Land and Environment Court New South Wales

• Medium Neutral Citation: Cavallaro v Gallen & anor [2014] NSWLEC 1026
• Hearing dates: 20 February 2014
• Decision date: 20 February 2014
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS] damage to property; inconclusive evidence
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Hinde v Anderson & anor [2009] NSWLEC 1148; Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
• Category: Principal judgment
• Parties: Mrs E Cavallaro (Applicant); Mr D and Mrs T Gallen (Respondents)
• Representation: Applicant: Mrs E Cavallaro (Litigant in person); Respondents: Mr D and Mrs T Gallen (Litigants in person)
• File Number(s): 20907 of 2013

Judgment

1 COMMISSIONER: The applicant has applied under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) for orders seeking the removal of a Jacaranda growing in the front garden of the respondents' property in South Penrith.

2 The orders are sought on the basis that the roots of the Jacaranda have blocked the applicant's sewer.

3 The respondents oppose the removal of the tree and question the basis of the application.

4 In applications under Part 2 of the Act, there are a number of jurisdictional tests that must be satisfied before the Court's power to make orders is engaged.

5 The key test is satisfaction of any element of s 10(2). This section 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 alleged damage is the blocking of the sewer near the junction of the vertical inspection shaft located in the applicant's concrete driveway at the front of her property.

8 According to the parties, about three years ago the applicant's sewer was severely blocked by products (not recommended for disposal in the sewer system) disposed of by someone minding the applicant's dwelling when she was overseas. The blockage was cleared and the cause identified. The blockage apparently occurred near the junction with the shaft but no roots were reportedly found.

9 In July 2013, a plumber was engaged to clear another blockage of the applicant's sewer. According to the applicant's oral evidence given during the on-site hearing, the plumber put a camera down the sewer and identified a blockage and tree roots.

10 According to the invoice dated 28/7/13 the job is described as "unblocking a drain from the shaft causing from a tree roots coming from a creck pipe about 40mm from the shaft elbo this Job has no warenty' [sic].

11 The invoice makes no mention of the inspection via a camera and there is no photographic evidence of any roots or of the crack. The plumber used high pressure water jetting to clear the blockage so no roots were recovered.

12 The respondents were not informed of the blockage but were shown the plumber's invoice after the work was completed.

13 The nearest tree is the respondents' Jacaranda, some 4-5m from the inspection shaft. The only other nearby trees are mature Callistemons planted in the grass verge outside each of the parties' properties. There is a small shrub growing in the applicant's property quite close to the shaft; there are other shrubs closer to the house.

14 According to the respondents, in 2005 they raised the level of their front lawn, including around the tree, by about 500mm and retained the area with a new retaining wall. The wall forms part of the common boundary between the parties' properties. The first respondent stated that he followed the construction details and excavated for a footing of compacted road-base in excess of 300mm deep and about 600mm wide. All roots in the vicinity were severed.

Findings

15 After viewing the site and considering the limited evidence, I am not satisfied to the extent required by s 10(2) that the respondents' Jacaranda has caused the damage to the applicant's property, and therefore the Court's jurisdiction to make orders is not engaged.

16 However, if I am wrong in this and the roots are a cause of the damage thus engaging the Court's jurisdiction, I do not consider removal of the tree is warranted in the circumstances.

17 While the tree makes a positive contribution to the respondents' property and to the streetscape, the main basis of my decision rests on the quality and sufficiency of the evidence.

18 The plumber's invoice indicates a crack in the pipe near the junction with the shaft. There is no evidence that the roots have caused the crack. The respondents consider that the previous serious blockage of the system and or the subsequent clearing of it may have caused the crack. The age of the system may also be an issue: the applicant purchased her property in 1981 when the dwelling was about five years old.

19 While a crack may allow access to roots, the absence of any actual roots or of any photographic evidence of roots makes drawing a conclusion in favour of the applicant very difficult. While there is certainly a hypothetical possibility that the Jacaranda is the source of the roots, being the closest large plant, the level of certainty required to make orders of the Court is not established.

20 If the crack is not repaired, the chance of further root incursion remains.

21 As discussed in Hinde v Anderson & anor [2009] NSWLEC 1148, a fresh application can be made if the circumstances have changed since the Court determined the earlier application and there is fresh evidence.

22 Therefore on the basis of the foregoing, the Orders of the Court are:

(1) The application is dismissed.

_______________________

Judy Fakes

Commissioner of the Court

Decision last updated: 20 February 2014