Owners Strata Plan 10210 v Zhang

Land and Environment Court (NSW)|2008-12-09

CITATION : Owners Strata Plan 10210 v Zhang [2008] NSWLEC 1499

APPLICANT Owners Strata Plan 10210 PARTIES : RESPONDENT Xia Mei Zhang

KEY ISSUES: Trees (Neighbours) :- Hearing proceeds without definitive statement of which land some trees are wholly or principally situated upon, Orders made for work with both the applicant and respondent to share costs equally, Orders for concrete on the applicants land to be removed and replaced by lawn or garden to avoid future damage to concrete and to protect the trees, Compensation reduced as damage was little changed from time notice was given to respondent, and there were other causes of damage in addition to the tree, Bird droppings on washing is not property damage caused by the tree.

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

LEGAL REPRESENTATIVES: RESPONDENT Ms Zhang, litigant in person Mr R. Zhang, agent

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

20690 of 2008 Owners of Strata Plan 10210 v Ms Xia Mei Zhang

JUDGMENT The extemporaneous decision was given on 9 December 2008. This written judgment includes the findings given on-site, reasons and background information. 1 COMMISSIONERS: The owners of Strata Plan 10210, a block of six units (the Units) at 49 McKern Street Campsie, seek orders for removal of three Camphor Laurel trees. They claim the trees are situated on the adjoining property to the west, 62 Claremont Street Campsie (the property) owned by Ms Zhang.

2 The original application form filed on 14 July 2008 was made to rectify or prevent property damage and stated that the trees were a risk of injury to people. There was no claim for compensation due to property damage.

3 However, an affidavit of Con Lolis, owner of one of the Units, filed on 28 November 2008 includes a claim by the applicant for compensation of $2,084.70 for work done, and $30,010 for work that needs to be done. That claim was made within the timeframe set at the Directions hearing.

4 The owners of the Units were represented by Mr Denis Anderson, a solicitor, who was present at the hearing. The strata manager of the Units, Mr Shane Vella of V. J. Ray Pty Ltd also attended the hearing.

5 The applicant obtained three documents from Canterbury City Council under subpoena to the Court, and advised the Court that it seeks to rely on those documents. The documents were not lodged at the Court by the required date, and we are not satisfied that Ms Zhang was given a copy. However, the applicant produced the documents at the hearing and we have taken them into consideration to help our understanding of the dispute.

6 Ms Zhang has little command of the English language and was represented at the hearing by her son Richard, who interpreted for her.

7 The issues in this matter are: o The cause of damage to the sewer, concrete parking area and dividing fence; o The risk of injury by the trees; o The location and ownership of the trees; o Ownership of the concrete parking area; o The date of notice to Ms Zhang regarding damage, and the amount of damage since that date; o Other causes of damage to the concrete area; o The mess caused by the trees; o Orders for specific actions o Compensation; o Legal costs and costs of application and subpoenas.

8 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 ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person?

9 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?

10 Further, before determining an application, the Court is to consider the matters in s 12 of the Act. The trees 11 The three trees are mature Camphor Laurels growing in a line along the area of the boundary between the Units and Ms Zhang's property. The trees appear to be healthy and are probably more than 50 years old. There is a small amount of dead wood in the canopy of each tree. The trees overhang concrete carparking spaces in the backyard of the Units. The southern tree is the largest. The middle tree and the northern tree are smaller and a similar size to each other. Findings: Damage 12 The southern, largest tree has caused damage to the adjacent concrete of the car parking area of the Units, to the dividing fence, and the parties agree this tree has caused the blockages of the sewer line in the backyard of the Units. We also find it likely that this damage will continue in the near future. Therefore this tree meets the tests in s 10(2)(a) of the Act and we are able to make Orders regarding it.

13 The middle and northern trees have contributed to lifting of the adjacent strip of concrete in the backyard of the units, and to damage of the dividing fence. They are likely to cause further minor damage of that nature in the near future. They also have some dead wood in their canopies that may be a cause of damage to the applicant's property in the near future. Therefore these trees meet the tests in s 10(2)(a) of the Act and we are able to make Orders regarding them. Likelihood of injury 14 We observed and noted above that the middle and northern trees have some dead wood in their canopies. Some of that wood is 50 mm in diameter and likely to fall in the not too distant future. Given the regular use of the area under the trees, we find that the dead wood is a likely risk of injury to people. Therefore these two trees also meet the test in s10(2)(b) of the Act.

The location and ownership of the trees 15 The dividing fence between the Units and Ms Zhang's property has been pushed out of alignment by the trees. The location of the common boundary is not marked and no survey plan was provided. Ms Zhang states that she did not have a survey of the property when she purchased in 2000, and has not had it surveyed since. Mr Lolis also states that he did not have a survey of the Units when he purchased more recently, and has not obtained a survey since.

16 We observed the line of corner posts and rear fences on adjoining properties, and in the absence of a survey plan, estimated the location of the boundary. It appeared to us that the southern tree is on the boundary, the centre of its trunk possibly a little on the Units' side of the boundary. It also appeared that the trunk of the middle tree is about central on the boundary, and the trunk of the northern tree is mostly on Ms Zhang's side of the boundary. Mr Anderson agreed that this seemed a reasonable assessment of the location of the trees.

17 With regard to the definition of 'situation' of the tree, we considered s 4 (3) of the Act which states "For the purposes of this Act, a tree is situated on land if the tree is situated wholly or principally on the land." We also considered, as required under s 12 (a) of the Act, "the location of the tree concerned in relation to the boundary of the land on which the tree is situated and any premises," and under s 12 (j) of the Act the fact that the applicant came to the Court for resolution of the matters without providing proof of the boundary location. We were not inclined to adjourn the matter and direct that a survey be carried out as we were satisfied that the northern tree was on Ms Zhang's property, and it was possible a survey may not establish clear ownership of the southern and middle trees. Also, we were concerned about the delay involved, the additional costs to the parties and the Court, and the problems of communication with and between the parties. Additionally, as the hearing progressed we considered that only a fraction of the compensation claimed by the applicant would be appropriate, and that the matter should be resolved in an wholistic manner involving costs to both parties. On that basis we found it appropriate to proceed without a definitive statement of which land the southern and middle trees were wholly or principally situated upon. Ownership of the concrete parking spaces 18 We questioned the applicant with regard to ownership of the concrete parking spaces, as the Act only applies to damage to the applicant's property, in this case the owners corporation of Strata Plan 10210. Mr Vella explained that the car spaces were allocated to individual units and were included in the title of those units, but that title only extended to the space above the concrete and the concrete itself was the property of the owners corporation. On that basis we are satisfied that the claim for damage to the concrete parking spaces is allowable under the Act. Amount of damage since notice to Ms Zhang 19 We were shown damage, being lifting of the concrete in the car spaces and general concrete area, and were told how much that damage had changed since the problem was brought to Ms Zhang's notice in November 2006. We also observed photographs of that damage taken at about the time notice was given. We accept that there is some difference of opinion about the damage among those present at the hearing,. On viewing the photographs as well as the damage at the site and we find that most of the current damage existed already in 2006.

Cause of damage to the concrete area 20 Under s 12 (h) (i) of the Act, we are required to consider if anything other than the tree has contributed, or is contributing to any damage. We find that damage to the concrete area beyond the newer slabs that start at 1.3 m from the trees is likely to be caused by the age and inadequate construction of the concrete driveway, and a large tree on the property to the north of the Units. The units appear to be about 40 years old, and the concrete driveway and parking areas are liklely to be a similar age.

21 On that basis, we do not find that damage to 110 m² of concrete was caused by the three trees as claimed by the Units, nor should replacement of that concrete be paid for by Ms Zhang, nor ordered to be done. We find that the concrete strip about 8 m long by 1.3 m wide adjacent the common boundary is likely to have been damaged by the three trees, and the area about 2 m x 1.2 m on the southern side of the concrete sump cover is likely to have been damaged by the southern tree. Mess caused by the trees 22 The applicant stated concerns about the amount of leaves that the trees drop, and the work involved in cleaning up the leaves. We were not informed of any damage caused by the leaves. Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at para [171] said ".... leaves, fruits, seeds, twigs, bark or flowers of trees blown onto a neighbour's land might cause annoyance or discomfort to a neighbour, but unless they also cause damage to property on the neighbour's land they will not be actionable under s 7." As the leaves have not caused damage we will not make orders regarding the leaves.

23 The applicant also stated that bird droppings dirty their washing that is hung on lines in the backyard of the Units, and requested that the trees be removed so that birds are not attracted to the area. Preston CJ in Robson v Leischke [2008] NSWLEC 152; (2008) LGERA 280 at para [189] said ".... the specification of the tree as being a cause of damage to property or injury to any person excludes damage or injury directly caused by animals, such as mammals, birds, reptiles or insects, which may be attracted to a tree or use it for habitat. …." As the damage to washing is caused by birds not the trees, we will not make orders regarding the trees on that basis. Orders for specific actions 24 In accordance with s 9 (1) of the Act, the Court may make such orders as it thinks fit to remedy, restrain or prevent damage to property, or to prevent injury to any person, as a consequence of the tree(s) the subject of the application concerned.

25 In response to the lack of certainty regarding ownership of the southern and middle trees, and our finding that some works should be carried out, we have considered alternative ways of looking at the sharing of costs for a resolution of this matter. To this end, we find that certain works should be ordered and that costs should be shared equally by the two parties.

26 We will order that the southern tree is removed to prevent further damage to the sewer and concrete parking area.

27 We will order pruning to remove dead wood having a diameter greater than 25 mm from the middle and northern trees, over the property of the Units.

28 We will order the removal and replacement of the concrete area of about 2 m x 1.2 m on the southern side of the concrete sump cover near the southern tree.

29 We will order that the damaged strip of concrete about 1.3 m wide on the Unit's side of the common boundary be removed and replaced by garden or lawn to prevent further damage in that area and to protect the middle and northern trees and allow for their future growth. We have assessed the dimensions of the driveway and parking area, and find that conversion of the 1.3 m wide strip to garden will not cause any difficulty in use of the area for parking. We also consider that current planning practices would require a similar garden area beside the trees.

30 We will also order that a new dividing fence be constructed, and if the parties so agree, that a survey be done to identify the common boundary.

31 We will order that the works be completed by 30 April 2009 under the instruction of and full payment by the Units, and that Ms Zhang pay her half of the lowest quoted costs within 30 days of being provided with a copy of the receipt for full payment of the works. Compensation 32 The Units claim compensation for fees paid and fees which will be incurred, making a total of $32,094.70 as listed in the affidavit of Mr Lolis at para 16. We find that the majority of these costs are not required or would result from causes other than the trees.

33 We accept that the sewer has been cleared and the Units incurred costs of $1,558.70 in the cleaning and inspection of the sewer. On the basis of equal sharing of costs, we find that Ms Zhang should pay compensation for half the listed costs in relation to the sewer, an amount of $779.35 to the Units by 31 January 2009. Ms Zhang shall also pay half the lowest quoted cost of the ordered works, as stated above.

Legal costs and costs of application and subpoena 34 At the hearing, Mr Anderson applied for costs of the application, subpoena and legal costs. We advise however that it is not within the jurisdiction of Commissioners to award such costs. Claims for these costs must be made by a Notice of Motion which is heard and determined by a Judge. Other considerations under s 12 35 Under s 12 (d) of the Act, we note that although the tree is an introduced species, by the applicant's own evidence it provides attraction to at least some birds.

36 Under s 12 (e) of the Act, we note that the trees contribute to the scenic value of both Ms Zhang's and the Units' properties, and provide some privacy between the properties.

37 Under s 12 (f) of the Act, we note that the trees provide cooling summer shade and intrinsic value through oxygen production, carbon sequestration, and deflection and dispersal of strong winds.

38 Under s 12 (j) of the Act, we note that Canterbury City Council approved removal of the three trees in May 2007. However, at the hearing we became aware that the Tree Inspection Application Form had been filled out by Mr Lolis of the Units, stating that the three trees had caused sewer blockage and concrete damage. We also understand that Ms Zhang's son Richard had signed the application, possibly without discussing it with Ms Zhang. Also, as we find that the middle and northern trees are not the cause of the sewer blockage, and have caused little damage to the concrete, we give no weight to the Council approval with regard to those two trees. Conclusions 39 We find that the southern, largest tree should be removed due to the damage it has caused to the sewer line and the concrete, and that the damage is likely to continue with substantial ongoing cost if the tree remains.

40 We find that the middle and northern trees should remain as they have caused little damage, future damage and likelihood of injury may be avoided, and the trees provide significant amenity to both properties and the local area.

41 We find that the cost of ordered works should be shared equally by the parties.

Orders 42 The application is upheld in part, and orders will be made as follows: a. Ms Zhang shall pay compensation for half the listed costs in relation to the cleaning and inspection of the sewer. This ,is an amount of $779.35, payable to the Units by 31 January 2009; b. The southern, largest Camphor Laurel tree shall be removed; c. Dead wood having a diameter greater than 25 mm shall be pruned from the middle and northern Camphor Laurel trees, over the property of the Units. The pruning shall be carried out by an AQF Level 3 arborist, and the work shall be in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees ; d. The tree work in b. and c. above shall be carried out by a contractor with suitable insurances; e. The concrete area of about 2 m x 1.2 m on the southern side of the concrete sump cover near the southern tree shall be removed and replaced; f. The damaged strip of concrete about 1.3 m wide on the Unit's side of the common boundary shall be removed and replaced by garden or lawn; g. A new dividing fence shall be constructed; h. If both parties agree, a survey shall be done to identify the common boundary; i. The works in b, c, e, f, g, and h above shall be carried out under the instruction of the Units; j. For the works in b, c, e, f, g, and h above, the Units shall obtain three quotations for each work, and give copies of those to Ms Zhang by 28 February 2009; k. For the works in b, c, e, f, g, and h above, the Units may choose which quotation to proceed with, but Ms Zhang shall only be required to pay half the cost of the cheapest quotation; l. The works in b, c, e, f, g, and h above shall be completed by 30 April 2009; m. On completion and payment of each work, the Units shall give Ms Zhang a copy of the receipt for full payment of the completed work. Within 30 days of being given the copy of the receipt, Ms Zhang shall pay half the cheapest quotation for that work to the Units; n. The owners of both properties shall grant access over their property to carry out the tree removal and pruning work; o. The work shall take place at reasonable times, on reasonable notice, and Ms Zhang may supervise the activities on her property.

      Peter Thyer
      Acting Commissioner of the Court

      Dr Mark Taylor
      Commissioner of the Court

The formal orders are not included as part of this judgment but a copy 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/

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.

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Judgment (43 paragraphs)

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Cases Cited (1)