Ambour v Micdomjon Pty Limited

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ambour v Micdomjon Pty Limited [2012] NSWLEC 1041
Hearing dates:	13 February 2012
Decision date:	24 February 2012
Jurisdiction:	Class 2
Before:	Fakes C
Decision:	Application upheld in part; compensation ordered
Catchwords:	TREES [NEIGHBOURS] compensation for damage to sewer; issue of notification; apportionment
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Stanberg v Adams [2010] NSWLEC 1129 Black v Johnson (No 2) [2007] NSWLEC 513
Category:	Principal judgment
Parties:	J & M Ambour (Applicants) Micdomjon Pty Limited (Respondent)
Representation:	Applicant: Mr A Hourigan (Barrister) Respondent: Mr S Boesen (Solicitor) Applicant: Walker Legal & Conveyancing Respondent: Shane Boesen Solicitors
File Number(s):	21024 of 2011

Judgment

1. COMMISSIONER: This is an application made under s 7 Part 2 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Taree against the owners of an adjoining property.

1. The applicants are seeking orders for compensation of a sum of $8,423.25 for the replacement of a length of sewer and concrete pathway they say was necessitated by incursion of roots from a tree or trees growing on the respondent's property. $6,553.25 is for plumbing work already completed. The remaining sum of $1,870 is for the replacement of the concrete path that was removed in order to carry out the plumbing work.

1. The applicants also seek orders for the respondent to pay the applicants' costs. In this regard, Commissioners do not have the jurisdiction to award such costs and a separate application must be made.

1. The respondent's property is a vacant block in a residential subdivision. Seven mature eucalypts on the respondent's property have been removed at a cost of $5,710. The respondent did this after the rectification works were completed.

1. The respondent's alternative orders are that the respondent will contribute 40% of the cost of the plumbing and concreting, the applicants are to reimburse the respondent 50% of the cost of removing the trees ($2,855), with the result being the respondent will pay the applicants $514.30.

1. The applicants reject the respondent's offer.

Actions of the applicant

1. The applicants purchased their block of land in about 1991/92 and built their dwelling in 1988. The PVC sewer system along part of their south-western boundary was installed at that time.

1. According to the statement of Mr Richard Walker, a plumber, some time in December 2010 or January 2011, he was engaged to clear the sewer line. Attempts to clear the line found the sewer blocked with tree roots. A camera confirmed the presence of roots. Excavation of the system found a large woody root growing under part of the sewer pipe leading from a toilet at the rear of the house. The pipe was cracked and roots were found in other parts of the sewer. In his opinion, Mr Walker found nothing to indicate that the plumbing was not installed in accordance with the appropriate standards, nor was it defective. In his view, the damage had been caused by…