Zangari v Miller - [2010] NSWLEC 1012

Land and Environment Court

of New South Wales

CITATION: Zangari v Miller [2010] NSWLEC 1012

PARTIES:
APPLICANTS
Vince and Katherine Zangari
RESPONDENTS
Craig and Kerry Miller

FILE 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 292

DATES OF HEARING: 19/01/2010

DATE OF JUDGMENT:
19 January 2010

EX 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 WALES

Fakes C

19 January 2010

20822 of 2009 Vince and Katherine Zangari v Craig and Kerry Miller
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 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…

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 Zangari v Miller

Details

AGLC: Zangari v Miller [2010] NSWLEC 1012
Case: [2010] NSWLEC 1012
Decision Date: 19 January 2010

CaseChat Overview and Summary

The case of Zangari v Miller involved a dispute between neighbours over damage allegedly caused by a tree. Vince and Katherine Zangari sought the removal of a Liquidambar tree from their neighbour's property, Craig and Kerry Miller, claiming that the tree had caused damage to their pool surround and posed a risk of future damage. They sought compensation for the removal and replacement of the pool surround and for reports from an arborist and a structural engineer. The respondents denied the claims, asserting the tree's personal value and its contribution to the local ecosystem and biodiversity.

The primary legal issue was whether the tree had caused, was causing, or was likely to cause damage to the applicants' property or posed a risk of injury to persons, as required by the Trees (Disputes Between Neighbours) Act 2006. The court examined expert reports from a structural engineer and an arborist, which were deemed insufficient due to a lack of physical evidence linking the tree to the damage. The court also considered the tree's proximity to the pool surround and the presence of a nearby Melaleuca bracteata, which was not cited as a cause of damage.

The court ruled that the applicants had not provided sufficient evidence to prove a connection between the tree and the damage. The tree was deemed to be healthy and structurally sound, and the presence of roots causing the damage was not conclusively proven. The court noted that while leaves and fruit from the tree had been an issue, this did not ordinarily justify intervention under the established principles regarding urban trees. Consequently, the court dismissed the application in its entirety.

The court's decision emphasised the need for substantial evidence to establish a causal link between a tree and alleged property damage, underscoring the balance of probabilities required for such claims under the Act. The dismissal of the application reflected the court's view that the applicants had not met the requisite burden of proof to warrant an order for the tree's removal or compensation.

Orders