Wazrin Pty Ltd v Pearson

[2009] NSWLEC 1420

Land and Environment Court

of New South Wales

CITATION:

Wazrin Pty Ltd v Pearson [2009] NSWLEC 1420

PARTIES:

APPLICANT
Wazrin Pty Ltd

RESPONDENT
Stuart Pearson

FILE NUMBER(S):

20725 of 2009

CORAM:

Fakes C

KEY ISSUES:

TREES (NEIGHBOURS) :- Removal of tree, Damage to property and injury to people

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

CASES CITED:

Yang v Scerri [2007] NSWLEC 592

DATES OF HEARING:

11 December 2009

EX TEMPORE JUDGMENT DATE:

11 December 2009

LEGAL REPRESENTATIVES:

APPLICANT
Ms L Wren (agent)

RESPONDENT
Mr S Pearson (litigant in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

11 December 2009

20725 of 2009 Wazrin Pty Ltd v Stuart Pearson

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 Wazrin Pty Ltd, the owners of a residential flat building at 2 Ethel Street Randwick, against the owner of a palm tree growing at the rear of 56 Howard Street Randwick. The owner of that property is Dr Stuart Pearson.

2 The applicant was represented by Ms Lauren Wren, Senior Property Manager, Raine and Horne Randwick and assisted by Mr Terry Brandtman, Manager, Raine and Horne Randwick. Also in attendance were Mr Bryan Bourke, Tree Management Officer, and Mr Robert Ryan from Randwick City Council.

3 The applicant is seeking the removal of the tree as it contends that dead fronds may fall from the palm and cause injury to persons. The applicant also contends that the tree has damaged and displaced a section of brick retaining wall to the point where it has become dangerous and may collapse. The application also expresses a concern about the potential failure of the entire tree.

4 The tree is a mature Phoenix canariensis (Canary Island Date Palm) growing approximately 800 mm from the rear fence of the respondent’s property. That fence forms part of the northern side boundary of the applicant’s property. The tree is healthy and holds a small percentage of dead fronds.

5 The fronds overhang the side driveway and main pedestrian access to the units. The live fronds are in close proximity to the building but have not caused, and are not causing, damage to the building.

6 The northern boundary of the applicant’s property to the west of the front of the building is bounded by a brick retaining wall ranging from 6 to approximately 12 courses high. On top of this wall is a timber paling fence supported by metal posts, the base of many of which are quite rusted.

7 The timber fence is in a dilapidated condition for its length and there is no dispute with respect to the need for its replacement due to its age and condition.

8 However, in order to replace the timber fence, the eastern three sections of the retaining wall will need to be rebuilt. It is these sections of the retaining wall that the applicant contends are displaced and cracked because of the palm.

9 The most easterly of the sections is 6 courses high. There is a horizontal crack between the lowest two courses of bricks. This crack tracks diagonally to the top western corner of that section. Between the second and third sections of wall there is another more vertical crack in the bricks from the top to the bottom of the wall. The palm is about midway along the second section of wall. Each section is approximately 2 m long. The three sections are displaced off vertical.

10 The applicant is seeking the reinstatement of this section of wall and has been quoted a sum of $8,250 for this work.

11 The tree was inspected from both properties. The base of the palm was covered in mulch but showed the typical base of a Canary Island Date Palm in that the root crown forms a mound. It is highly probable that root pressure has caused cracking and displacement of the wall. Some roots of the palm were visible beneath the wall on the applicant’s side as were roots from a Monstera also growing in the respondent’s garden.

12 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 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.

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

(a) The palm is wholly located on the respondent’s property.
(c) Dr Pearson argues that the tree has local social and historical value as it is a species used in the early part of the twentieth century and is contemporaneous with the vintage of the house which was constructed in 1910. He states that these palms are common throughout the Randwick local government area and are part of its landscape character.
(d) In a letter to the respondent from Randwick City Council in response to this application made under the Act and uncontested by either party, Mr Bourke states that the tree contributes to the local ecosystem and to biodiversity.
(e) The tree contributes to the scenic value of the land on which it is growing and is valued by the respondent for the privacy and screening it provides as his rear garden is overlooked by the 3 storey home units.
(f) The tree can be seen by others in the local area and therefore contributes to public amenity.
(h)(i) The retaining wall is likely to have been constructed when the applicant’s site was developed – probably in the late 1960s/1970s. The method of construction may not meet current standards. The respondent pointed out the absence of a return at its eastern end and the lack of weep holes. However, apart from the three sections in question, the rest of the wall is still vertically aligned with no significant cracks.
(h)(i)(ii) The applicant’s agents have written to the respondent about the wall on several occasions over the past five or so years. The applicant also applied to council to remove the tree but was informed that this was not possible as the applicant did not own the tree. The respondent has removed the dead fronds generally on an annual basis.
(j) Other matters. At the on-site hearing, the respondent raised the possibility that the wall may be on his property as he thought that the property line may be out by up to 250 mm. He questioned the accuracy of the survey. If this is the case, the Court has no jurisdiction with respect to the retaining wall as it may belong to the respondent and not the applicant.

14 Despite the uncertainty with the ownership of the wall, the Court can still consider the risk of injury to persons as a result of either the whole tree failing or from the falling of dead fronds.

15 There is no evidence to suggest that the entire tree will fail. This would be an extremely unlikely event given the species.

16 However, there were several dead fronds that could fall from the tree in the near future. The base of the fronds of this species has sharp spines. Given that the palm overhangs the main pedestrian entrance to the applicant’s building, injury could arise if a frond was to fall. As such, I conclude that one of the tests in s 10(2) is satisfied and the jurisdiction is enlivened.

17 The interim orders of the Court are as follows:

1. The application to remove the tree is dismissed.
2. The respondent is to engage and pay for an AQF 3 level arborist to remove the dead fronds from the Phoenix canariensis . Only the dead fronds are to be removed. This must be done in accordance with AS4373:2007 Pruning of Amenity Trees with particular reference to clauses 5.2 and 7.4. The tools used for pruning shall be disinfected before and after the removal of the fronds to minimise the risk of infecting the tree (and subsequent trees) with Fusarium oxysporum .
3. This work is to be completed within 30 days of the date of these orders and is to occur on an annual basis within 14 days either side of the anniversary of the initial pruning.

18 To deal with the uncertainty of the ownership of the wall, the following directions are made:

1. The respondent is to provide the Court and the applicant with a surveyed plan, prepared by a registered surveyor, of his rear property boundary. This is to be filed with the Court within 6 weeks of the date of the hearing.
2. The matter is to be re-listed for a final hearing in Court at 9.30 am on Monday 15th February 2010. Subject to the survey plan, further orders may be made with respect to the brick retaining wall.

___________________

J Fakes
Commissioner of the Court