Granger v Owners Corporation SP 18494

Judgment 1COMMISSIONER: The applicant seeks orders for the removal of tree roots that he says have caused damage to paving and which have led to tripping hazards that could result in injury to his family. He is also concerned about unseen damage that the roots may have caused to his property and the risk of future damage. 2Orders are also sought for the rectification of damaged property, an investigation into possible unseen damage, the installation of a root barrier to prevent future plantings from causing damage, and compensation for the costs associated with bring the application to court. 3The application has been made under s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 Trees (Disputes Between Neighbours) Act 2006 (the Act). 4The key jurisdictional test in applications made under Part 2 is s 10(2). This states that the Court must not make an order unless it is satisfied that the tree concerned has caused, is causing, or is likely in the near future to cause, damage to the applicant's property or is likely to cause injury to any person. 5The tree is question is a mature Radamacheria sinica (China Doll Tree) growing close to the dividing fence between the parties' properties. Anecdotal evidence suggests the tree was planted about 30 years ago. It is located towards the rear of the respondent's property in Corrimal. The tree is healthy and leans away from the fence towards the car parking/ utility area at the rear of the respondent's property. There is a small Leptospermum sp (Teatree) to the northeast of the China Doll tree. 6The applicant contends that when he purchased his property six years ago, the paving at the rear of his dwelling was level. In his view, the roots of the China Doll tree have caused displacement of the pavers to an extent that there are now many tripping points. He also contends that roots have displaced a section of concrete slab against the house. 7The site inspection confirmed the images in the application form. The paving was somewhat undulating over its entire length but the greatest level of displacement that could constitute a tripping hazard was immediately behind the tree. The lifted section of concrete is also immediately behind the tree. 8While on its face, the tree appears to be the cause of the uplift and displacement, the level of satisfaction required by s 10(2) is discussed in Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29. At [62] Craig J states in part "something more than a theoretical possibility is required in order to engage the power under [the Trees] Act...". 9The applicant was given leave to remove some of the pavers and excavate the soil in the area most likely to be influenced by roots from the tree. At about 250 mm depth, a large woody root was found. This extended to the area beneath the displaced concrete slab. 10On this evidence I am satisfied that this root from the tree has caused the displacement of the paving and the slab and, as s 10(2) is satisfied, the Court's jurisdiction is engaged and I can consider what, if any, orders should be made under s 9 of the Act. This requires consideration of the matters under s 12. 11The following matters are considered relevant in the circumstances: