Bengali v Hadchiti

CASES CITED: Black v Johnson (No 2) [2007] NSWLEC 513

APPLICANT Banoo Bengali (Litigant in person)

LEGAL REPRESENTATIVES: RESPONDENT George Hadchiti (Solicitor) SOLICITOR Advance Legal

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 ACTING COMMISSIONER: Ms Bengali (the applicant) is the owner of 6/83 Dutton Street, Yagoona (the land). She makes an application under the Trees (Disputes Between Neighbours) Act 2006 (the Act) to rectify and prevent property damage by a Rubber tree (the tree) growing on adjoining land to the south.

2 She seeks orders that the owner of the tree remove it and stump grind the roots around it.

3 Mr Simon Hadchiti (the respondent) is the owner of 37 Glassop Street, Yagoona (the property) the adjoining land to the south. He is represented at the hearing by his brother, solicitor Mr George Hadchiti.

4 On the basis that the application has proceeded beyond the directions hearing to this on-site hearing, I am satisfied that: o The applicant is owner of the land in accordance with s 3(1) and s 7 of the Act; o The applicant has made reasonable effort to reach agreement with the respondent in accordance with s 10(1)(a) of the Act; o The applicant has given notice to the parties in accordance with s 8 of the Act; and o The property is "certain land" in accordance with s 4(1), and not land to which the Act does not apply (s 4(2)).

5 I have observed the dividing fence, and both parties agree that the fence is on the common boundary. The tree is growing about 3 m on Mr Hadchiti's side of the common boundary. On that basis I find that the tree is situated wholly on the property, meeting s 4(3) and s 7 of the Act.

6 As a consequence there is an application that the Court may determine.

7 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property on the land? Is the tree now causing damage to the applicant's property on the land? Is the tree likely in the near future to cause damage to the applicant's property on the land? Is the tree likely to cause injury to any person?

8 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders?

9 Further, before determining an application, the Court is to consider the matters in s 12 of the Act. The tree 10 The tree is a Rubber tree (Ficus elastica), about 15 m tall with two major trunks. It is a tree within the meaning of that term in s 3(1) of the Act. Some branches of the tree are in contact with the roof of Ms Bengali's unit. Damage 11 Ms Bengali showed us the courtyard between her unit and the common boundary, where the paving had been damaged by roots of the tree. The pavers have been stacked nearby to allow removal of tree roots. At the hearing she explained that several roots about 40-50 mm diameter had been found under the damaged areas of paving. The courtyard is shown as part of the unit property on the strata title documents, and those documents state: The strata of the garden areas extend between 2 metres below and 6 metres above the upper surface of the ground floor of the respective adjoining unit except where covered. On that basis, and as the courtyard is not covered, I am satisfied that the paving is Ms Bengali's property on the land, and damage to the paving meets the first test in s 10(2)(a) of the Act.

12 As a consequence the Court has power to make such orders as it thinks fit regarding the tree, in accordance with s 9 of the Act. s 12 Considerations 13 Addressing the matters in s 12 which the Court is required to consider: (a) The tree is located about 5 m from the wall and roof of Ms Bengali's unit, but the majority of its crown is over her land, and branches are in contact with the wall and roof. (b) Rubber trees are not protected by the Tree Preservation Order of Bankstown City Council. (c) The tree species is considered a weed. There is no evidence or indication that the tree has any historical, cultural, social or scientific value. (d) The tree may make a very small contribution to the local ecosystem, through provision of food, shelter and nesting sites for some species. (e) The tree makes some contribution to the natural landscape and scenic value of the property and the locality by providing a tall mass of dark green vegetation. But its growth close to and in contact with the adjacent building detracts from the well maintained appearance of the unit complex. (f) The tree makes some contribution to public amenity through oxygen production, carbon sequestration, cooling summer shade, reduction of stormwater runoff, and deflection and dispersal of strong winds. (g) The roots of the tree are likely to reduce soil erosion nearby. (h) Damage (i) Contribution other than the tree, Act or omission by applicant:

1. There are no other trees likely to be contributing to the paving damage. 2. Mr Hadchiti bought the property in 2002. He says that the tree was present at that time. He claims that Ms Bengali and the developers of her property came to the tree, and that damage could have been avoided by building further from the tree which would have been possible at the design stage. He claims that discussion in Black v Johnson (No 2) [2007] NSWLEC 513 supports such an approach. 3. However, I note that the strata plans are dated 1986, and by its present appearance the tree is still a young tree. I consider that the tree may not have been present or may not have been noticeable when the strata development was designed. On that basis I find there was no reason why the unit should have been built further from the tree. 4. I find there is no other act or omission by Ms Bengali that has contributed to damage by the tree.

(ii) Applicant's or tree owner's steps to prevent or rectify the damage:

1. Ms Bengali sent written notice of damage by the tree, which was received by Mr Hadchiti in 2006, but later correspondence was not received. 2. Ms Bengali has paid $400 to have roots removed from under the paving. (i) Injury is not an issue in this case. (j) Other matters relevant in the circumstances of the case: (1) Branches of the tree have caused damage to the roof and eaves of Ms Bengali's unit, but those structures are body corporate property. The body corporate spent $770 in June 2008 to prune branches clear of the building. (2) The tree is growing rapidly and is now in contact with and overhanging the building. (3) Mr Hadchiti does not object to removal of the tree, and though he would prefer to pay only part of the cost, he could meet the full cost if given a period of five months in which to complete the removal. Conclusion 14 The tree is a quick growing weed species that can grow very large. I find that it is likely to cause further damage to Ms Bengali's property and the body corporate property. I find that its negative features outweigh any positives, and it should be removed at its owner's cost. Orders 15 The application is upheld in part and the Court makes the following Orders: 1. These orders apply to 37 Glassop Street, Yagoona; 2. The Rubber tree shall be removed, leaving at most a stump of about 100 mm above ground level, and the stump shall be treated to prevent regrowth from the stump and roots; 3. All branches shall be removed from Ms Bengali's property; 4. The work described in 2. and 3. above shall be completed at Mr Hadchiti's cost, within five months of the date of these orders, by a contractor with suitable insurances; 5. The work described in 2. and 3. above shall take place at reasonable times, and on reasonable notice, and Ms Bengali and her tenant shall grant access for the work to be done.

      Peter Thyer
      Acting Commissioner of the Court
      The formal orders may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/

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