Zapata v Strata Plan 42882

[2008] NSWLEC 1218

Land and Environment Court

of New South Wales

CITATION:

Zapata v Strata Plan 42882 [2008] NSWLEC 1218

PARTIES:

APPLICANT
Adela Zapata

RESPONDENT
Strata Plan 42882

FILE NUMBER(S):

20201 of 2008

CORAM:

Fakes AC

KEY ISSUES:

Trees (Neighbours) :- Removal of trees, risk of injury to persons, damage to property, erection of a sediment control fence and restrictions of future plantings.

LEGISLATION CITED:

Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING:

26/06/2008

EX TEMPORE JUDGMENT DATE:

26 June 2008

LEGAL REPRESENTATIVES:

APPLICANT
Ms A. Zapata, litigant in person

RESPONDENT
Strata Plan 42882, litigant in person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes AC

26 June 2008

20201 of 2008 Adela Zapata v Strata Plan 42882

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

The consequence of the Court’s decsion in this application is the making of formal orders pursuant to s.9 of the Trees (Disputes Between Neighbours) Act 2006. These orders are not reproduced as part of this decision but a copy of the Court’s Orders may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court’s web site at

1 ACTING COMMISSIONER: This is an application pursuant to s 7 of the Trees (Disputes Between Neighbours) Act 2006 made by Mrs Adela Zapata of 14 Frederick Street Hornsby concerning trees on the common property of Strata Plan 42882 at 12 and 12a Frederick Street Hornsby. Lot 1 (12 Frederick Street) is owned by Mr Stan Denham and Lot 2 (12a Frederick Street) is owned by Mrs Suk Lam. The common property in this matter is the driveway on the western side of the property that adjoins the applicant’s property.

2 The applicant was originally seeking the removal of a Cocos palm, removal of all trees in the driveway within 3m of her house, removal of all activities in the driveway garden that impede the repositioning of a brick wall and colour-bond fence back to the boundary line, the erection of a sediment control fence along the edge of the driveway garden, and restrictions on future plantings.

3 The applicant made the application on the basis of risk of injury to persons and to rectify/ prevent damage to property. The applicant is particularly concerned that the Cocos palm will fall onto her house. The applicant also contends that the trees are causing damage to a low brick wall and to the colour-bond fence.

4 As a result of the discussions at the on-site hearing, the applicant stated that she would be happy with the removal of the Cocos palm and a cotoneaster and with restrictions placed on future plantings and would forgo the other issues

5 The two trees in question are located in a narrow garden bed located between the respondents’ driveway and the dividing fence. The Cocos palm is a mature specimen planted approximately mid-way along the garden bed and a mature Cotoneaster at the upper/ north-western end of the garden bed.

6 The respondents have no disagreement with the removal of the Cocos palm but neither wish to see the removal of the Cotoneaster.

7 The trees, the wall and the fence were inspected from both properties. The main issue is the displacement of a low brick wall and an associated colour-bond fence.

8 Mrs Lam purchased 12 Frederick Street in 1987. In 1992 the land was sub-divided and an additional dwelling was built at the rear of the existing house. As part of these Council approved works, the colour-bond fence and the brick wall were built. Also part of this construction was an engineered concrete retaining wall at the north-western end of the respondents’ driveway. The engineered retaining wall is on the boundary line of the two properties.

9 At that time on 14 Frederick Street there was a house at the rear of the block. The land slopes from the north-east down to the southwest and from the north-west down to the south-east with number 14 being down slope of number 12. At the time of Mrs Lam’s subdivision, the land sloped naturally from her property to the vacant front yard of number 14 Frederick Street.

10 The colour-bond fence replaced a dilapidated timber fence. Due to the fall in the land, the installation of the fence left a gap between the bottom of the fence sections and the surface of the soil. In order to fill the gap between the fence and the soil, the low brick wall was constructed by laying 2-3 courses of bricks onto a thin layer of concrete placed on the soil with very little excavation. The low brick wall was not constructed as a retaining wall.

11 The wall and the fence were built on land belonging to number 14 Frederick Street. This was the subject of a dispute, since settled, between Mrs Lam and the previous owner of 14 Frederick Street.

12 The palm was planted soon after the driveway was completed. The cotoneaster appears to have been there before the works.

13 In 2003, the applicant’s house was built at the front of the property (the existing house was demolished). It appears to be a slab on ground and given the slope of the land, has required significant excavation of the land, particularly at the north-western end of the block where the slope is greatest. A treated pine retaining wall was built by the applicant to retain the soil that was left between the side passage of the house and the dividing fence and wall. This is approximately 800 mm high at the north-western end of the fence and brick wall. Beyond this point, the soil is retained by the engineered concrete retaining wall.

14 The current situation is that the base of the Cocos palm abuts the brick wall. This has caused displacement of the wall and a fence panel. The other area of most concern to the applicant is the last section of brick wall and fence before the engineered retaining wall. This section of brickwork is 3 courses high. There is a gap of about 100 mm between the bottom of the concrete layer and the soil. At this section there is also about 100mm of soil above the wall on the respondents’ side. There are some roots visible in the area under the wall.

15 Under s.12 of the Act, the Court must consider a number of matters. The relevant clauses in this case are:

(a) The trees are wholly located on the respondents’ property.
(h)(i) This clause relates to factors other than the trees that may have contributed to the damage. With respect to the brick wall, at the time of its construction, its role was to fill a gap between the bottom of the new metal fence and the soil. It was not designed or intended as a retaining wall. The subsequent construction of number 14 radically altered the soil levels. It is also likely that runoff from the driveway may have contributed to both the loss of soil from under the wall and to the build up of soil on top of the wall. The combined weight of water, soil and plants without an adequately engineered wall and no opposing mass of soil due to excavation has contributed to the current situation.

16. Under s.10(2) of the Act, the Court must be satisfied that the trees have caused, are causing, or could, in the near future, cause damage to property or injury to persons.

17. In this matter it is found that the Cocos palm is causing damage to the brick wall and fence. Its location in the garden bed and its proximity to the wall is such that remedial action is not possible. As it grows, it will continue to cause damage. The fear that the palm may fall on the house and cause injury to persons is unfounded. The cotoneaster is located further away from the brick wall and some remedial action could be taken to avoid future damage.

18. The orders of the Court are that the application to remove the palm is allowed but the application to remove the Cotoneaster is refused. Specifically the orders are:

1. The Cocos palm is to be removed to ground level.

2. A section of root barrier is to be installed along the boundary line from the concrete retaining wall for a length of two fence panels. The root barrier is to be of rigid material, eg. plastic, and is to be installed to a depth of at least 700 mm and is to extend above the soil level by at least 100 mm.
3. The works are to be paid for by the owners of Strata Plan 42882.
4. The removal of the palm is to be carried out within 90 days of the date of these orders.
5. The installation of the root barrier is to be done within 6 months of the date of these orders.

___________________

J Fakes
Acting Commissioner of the Court