Zignic v Waistell - [2010] NSWLEC 1188

Land and Environment Court

of New South Wales

CITATION: Zignic v Waistell [2010] NSWLEC 1188

PARTIES:
APPLICANT
Ms M Zignic
RESPONDENT
Ms A Waistell

FILE NUMBER(S): 20315 of 2010

CORAM: Fakes C

KEY ISSUES: TREES (NEIGHBOURS) :- Damage to property
Compensation
Root barrier ordered

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

CASES CITED: Sait v Mason [2007] NSWLEC 293
Black v Johnson No 2 [2007] NSWLEC 513

DATES OF HEARING: 15/07/2010

DATE OF JUDGMENT:
15 July 2010

EX TEMPORE JUDGMENT DATE: 15 July 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Seymour [barrister]
Instructed by
Lindsay Brian [solicitor]
RESPONDENT
Ms A Pearman [barrister]
Instructed by
Audrey Egan [solicitor]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

15 July 2010

20315 of 2010 Zignic v Waistell

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 the owner of a property in Anembo Crescent Kiama Heights against the owner of a tree growing at the rear of an adjoining property.

2 The applicant was represented by Mr Seymour and the respondent by Ms Pearman.

3 The applicant is seeking the installation of a concrete root barrier as she contends that roots from the respondent’s tree have caused damage to her property and could continue to do so.

4 The applicant is also seeking compensation of a sum of $9,732.50 for rectification and preventative measures in relation to the alleged damage. These costs are summarised in a ‘Scott Schedule’ attached to the application.

5 Under s 10(2) of the Act, the Court must not make an order unless it is satisfied that a tree subject to the application has caused, is causing or could, in the near future, cause damage to the applicant’s property or could cause injury to any person.

6 The tree in question is a mature Ficus macrophylla (Moreton Bay Fig). It is growing in close proximity to a smaller Ficus obliqua (Small-leaved Fig). Both are locally indigenous species. In uncontradicted evidence they may be in excess of 100 years old. They are located in a fenced off section at the southern end of the respondent’s property. This area appears to be infrequently used.

7 Whilst there are two figs, it is agreed that the roots seen in the applicant’s back yard are from the Moreton Bay Fig. The roots of the Small-leaved Fig are not in question.

8 The damage said to be caused by the tree’s roots is cracking and lifting of a section of footpath; damage to a low, rendered brick garden edge; damage to a section of PVC downpipe; and damage to water pipes in a ground floor bathroom.

9 The dwelling on the property was approved in late 1990. The house was constructed by the original owner on the eastern portion of the block in order to take advantage of views…

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 Zignic v Waistell

Details

AGLC: Zignic v Waistell [2010] NSWLEC 1188
Case: [2010] NSWLEC 1188
Decision Date: 15 July 2010

CaseChat Overview and Summary

Ms Zignic brought an application against Ms Waistell under the Trees (Disputes Between Neighbours) Act 2006, seeking the installation of a concrete root barrier and compensation for damage allegedly caused by the roots of a tree on the respondent’s property. The applicant claimed that the roots of a Moreton Bay Fig had caused damage to her property and could continue to do so. The tree in question was located on the respondent’s property, and while it was agreed that the roots in the applicant’s backyard were from the Moreton Bay Fig, it was also acknowledged that the roots of the Small-leaved Fig were not in question. The applicant sought compensation for rectification and preventative measures in relation to the alleged damage, totaling $9,732.50, as summarised in a ‘Scott Schedule’ attached to the application.

The court had to determine whether the tree had caused, was causing, or could in the near future cause damage to the applicant’s property or could cause injury to any person, as required by s 10(2) of the Act. The applicant claimed that the tree’s roots had caused damage to a section of footpath, a low, rendered brick garden edge, a section of PVC downpipe, and water pipes in a ground floor bathroom. The applicant had purchased the property in 1999 and had been tenanted since then. The court found that the nexus between the tree and the damage to the footpath, garden edge, and downpipe was proven on the balance of probabilities, and future damage was likely. However, the nexus between the tree and the damage to the leaking water pipe in the bathroom was not proven.

The court also had to consider the relevant factors under s 12 of the Act, including the tree's location, age, and contribution to the local ecosystem and scenic value. The court found that the tree was likely to have local historical and social value, contribute to the local ecosystem and biodiversity, and have intrinsic value to public amenity. The court also considered the respondent's argument that she was not notified of the alleged damage to the applicant's bathroom until letters of claim were received some two months after the problem with the bathroom. The court found that the respondent was denied any chance of taking action as a result of this delay.

The court ordered the installation of a root barrier to prevent future damage and the making good of damaged property. The root barrier must be at least 7 m from the dividing fence, and any spoil is to be placed on the lawn to the west of the trench (away from the tree). The applicant is to obtain three quotes for the installation of an impervious root barrier and for the replacement of the damaged section of concrete path, the repair of the low brick garden wall, and for the repair and replacement of the damaged elbow of the downpipe. The respondent is to pay the applicant 80% of the cost of the completed works within 21 days of the receipt of a tax invoice for the completed works. The compensation claim, as itemised in the Scott Schedule, claims costs for damage not proven to be caused by the tree, specifically item 4.2 and 4.7. No compensation will be awarded for these items.

Orders