6. Therefore as at least one of the tests under s10(2) is satisfied, the Court’s jurisdiction enlivened with respect to these trees and the Court can make an order. The position and condition of tree 7 and the position of tree 6 justify their removal. Whilst there are obvious roots from at least two of the other trees, they do not appear to have caused damage to the fence but may have caused damage to the concrete infill. However, with respect to these trees, the damage is not sufficient to warrant the removal of those trees.

14 The orders of the Court are:

1. The application to remove trees 6 and 7 is upheld.
2. The application to remove trees 1 to 5 is dismissed.
3. The respondent is to organise and pay for an AQF level 3 arborist, with the appropriate current insurances, to remove trees 6 and 7. The stumps are to be removed to at least 100 mm below ground. This work is to be undertaken within 60 days of the date of these orders. All work is to be carried out in accordance with the WorkCover Code of Practice for the Amenity Tree Industry.
4. The respondent is to organise and pay for the repair and realignment of the four (4) panels of fence. The bottom of the fence is to be elevated at least 40 mm above the height of any surface roots. If new posts are to be installed, roots should be bridged rather than cut. This work is to be completed within 4 months of the date of these orders.
5. The applicants are to provide all reasonable access for any of these works to be carried out as long as a minimum of three working days notice is provided.
6. The applicants are to be responsible for any infilling between the bottom rail of the fence and their ground level.

___________________

J Fakes
Commissioner of the Court