1 COMMISSIONER: The applicant is seeking orders for the removal of nine Cocos palms growing on the adjoining property in Marsfield, close to the dividing fence and repair of the fence.
The orders are sought on the basis that several of the palms are leaning on the fence and have damaged it. The fence is displaced towards the applicant's property. Apart from the damaged fence, the applicant contends that the roots of the trees have cracked a retaining wall and concrete paving. The applicant is also concerned that falling fronds may damage cars parked in the driveway.
Apart from damage, the applicant is also worried that fronds that are regularly shed by the palms may cause injury to anyone using the pathway over which the palms hang.
The applicant has appealed under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act). In these appeals, there are a number of jurisdictional tests that must be satisfied before the Court's powers to make orders, under s 9 of the Act, are engaged. The key tests are found in s 10(2).
Under s 10(2) of the Act, 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. This must be applied to each of the trees that are the subject of the application.
It is relevant to record that the respondent did not appear at any directions hearing. The evidence on file seems to suggest that the respondent was overseas and that his parents were residing on the property on which the trees are growing. The respondent's parents speak little English.
The applicant filed a Notice of Motion seeking substituted service. On 29 September 2014, the Acting Registrar of the Court made orders allowing the personal delivery of the application to any person over the age of 16 residing at the respondent's address, along with a letter requesting the application and a copy of the orders be forwarded to the respondent. In addition, the orders and the letter requesting that the application be forwarded to the respondent were to be translated into simplified Chinese and a copy of the translation was also to be served with the application.
An Affidavit of Service - Pushpa Sriram - 25.10.2014 was filed with the Court on 29 October 2014. The affidavit includes the Chinese translation of the orders made by the Acting Registrar. The sworn affidavit states at [4] and [5]:
4. I served the documents by personally delivering the above mentioned documentation to Mr Yuan Lai Hong (his father) residing at [respondent's address].
5. At the time of service Mr Yuan Lai Hong stated he would give the above-mentioned documentation to his son next week.
The hearing commenced on site. The applicant's agent, Ms Sriram, an owner of one of the units, and the secretary of the Owners Corporation, Mr Lung, and his wife, were waiting ready to start however, the respondent was not present. After knocking on the respondent's door several times, and with the subsequent assistance of some students residing in the respondent's premises who could translate what was happening, the respondent's father Mr Hong snr came to the door. Mr and Mrs Lung, who speak Chinese, also assisted.
In regards to procedural fairness, I am satisfied that the respondent has been properly served and has had ample notice of the proceedings and to seek representation. Given the long process to date, I determined that the matter should continue in the respondent's absence and I permitted Mr Hong snr to act as his son's agent. The respondent's father informed me, when asked through Mr Lung, that his son was not overseas but in North Sydney. I am also informed that the respondent has a good grasp of English
I am also satisfied to the extent that I can be that Mr and Mrs Lung assisted the Court in good faith, and honestly translated my questions to Mr Hong snr and his questions to me, and I thank them for their assistance.
The trees were inspected from the respondent's property. There are ten Cocos Palms (Syagrus romanzoffiana) growing in the rear garden along the north-eastern boundary of the respondent's property. Eight of these trees are part of this application. Using the diagram in the application form as a guide, I have included a diagram as an attachment to this judgment illustrating the trees in question. The other two Cocos Palms are relatively small and are growing between trees 3 and 4. The other tree about which the application is made is a Washingtonia sp. of palm growing in the northern corner of the respondent's property near the street frontage.
I am satisfied that the trees are wholly located on the respondent's property. I am also satisfied on the evidence that the applicant has made repeated efforts to seek some action from the respondent.
As stated above, the applicant contends that a number of the Cocos Palms have caused damage to the dividing fence and could continue to do so. They are also concerned that falling fronds from all of the palms could cause injury.
In regards to the damage to the fence, I am satisfied to the extent required by s 10(2) that trees 1, 3 and 8 are in direct contact with the fence and have caused its displacement to the point where a number of panels of the fence need replacing or straightening. I am also satisfied that trees 5 and 6 are close enough to the fence that they are likely to cause future damage to the fence and or that the replacement of the fence will necessitate removal of part of their root system. Similarly I am satisfied that trees 1, 2 and 3 are on such a lean and appear to have some separation of the roots near their base that they pose of risk of failure and could cause injury to anyone on the property at the rear of the respondent's property.
Given the proximity of the trees 1, 3, 5, 6 and 8 to the fence and the hazardous state of trees 1, 2 and 3 I am satisfied that these trees should be removed. Trees 4 and 7 are further away from the fence and should not cause any problems to it in the foreseeable future.
In regards to the falling fronds, the removal of five palms, including trees 5, 6 and 8 which are closest to the applicant's property, should result in a safer situation. While Ms Sriram reported a frond from the Washingtonia just missing a parked car, in my view, one undocumented event is insufficient to satisfy s 10(2). However if I am wrong in this, the evidence is insufficient to warrant an order for the removal of the Washingtonia or any intervention with it. As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, if the circumstances change and new evidence is produced, a future application can be made.
In regards to the damage to the fence, starting from the eastern corner of the respondent's property, the first three panels are displaced and damaged to the point they should be replaced. The next two panels will need to be straightened. Based on the good and upright condition of fence panels away from the palms, I am satisfied that the damage and displacement would not have occurred if not for the respondent's trees. Therefore orders will be made for the respondent to bear the cost of replacement and rectification of the panels shown in the accompanying diagram.
Apart from the fence, the applicant contends that palm roots have cracked the concrete slab between the south-western façade of Unit 1 and the common boundary. I observed two cracks in a large section of concrete however no evidence was adduced to indicate that respondent's palms have caused the cracks.
Similarly, I was shown a displaced block of a retaining wall. The applicant alleges this has been caused by the roots of the palms. In my view this is very unlikely given the fact that there is a well-established Variegated Pittosporum growing on the applicant's property within about 500mm of it between the block and the nearest palm.
Therefore s 10(2) is not met for these two elements of the claim.
In response to a question asked by the applicant's representatives in regards to what happens should the respondent fail to carry out the Court's orders, I refer the parties to s 15 of the Trees Act. The Land and Environment Court's website has some additional information.
In conclusion the orders of the Court are:
1. The application is upheld in part.
2. Within 30 days of the date of this judgment, the respondent is to engage and pay for an AQF level 3 arborist with appropriate and current insurance cover, to remove Cocos Palms numbered 1, 2, 3, 5, 6, and 8 on the diagram attached to this judgment. The trees are to be removed to ground level.
3. The work is to be carried out in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
4. The applicant is to provide all reasonable access for the purpose of quoting and or the safe and efficient removal of the trees on reasonable notice.
5. The respondent is to engage and pay for a licenced fencing contractor to replace the fence panels shown on the diagram attached to this judgment and to straighten/ rectify the other panels shown on the diagram.
6. The fencing work must be done to a professional standard and carried out after the removal of the palms within 60 days of the date of these orders.
7. The applicant is to provide reasonable access for the purpose of quoting and or the carrying out of the fencing work on reasonable notice.
Judy Fakes
Commissioner of the Court
[3]
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: 11 February 2015