Resumed Court hearing on 9 May 2012
19At the resumed hearing on 9 May 2012 the Court was informed that the respondents had removed the Oak tree in compliance with the Court's Orders issued onsite on 23 March 2012.
20According to their evidence, the respondents had engaged a qualified arborist to remove the Oak tree and grind the Oak's stump and root buttress to the ground level on their property with a 100 mm clearance between the stump and the boundary fence. Four (4) photographs of the ground tree stump taken by Mr Love on 16 April 2012 were tendered (exhibit 1). The respondents told the Court that the work had been carried out by an arborist in accordance with AS4373-2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. It was also explained that because of the topography of the land the arborist/contractor's stump grinder was only able to grind the Oak's stump and root buttress to provide a 100 mm clearance between the stump and the fence to a level less than the top 200 mm of the stone retaining wall on the applicants' land.
21This was unacceptable to the applicants. They want the removal of the entire Oak stump and root buttress protruding through the base of the fence above the retaining wall on their land. The applicants contend it is necessary to remove the entire Oak stump and root buttress on their land to allow the reinstatement of their retaining wall.
22After a consideration of the photographs and the evidence and the submissions of the parties, the Court determined that it was satisfied that the respondents had complied with the Orders issued on 23 March 2012 having regard to the topography of the land, particularly the difference in levels between the properties. It does not agree with the applicants' interpretation of the Court's Orders for the removal and grinding of the Oak tree stump and root buttress. The Court is of the opinion that it is open to the applicants to remove any remaining Oak root or root buttress on his land in order to reinstate the seven stones of their retaining wall.
23As far as the Court is concerned, the removal of the Oak tree resolves the applicants' concern about displacement of the stones in its retaining wall. As the Court's transcript in Knox v Love (No 2) on 16 September 2011 records, the payment of $5,000 by the respondents to the applicants was intended to cover all damage caused by the Oak tree to the fence, retaining wall, sewer and paving. Any works to reinstate the retaining wall, including cutting of any roots on the applicant's land, is a matter for the applicants.
24After resolution of proposed Order 1, the Court turned to proposed Order 2. However, Mr Knox told the Court that the sewer had been reinstated and that he did not press proposed Order (2) of the application dated 24 November 2011. Accordingly, with his consent, proposed Order 2 was dismissed.
25With respect to the proposed Order 3 to carry out works to support the stormwater tank on the respondents' land and remove "the soil build up within no 40 Greendale" supported by the fence and sandstone retaining wall along the entire common boundary we do not accept that we have jurisdiction to deal with these matters in the circumstances of this case.
26Ultimately, Mr Knox conceded that he agreed that the Court did not have jurisdiction to deal with the water tank at the rear of the respondents' land. So the Order in respect of the water tank and that part of the application was dismissed. However, he did press his Order for the removal of the soil built up along the common boundary fence, which he said is moving the fence and he wants reinstatement of the entire fence and retaining wall along the common boundary. Relying on s13 A of the Dividing Fences Act 1991 he said that the Court had power to order the works in proposed Order 3.
27The section states:
Jurisdiction of Land and Environment Court
13A Jurisdiction of Land and Environment Court
(1) The Land and Environment Court has jurisdiction to hear and determine matters arising under this Act in proceedings to which this section applies.
(2) This section only applies if:
(a) application for the exercise of the jurisdiction is made in relation to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced but not determined, and
(b) the tree that is the subject of those proceedings:
(i) has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or
(ii) is part of a dividing fence and 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.
(3) The Land and Environment Court may, of its own motion or on an application by a party to an application under this Act that is before the Local Court or a local land board, transfer the application that is pending in the Local Court or in a local land board to the Land and Environment Court if:
(a) the application is relevant to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced in the Land and Environment Court but have not been determined, and
(b) the tree that is the subject of those proceedings:
(i) has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or
(ii) is part of a dividing fence and 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, and
(c) the Land and Environment Court is satisfied that there is sufficient reason for the application under this Act to be heard and determined by the Land and Environment Court.
(4) An application that is transferred to the Land and Environment Court under subsection (3) is to be continued in the Land and Environment Court and determined by the Land and Environment Court as part of the related proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006.
(5) For the purposes of any proceedings to which this section applies, a reference to the Local Court in this Act (except sections 13 (2), (3) and (4) and 19 (2) and (3)) is taken to include a reference to the Land and Environment Court.
28Section 13A provides the Court with the jurisdiction to make Orders for the entirety of dividing fences that may be damaged by trees subject to the Trees Act and which meet the jurisdictional test in s10 (2) in the Act. This amendment to extend the legislation to the Court was introduced in the Dividing Fences and Other Legislation Amendment Bill 2008 and the amendment came into force in July 2010.
29There is no evidence in this application that the Oak tree has caused damage to the full length of the dividing fence or the retaining wall (other than the area which has been dealt with in Knox v Love (No 2). The only area of the retaining wall displaced by the tree is that area within the immediate area of the Oak tree, which has now been removed. It concerns seven (7) sandstones and the Court has already made Orders to allow the reinstatement of this part of the retaining wall and compensation to the applicants to cover the cost of reinstatement. The respondents' land sits higher than the applicants' land and the build up of soil along the fence appears to be a consequence of the different levels between the properties. Damage to the fence caused by the tree is minor and would not necessarily require the Court to make orders for the repair of that section. The applicants' submission is that the fence has been damaged mostly by build-up of soil and an improperly supported water tank.
30The Trees (Disputes Between Neighbours) Act 2006 concerns damage caused by a tree (s 10(2)) and where the tree has caused damage to a fence s10 (2) provides that the Court may make Orders under the Trees Act and s13A of the Dividing Fences Act 1991. The making of Orders under s9 of the Trees Act requires a consideration of relevant matters in s12. Most relevant is 12(h)(i) - anything other than the tree that is contributing or has contributed to the damage. After a consideration of s 13A of the Dividing Fences Act 1991 and the facts of this case we are not satisfied that there is sufficient reason for these matters to be dealt with under the Trees Act to be heard and determined by the Land and Environment Court. The fence is an old timber-paling fence in a reasonable state of repair. Any Orders in respect of the build up of soil against the fence or retaining wall are based on the evidence before us outside the Court's jurisdiction on the facts of this case. In this matter the age of the fence and the timber palings would appear to contribute to its current condition. The Trees Act does not cover the soil built against the fence having moved down the slope in the circumstances of this case. We therefore decline to make Order 3.
31At the conclusion of the hearing, the applicants told the Court and the respondents that they did not seek any further monetary compensation from their neighbours in respect of damage caused by the tree to their property. Furthermore, they indicated that they believed they had opportunity to pursue Orders in respect of the water tank and the soil build up against the fence in the Local Court. Clearly, that is a matter for the applicants to pursue and not a matter which the Court forms any view about. Having said that however, the Court notes that it has spent a great deal of time ventilating the issues between the parties in this appeal and earlier proceedings. It has visited the site twice and heard from the parties over four hearing days. The Court is satisfied that the removal of the Oak tree, the grinding of its stump and root buttress, and the payment of compensation (in earlier proceedings) in the amount of $5,000 to the applicants by way of compensation for damage to their property resolves all issues between the parties. For the reasons stated above the Court 's Orders are:
- The appeal is upheld in part Order 1 is made.
(1) The respondents are to engage and pay for a qualified arborist (minimum AQF level 3) with all appropriate insurances to remove the Oak tree to ground level within 30 days of the date of these Orders. The works are to be carried out in accordance with AS 4373-2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(2) The respondents are to engage and pay for the arborist or another suitable contractor to cut or grind that part of the Oak's stump and root buttress against the boundary to provide 100mm clearance between the stump and the boundary fence including the top 200mm of the stone retaining wall, taking all care to avoid damage to the fence and wall. These works are to be completed within 30 days of the date of these Orders.
(3) The respondents are to provide the applicant with at least two days' notice of the works in (1) and (2) and the applicant is to provide all reasonable access during reasonable hours for the works in (1) and (2) to be completed.
(4) The applicant is to cut and remove all roots on his property necessary to allow sewer repair works to be carried out. Sewer repair works are to be completed within 60 days of the date of these Orders.
2 Proposed Orders 2 and 3 are dismissed.
Susan Dixon
Commissioner of the Court
David Galwey
Acting Commissioner of the Court
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Decision last updated: 08 June 2012