Land and Environment Court New South Wales

• Medium Neutral Citation: Sinclair v Rowney [2013] NSWLEC 1044
• Hearing dates: 28.February, 8 March 2013
• Decision date: 08 March 2013
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application upheld in part; one tree to be removed; periodic clearing of sewer pipes

• Catchwords: TREES [NEIGHBOURS] Consent orders; damage to property; blocking of sewer; potential injury; unstable tree
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29; Yang v Scerri [2007] NSWLEC 592
• Category: Principal judgment
• Parties: Mrs P Sinclair (Applicant); Mr T Rowney (Respondent)
• Representation: Applicant: Ms C Sinclair (Agent); Respondent: Mr M Driscoll (Solicitor); Respondent: BCP Lawyers and Consultants
• File Number(s): 21163 of 2012

Judgment

1 COMMISSIONER: The applicant in these proceedings seeks orders for the removal of 28 Leyland Cypress trees growing along the driveway of the adjoining property. She contends that the roots from these trees have blocked her sewer on a number of occasions and that they will continue to do so unless the trees are removed. The applicant is also concerned that should any of the trees fall down, they would cause damage to her dwelling and potentially injure anyone on her property.

2 The respondent does not wish to remove all of the trees but is prepared to follow the advice provided by a consulting arborist, Mr Craig Vindin, which is the removal of one unstable tree and the pruning of branches that overhang the applicant's dwelling.

3 The application is made under s 7, Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act).

4 During the course of the hearing, the parties reached an agreement and proposed consent orders. The Court cannot agree to the making of consent orders unless the Court's jurisdiction to make orders is engaged.

5 The key jurisdictional test in Part 2 is satisfaction of 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.

6 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...".

7 The trees in question are planted along the northern side of the respondent's driveway to the south of the applicant's dwelling. The trees are planted in a very narrow strip of soil between the driveway and the dividing fence between the parties' properties. The trees are one side of an avenue planting.

8 The applicant's sewer is located in the narrow passage between the dwelling and the dividing fence.

9 The applicant contends that the sewer became blocked in 2008 and was subsequently cleared by a plumber. In 2009, pipes in the bathroom became blocked. This necessitated further clearing and the partial replacement of the pipes connecting the bathroom to the sewer line outside. In 2011, the sewer required clearing again. The applicant's position is that the roots of the respondent's trees have caused the blockages and will continue to do so.

10 The applicant's house was built in 1953 and the applicant has resided there since 1988. Given the age of the house and the absence of any contradictory evidence, it is assumed that the sewer pipes are the original clay pipes. The small section that was replaced in 2009 was done with PVC fittings.

11 During the hearing, the applicant's agent (her daughter) produced roots that she said had been removed from the sewer pipe in 2009. With the expertise I bring to the Court, I found that the bark on some of the larger roots was consistent with roots of a conifer. This opinion was supported by Mr Peter Alland, Tree Management Officer, Rockdale Council, and Mr Vindin. The only conifers close to the applicant's sewer are the trees the subject of this application.

12 Therefore, in regards to the blocking of the sewer, I am satisfied that s 10(2) is met and that the Court has the jurisdiction to make an order under s 9 of the Act.

13 In regards to the applicant's concerns about the failure of the trees onto her property, and thus the potential for damage or injury, I agree with Mr Vindin's opinion that the easternmost tree has an unstable root system. The evidence of the configuration of the base of the tree, the lean of the tree, and the asymmetrical lifting of adjoining pavers, support this opinion. I agree with Mr Vindin that this tree alone should be removed. Therefore s 10(2) is satisfied in respect of this tree.

14 While the respondent has agreed to undertake some pruning of the overhanging branches, I am not satisfied that there is any evidence to warrant an order of the Court to intervene with the canopy of the trees on the basis of future damage. The Court has maintained the time frame of 12 months (as considered in the guidance decision in Yang v Scerri [2007] NSWLEC 592) as the reasonable consideration of 'the near future'. In my view, no evidence was aduced to demonstrate that the canopies of any of the trees are likley to cause damage to the applicant's dwelling in that time. However, the Court notes the parties agreement to take this up with Rockdale Council under the Tree Preservation Order.

15 As a consequence of the evidence before me, by I agree to make the following orders by consent:

(1) The appeal is upheld in part.

(2) The Respondent will by 30 April 2013 remove the Leyland Cyprus tree identified in the report of Arborcraft Arboriculture Pty Limited dated 20 February 2013 and filed in the proceedings as the "eastern most tree of the northern row (T1)" and will straighten the two (2) panels of the color bond fence immediately adjacent the removed tree so that the two (2) panels do not lean across the southern side boundary onto No. 9 May Street, Bardwell Park.

(3) The Respondent will on or before 30 April 2013 and thereafter once in every year whilst the Applicant or either or both of her daughters Chrystal Sinclair and are a registered proprietor of No.9 May Street, Bardwell Park on or before 30 April 2013 have a licensed plumber put down an electric eel or high pressure water jet with root cutting head attached, whatever is most suitable for the job and least damaging, to clean away any debris in the existing underground private sewer pipe located on No. 9 May Street, Bardwell Park and running along its southern side boundary.

(4) The Respondent's obligations under Order (3) will cease when a licensed plumber acting reasonably determines that the condition of the existing underground private sewer pipe located on No. 9 May Street, Bardwell Park and running along its southern side boundary has deteriorated or been damaged to the extent that the use of an electric eel or high pressure water jet with root cutting head attached to clear the existing underground private sewer pipe is ineffective and the appropriate remedy is to replace the existing underground sewer pipe.

(5) The Applicant agrees subject to the Respondent giving the Applicant seven (7) days notice to give reasonable access to her property at No. 9 May Street, Bardwell Park to enable the Respondent to comply with Orders 1 to Order 4.

The Court also notes the following agreement between the parties:

1. No order as to costs

2.The Respondent will on or before 22 March 2013 lodge an application with Rockdale City Council for approval to prune the northern row of Leland Cyprus trees identified in the report of Arborcraft Arboriculture Pty Limited dated 20 February 2013 to a height recommended by Arborcraft Arboriculture Pty Limited.

3.The Respondent will by the later of 14 days after Rockdale City Council grants its approval to the application referred to in Order 4 and 30 April 2013 prune the northern row of Leland Cyprus trees identified in the report of Arborcraft Arboriculture Pty Limited dated 20 February 2013 to a height recommended by Arborcraft Arboriculture Pty Limited.

4.The Respondent will on or before 30 April 2013 and thereafter once in every year whilst the Applicant or either or both of her daughters Chrystal Sinclair and [TBA] are a registered proprietor of No.9 May Street, Bardwell Park on or before 30 April trim the northern row of Leland Cyprus trees identified in the report of Arborcraft Arboriculture Pty Limited dated 20 February 2013 so that the branches of the northern row of Leland Cyprus trees do not overhang the southern side boundary of No. 9 May Street, Bardwell Park.

__________________

J Fakes

Commissioner of the Court

Decision last updated: 18 March 2013