Price v Dougherty

Vehicle damage 13The $8000 claim appears to be costs related to the regular removal of 'sap' from vehicles parked in the applicant's driveway and under the respondents' tree. Despite the directions giving the parties time to produce further evidence to substantiate their positions, Mr Price did not avail himself of this opportunity. The principal reason for these directions is to enable the parties, should they wish, to provide extra material relevant to their positions prior to the hearing so that it can be considered by all involved in a timely and procedurally fair manner. 14In this regard, the applicant could not substantiate the claim and s 10(2) could not be satisfied.

The retaining wall 15This is a three-course, low, single brick wall extending about 8m from the front of the applicant's property along the eastern side of the driveway. The tree in contention is located near the western side of the driveway. 16The retaining wall leans to the west, that is, towards the tree and there is some cracking. The wall retains a garden bed in which are growing several small trees; there is a pond close to part of the wall. The wall pre-existed Mr Price's purchase of his property and is therefore more than 20 years old. There is no evidence of its construction. 17Mr Price contends that the damage has been caused by the respondents' tree and has a quote of $1660 (+GST) for its repair. The respondents do not accept that the tree has caused the damage given the age of the wall and its position in the garden.

Findings - retaining wall 18On the evidence before me, I cannot be satisfied to the level required by s 10(2) that the tree has caused the damage to the wall. The applicant was unable to demonstrate the nexus between the tree and the displacement of and damage to the wall. 19Even if the tree had been shown to be a cause of the damage, thus engaging the Court's jurisdiction, as a matter of discretion after consideration of s 12(h)(i), no orders would be made for any compensation. Given the nature of the lean and the adjacent garden bed it appears that the displacement is most likely a function of the age and nature of the wall and gradual pressure from the trees and soil within the garden bed. Therefore, this element of the application is dismissed.

The dividing fence 20Mr Price has a quote of $3610 (+GST) for the removal and replacement of 20m of the metal dividing fence that separates the parties' properties. The section of fence runs from the street frontage to Mr Price's garage. 21The fence comprises sections of vertically aligned corrugated iron with a small degree of overlap. The fence also pre-dates Mr Price's ownership and is in poor condition. The section closest to the base of the tree is displaced in a vertical direction and the rail is displaced and dislodged. 22Mr Price has installed a couple of steel posts on his property to help secure the fence. He has also erected a secondary timber fence on his property to screen part of the metal fence, the whole of which he considers an eyesore. 23The applicant's position remains that the respondents should pay for the full cost of replacing the 20 m section of dividing fence. The respondents' position is that they would consider repair or replacement of between 1-3 m of the fence that immediately adjoins the tree.

Findings - dividing fence 24Neither party tendered any independent arboricultural evidence. Given the proximity of the displaced fence to the base of the tree, and relying on the arboricultural expertise I bring to the Court, I am satisfied that the tree has contributed to the condition of the fence. As the Court's jurisdiction to make orders under s 9 is engaged, I must consider any relevant matters in s 12 of the Act. 25As with the retaining wall, the relevant clause is s 12(h)(i) - things other than the tree that may have contributed to the damage. In this case the age and material nature of the fence is relevant. Overall the fence panels, rails and posts are in poor condition. 26The applicant has not requested the Court's consideration of an order under s 13A of the Dividing Fences Act 1991 concerning any portion of the fence that has not been damaged by the tree. This is presumably because the applicant's position is that the tree has damaged the entirety of the 20m section. 27As stated above, my view is that only the section immediately adjoining the base of the tree has been damaged by the tree and, as a consequence, orders will be made for the respondents to repair this section only.

The driveway 28The driveway comprises concrete wheel strips made up of individual concrete blocks with brick paving between and beside the strips. There is a distinct mound in the western section closest to the base of the tree. The eastern wheel strip appears to be at the original level although some of the concrete slabs are cracked. Mr Price accepts that while he caused the cracking, he contends it arose because he levelled the area and removed roots from beneath those slabs. 29The applicant has a quote of $9180 (+GST) to remove the existing driveway and replace it with a new concrete driveway. The area quoted is 51m2 - the area between the street frontage and the applicant's garage. 30The respondents dispute the claim and will only consider a contribution to about 6m2 - the area closest to the tree. 31During the hearing the applicant revised his position and now seeks replacement of an area of about 28m2 - from the street frontage to the pathway leading to the house.

Findings - driveway 32With the expertise I bring to the Court, I am satisfied that the mounding is most likely due to displacement caused by the growth of the primary roots of the respondents' tree. As s 10(2) is satisfied, the Court's jurisdiction to make orders is engaged. 33The applicant produced no evidence to support his claim for the removal and replacement of 28m2. However, orders for rectification will be limited to the lifting and relaying of 4 pieces/ sections of the western concrete strips adjacent to the tree. These are sections 3,4,5, and 6 numbered from the street frontage and shown on the attached photograph. The adjoining bricks are to be lifted and reset. This work is to be paid for by the respondents.

Orders 34After considering the evidence before me, the Orders of the Court are: (1)The application is upheld in part. (2)Within 60 days of the date of these orders, the remainder of the tree is to be removed to ground level at the respondents' expense. (3)Within 90 days of the date of these orders, the respondents are to rectify the section of fence between the existing metal posts on the applicant's property (see Photograph A in Annexure A) so that the top of the fence is level with the adjoining sections of fence. This work is to include the relocation or repair of the top rail. (4)Within 90 days of the date of these orders, the respondents are to engage and pay for a contractor to lift and reset the section of driveway described in paragraph [33] of this judgment and shown in Photograph B in Annexure A. The contractor is to remove any roots to a depth sufficient to enable the compaction of the soil and the relaying of the slabs and bricks to a level consistent with the concrete strip on the eastern side of the driveway. (5)The applicant is to provide all reasonable access for the purpose of quoting and the carrying out of the work on two working days notice. J Fakes Commissioner of the Court Annexure A 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: 29 May 2013