Ali v Riezenkamp [2023] NSWLEC 1353 | Case summary

Land and Environment Court (NSW)|2023-06-22

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

COMMISSIONER: Mandy, Samantha and Errol Riezenkamp, the respondents in these proceedings, own a residential property in Mt Colah. A Sydney Blue Gum (Eucalyptus saligna) (the tree) grows on their property in the narrow area between their dwelling and their side boundary. Syed Rizwan Ali, the applicant in these proceedings, and his family own a property with a battle-axe driveway running along the common boundary shared with the respondents. The tree is pushing against the timber paling fence on the common boundary; its roots are lifting the paving of the applicant's driveway and a low retaining wall along the driveway's edge. Mr Ali has applied to the Court, pursuant to s 7 (Pt 2) of the Trees (Disputes Between Neighbours) Act 2006 (the Trees Act), seeking orders for the respondents to remove the tree and repair the damaged fence, driveway and retaining wall.
The parties were self-represented at the onsite hearing, during which I inspected the tree, the fence, the retaining wall, and the driveway. It was apparent that the common boundary fence is somewhat dilapidated beyond the area of the tree's influence. The parties were given the opportunity to make submissions regarding any orders that might be made for the remainder of the fence.

Effort to reach agreement

Since noticing the tree's impact to his driveway in or around 2020, the applicant has written to the respondents to bring the matter to their attention. He has knocked on their door several times, without answer. Prior to commencing these proceedings, he received no response from the respondents. I am satisfied he has made a reasonable effort to reach agreement with the respondents.

The tree

The tree is approximately 14 metres tall, with two stems each approximately 30-40 cm in diameter. Its health and form are typical for the species. It is less than a metre from the respondents' dwelling and is pushing against the fence. This is a tree that has grown in an unsuitable location. Already, its roots have significantly lifted the applicant's paved driveway and retaining wall and displaced the fence. If it increases in size, it will cause further significant damage. I am satisfied that the tree has damaged the applicant's property, and is likely to cause further damage in the near future.

Orders for tree removal and property repair

The tree must be removed to prevent further damage. The fence within 3 metres of the tree must be replaced and the driveway and retaining wall require repair.
I have considered the matters at s 12 of the Trees Act. The applicant has not contributed to the damage through either his actions or omissions. The damage has occurred during his ownership of the property. He brought the driveway damage to the respondents' attention soon after he first noticed it. The respondents took no preventative action, and the extent of damage has increased. The respondents will bear the costs of removing the tree and repairing the applicant's driveway and retaining wall.

Orders for fencing works

The tree has damaged a 6-metre section of the dividing fence on the common boundary. The paling fence is leaning and dilapidated along the entire length of the common boundary. The parties agreed that it needs replacement or repair in its entirety. Where a tree is found to have damaged a dividing fence in proceedings under the Trees Act, the Court has the power to make orders for further fencing works at s 13A of the Dividing Fences Act 1991 (the Dividing Fences Act); see Riggio v The Estate of the late Phyllis Annette Lockard [2011] NSWLEC 1292 at [20]-[23].
The applicant submitted that the dividing fence should be replaced. The respondents submitted that it should be repaired, if possible, as this would cost less, although I struggle to see how this might be done, given the condition of fence posts, rails and palings. I will make orders for fencing works along the entire length of the common boundary. The Court's jurisdiction in these proceedings does not extend to the applicant's boundary fence shared with another neighbour to the respondents' north.
In my view, the fence should be replaced, but I will provide the respondents with an opportunity to obtain a quote for its repair. A small Jacaranda near the front corner of the respondents' dwelling grows against the fence and will also need to be removed. Although it was not a subject of the application, the removal of vegetation required for fencing works can be ordered under the Dividing Fences Act. Other small trees on the respondents' property will need to be pruned or removed as necessary to provide clearance for the fencing works.
The section of fence damaged by the tree is only a small portion of the entire boundary fence. The fence, including the section damaged by the tree, would need replacing in the near future regardless of the tree damage. Therefore, I see no need to separate out the cost of that section from the total fencing costs within the orders. The parties will share the cost of the fencing works: 50% to be paid by the applicant and 50% paid by the respondents.
Pursuant to s 6 of the Trees Act, the respondents are not required to obtain the local council's consent for tree and vegetation removal ordered in these proceedings.

Orders

The Court orders: 1. The application is granted to the extent of the following orders. 2. The respondents are to engage and pay for a suitably qualified and experienced arborist (minimum AQF level 3) with all appropriate insurances to carry out the following works within 60 days of the date of these orders: 1. remove the Sydney Blue Gum (the tree) near the back corner of their dwelling and the Jacaranda near the front corner of their dwelling, both to ground level; 2. grind out the stumps and root collars of both trees to at least 200 mm below ground level; 3. remove any branches of other small trees, or the trees themselves, where the branches are within 300 mm of the boundary fence. These works are to be done in accordance with the Safe Work Australia (2016) 'Guide to managing risks of tree trimming and removal work'. 1. The respondents are to give the applicant 2 days' notice of the works in order (2). 2. The applicant is to allow all access required for completion of the works in order (2) during reasonable hours of the day. 3. Within 30 days of the date of these orders, the applicant and the respondents are to: 1. each obtain a quote from a suitably qualified contractor to repair any damaged sections of the applicant's retaining wall and driveway, for the width of the driveway and within 4 metres each side of the tree; 2. swap quotes and agree which contractor will be selected to carry out the works. If they cannot agree on one of the quotes, they have liberty to relist for the Court to select a quote. 1. The respondents are to engage the contractor from order (5)(b) to repair as quoted the applicant's driveway and retaining wall within 90 days of the date of these orders. 2. On reasonable notice, the applicant is to allow access for the works in order (6) during reasonable hours of the day. 3. Within 30 days of the date of these orders, the applicant and the respondents are to: 1. each obtain a quote from a licensed and suitably experienced fencing contractor to remove and replace the entire length of their common boundary fence with a similar timber paling fence, unless they agree on an alternative fence type. The respondents may also obtain a quote to repair the existing fence should they wish; 2. swap quotes and agree which quote will be selected to carry out the fencing works. If they can't agree on a quote, the cheapest quote to remove and replace the fence is to be selected. 1. Within 90 days of the date of these orders, the applicant and the respondents are to jointly engage and pay for the fencing contractor selected from order (8)(b) to carry out the quoted fencing works along their common boundary. 2. The applicant and the respondents are all to provide any access required to complete the fencing works during reasonable hours of the day.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 July 2023

Ali v Riezenkamp

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Judgment (8 paragraphs)

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Cases Cited (1)