Land and Environment Court New South Wales

• Medium Neutral Citation: Szauter v Colvin [2011] NSWLEC 1321
• Hearing dates: 8 November 2011
• Decision date: 08 November 2011
• Jurisdiction: Class 2
• Before: Fakes C

Decision

Application dismissed

• Catchwords: TREES [NEIGHBOURS]; future damage to property
• Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
• Cases Cited: Yang v Scerri [2007] NSWLEC 592; Robson v Leischke [2008] NSWLEC 152
• Category: Principal judgment
• Parties: C Szauter (Applicant); B & G Colvin (Respondents)
• Representation: Applicant: C Szauter (Litigant in person); Respondents: B & G Colvin (Litigants in person)
• File Number(s): 20695 of 2011

Judgment

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1 COMMISSIONER: This is an application pursuant to s7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owner of a property in Redhead against the owners of trees growing on an adjoining property.

2 The applicant is seeking the removal of the trees on the basis that the roots from the trees may, in the future, cause damage to an adjoining garage, sewer pipes and retaining wall on the applicant's land.

3 The application refers to three trees however it was confirmed on the site that there are only two trees - a Harpephyllum caffrum (Kaffir Plum) and a Citharexylum spinosum (Fiddlewood). The trees are growing near the western boundary of the respondents' property at the northern end of that boundary. The respondents purchased their property in 1981 and the trees were present at that time.

4 The applicant has owned his property for three years and wants to avoid future damage he says could be caused by the trees, and therefore future costs.

5 The garage is located at the rear of the applicant's property. The trees are within about 1-1.5 m from the nearest wall. The garage was present when the respondents bought their property and is therefore at least 30 years old. It is constructed of cement blocks on a concrete slab. The land on which the slab sits has been levelled to create a pad for the slab and is on average about 500 mm above ground level on the respondents' property.

6 I inspected the wall and edge of slab nearest the trees; the only visible damage was a crack along the mortar joints of some blocks near the north-eastern corner and some minor displacement of some blocks. The slab appeared in good order.

7 The respondents, in their written submissions, state that the Newcastle earthquake of 1989 caused their house at the time to lift off its brick piers and settle in a different position. The applicant could not say whether the crack in the corner of the garage wall was due to the trees or the earthquake.

8 With respect to the 'retaining wall', as stated above, the applicant's land is higher than the respondents' land. A new metal fence was recently installed between the two properties. In some sections the contractor placed a section of fibreboard beneath the fence panels to retain the applicant's soil and prevent it from falling onto the respondents' land.

9 In the section of fence near the trees, the old metal fence has been left in place on the respondents' side and the new one constructed behind it. Removal of a panel of the old fence revealed unretained earth. There is in fact no 'retaining wall' on the applicant's land and that element of the application is no longer pressed.

10 In regards to the applicant's sewer, it runs between the garage and the fence to the Hunter Water Corporation main in the lane behind the parties' properties. The applicant stated that there has been no damage or blockage to date in that part of the sewer however he doesn't want problems to arise in the future.

11 The applicant's concerns are based on a brochure from the Hunter Water Corporation entitled "Do you have a monster in your backyard?" which shows a cartoon of tree roots depicted as a 'monster' gripping and breaking a sewer pipe. According to schedule B of that brochure, Fiddlewood and 'Plums' should be planted more than 10m away from a sewer. Advice from Wallsend Nurseries, printed on a 'cash sale' slip and 'sold' by someone called Mark, states that the recommended distance between sewer lines and a Kaffir Plum should be 20m or greater.

12 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. In this matter, injury is not an issue. Given that the applicant is concerned about future damage, the guidance decision in Yang v Scerri [2007] NSWLEC 592 is relevant. The Court in this decision determined that the 'near future' is a period of 12 months from the date of the hearing; a timeframe I consider appropriate in the circumstances.

Findings

13 In regards to the garage, while there is a crack in the mortar between some of the corner block-work close to the trees, by his own admission, the applicant was unable to say if the damage was due to the trees or to the 1989 earthquake. There was no evidence of any roots and the slab below that corner of the garage appeared undamaged and in good order.

14 Therefore with respect to the garage, there is no evidence to link the damage to the garage to the trees or any evidence to indicate that the trees are likely to cause damage to the garage in the near future. It would appear the trees and the garage have co-existed for at least 30 years with no problems.

15 According to the respondents' submission, the sewer was probably installed in the 1960s. The applicant has not had any problems with blockages in that section and has relied on the unsubstantiated and, in the case of the Hunter Water brochure, alarmist, opinion of the nursery and Hunter Water as to how far certain trees should be planted from sewer pipes.

16 The Court cannot make orders 'just in case' something might happen. The mere proximity of trees to structures should not lead to an assumption of inevitability that the tree will damage the structure. In Robson v Leischke [2008] NSWLEC 152 at [200], Preston CJ considers that the near future assumes the impending damage is imminent or there is a real and appreciable probability of irreparable damage. In the matter before me, there is simply no evidence that damage to the sewer is imminent and that the fears of the applicant will be realised.

17 Therefore as s 10(2) is not satisfied for either the garage or the sewer, the Court has no jurisdiction to order any interference with the trees. As a result, the Orders of the Court are:

(1) The application to remove the trees is dismissed.

_____________________

J Fakes

Commissioner of the Court

Decision last updated: 09 November 2011