Zangari v Miller
[2010] NSWLEC 1012
•19 January 2010
Land and Environment Court
of New South Wales
CITATION: Zangari v Miller [2010] NSWLEC 1012 PARTIES: APPLICANTS
RESPONDENTS
Vince and Katherine Zangari
Craig and Kerry MillerFILE NUMBER(S): 20822 of 2009 CORAM: Fakes C KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property, Compensation LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 CASES CITED: Yang v Scerri [2007] NSWLEC 592
Barker v Kyriakides [2007] NSWLEC 292DATES OF HEARING: 19/01/2010
DATE OF JUDGMENT:
19 January 2010EX TEMPORE JUDGMENT DATE: 19 January 2010 LEGAL REPRESENTATIVES: APPLICANT
Vince and Katherine Zangari (litigants in person)RESPONDENT
Craig and Kerry Miller (litigants in person)
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESFakes C
19 January 2010
JUDGMENT20822 of 2009 Vince and Katherine Zangari v Craig and Kerry Miller
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 Zangari of 72 Beronga Avenue Hurstville against the owners of a Liquidambar growing in the rear north-eastern corner of 74 Beronga Avenue. The owners of that property are Mr and Mrs Miller.
2 The applicants are seeking the removal of the tree, at the owners’ expense, as they contend that the tree has caused damage to a section of the concrete paved pool surround and that it may cause further damage to their property in the future.
3 They are also seeking compensation of a sum of approximately $7,599, $6,726.50 of which is a quote for the removal and replacement of the entire paved pool surround. The claim for compensation for replacement of the entire paved area is made on the basis that it is not possible to match the colour should only a small area be replaced. There is an unspecified amount for the cost of an arborist’s report and a structural engineer’s report. It should be noted at this stage that as the onus is on the applicants to prove the connection between the problem and the tree, these costs are deemed to be part of that responsibility. Therefore, compensation for those components of the claim is refused.
4 The tree was inspected from both properties. It is a mature Liquidambar planted in December 1985 in memory of the passing of Mrs Miller’s mother. Hence the tree has personal value to the respondents. It is about 1m from both the northern and eastern boundary fences. And is approximately 35-40cm in diameter at breast height. Several branches have been inexpertly cut to the fence-line with the applicants. This has been done at various times by both the respondents’ son and by Mr Zangari. This was apparently done to limit the falling of leaves and fruit into the applicants’ pool. This was another issue raised in the applicants’ submissions.
5 The tree appeared healthy and there were no obvious structural defects.
6 The pool surround was inspected. A section of concrete about 1.5m square in the north-western corner of the applicants’ property is the main subject of this application. The pool and its surrounds cover the rear of the applicants’ backyard. The paved surround extends to the boundary fences on three sides.
7 The respondents have lived in their house for over 25 years and the pool at 72 Beronga Avenue was in existence at that time. The edge of the pool itself is brick, and according to both parties, the previous owners had a garden bed retained with sleepers around the edge of the pool on three sides and brick paving.
8 The applicants purchased the property in 2001 and moved in in 2003. In 2004, they retained the brick edging but removed the brick paving and the garden beds and replaced the entire surround in stencilled concrete. According to Mr Zangari, the concrete slab is 100 mm thick and reinforced. There are no expansion joints as such but rather saw cuts, made for the same purpose, in various locations around the pool.
9 As stated previously, the section in contention is that in the north-western corner. This approximately 1.5m square section is defined by saw cuts to the north-east and the south-west. The north-eastern edge of this section rises gradually from the edge of the pool to the rear fence to a height of about 15-20 mm above grade at the most northern end. Mrs Zangari stated that this is a trip hazard and a visiting child stubbed his toe on that edge thus raising the issue of potential injury. There was no apparent lifting of the south-western section of that section of slab. The pavement at the edge of the north-western corner of the pool is slightly raised above the brick edge but so too is the pavement at the edge of the south-western corner of the pool.
10 A walk around the pool showed no other lifting along saw cuts but several fine cracks in a number of areas. Whilst the raised section of slab is the section closest to the Liquidambar, no roots were visible or were shown to me by the applicants.
11 Under s10(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, 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. 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 consider a number of matters under s12 of the Act. The relevant clauses in this case are;
- (a) The tree is wholly located on the respondent’s property.
(d) According to the respondents’ submissions and photographs contained in them, 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 to the locality.
(f) The tree has some value to public amenity as it can be seen from the rear of nearby residences.
(h) and (i) Other factors and steps taken – see paras 13 - 16
13 The applicants engaged Victor M. Ignatenko, a structural and civil engineer to inspect the pool surround and prepare a report. Mr Ignatenko inspected the site on 27 September 2009. In his report he describes the damage as “significant structural damage”. He refers to the tree in the neighbouring property, the Liquidambar, makes statements about its expected dimensions and writes:
- Roots of the existing tree induced significant damage to the footpath. At present, the footpath at the corner portion of 1.5 m x 1.5 m is lifted by up to 15 mm above the rest of the footpath. The roots would further affect the footpath and the pool structure. The Australian Standard AS2870 “Residential slabs and footings’ in Appendix B2.3 part ‘C’ recommends that tree planting near retaining walls, fences, concrete slabs, swimming pools and buildings should be restricted to a distance of ¾ the height of the mature tree…..The tree should be removed as soon as possible
14 There is no evidence in Mr Ignatenko’s report that he conducted any investigation to prove his assumptions. In my view, this report is unsubstantiated opinion and of no benefit to the applicants or the Court. With respect to AS2870 and the section quoted, if this recommendation were applied there would be no permissible tree plantings in any urban area and therefore the application of that section of that standard is impractical.
15 The applicants also engaged an arborist, Andrew Scales of Naturally Trees to inspect the tree and prepare a report. Mr Scales inspected the tree from the applicants’ property and stresses in his report that the inspection was of a preliminary nature and did not involve any detailed investigation beyond what was visible from the ground. He states that his conclusions are based on his experience. His assessment is that the tree is of low to moderate significance/ value with good health and structure. In his report he gives some information about the growth potential of the species, the location of the tree and the nature of the damage and makes the statement that the roots from the tree have caused the displacement of the slab. This is an assumption and not fact as there was no investigation beyond a visual assessment. He goes on to state, without a physical barrier, roots would continue to grow but recommends against this due to the potential destabilising effect. He then recommends the removal of the tree.
16 Neither the structural engineer nor the arborist confirmed the presence of roots. The applicants were reluctant to carry out any checks as this would involve lifting the slab.
17 In response to the applicants’ contentions, the respondents written and oral submissions contend that other factors such as workmanship, site preparation and settling may be an issue especially settlement after the removal of the garden beds.
18 Whilst the tree is close to the slightly lifted slab, the applicants have provided insufficient evidence to prove the connection between the tree and the damage. It was observed at the hearing that a Melaleuca bracteata is growing in the south-eastern corner of the property to the north-west of the applicants at a similar distance from the section of slab in question.
19 The applicants also raised the matter of leaf and fruit drop from the tree. In Barker v Kyriakides [2007] NSWLEC 292 and subsequent tree dispute principle, the dropping of leaves, flowers, fruit, seeds or small elements of deadwood by urban trees will not ordinarily provide the basis for ordering the removal of or intervention with an urban tree. This applies in this case. It is expected that some level of external housekeeping and maintenance is normal for people who live in leafy urban environments and who benefit from the environmental and aesthetic services that trees provide.
20 After hearing from the parties, reading the submissions and viewing the site, I conclude that whilst it is possible that the pavement may be lifted by roots, it is not sufficiently proven, on the balance of probability, that roots of the Liquidambar have caused the problem.
21 As none of the tests under s 10(2) are adequately satisfied, the Orders of the Court are that:
1. The application in its entirety is dismissed.
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