Baker v Grabovac - [2010] NSWLEC 1289

Land and Environment Court

of New South Wales

CITATION: Baker v Grabovac [2010] NSWLEC 1289

PARTIES:
APPLICANT
G and E Baker
RESPONDENT
D Grabovac

FILE NUMBER(S): 20666 of 2010

CORAM: Fakes C - Hewett AC

KEY ISSUES: TREES (NEIGHBOURS) :- compensation; damage to sewer

LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006

DATES OF HEARING: 21/10/10

DATE OF JUDGMENT:
21 October 2010

EX TEMPORE JUDGMENT DATE: 21 October 2010

LEGAL REPRESENTATIVES:
APPLICANTS
G and E Baker [litigants in person]
RESPONDENT
D Grabovac [litigant in person]

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C
Hewett AC

21 October 2010

20666 of 2010 Baker v Grabovac

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

1 COMMISSIONERS

: This is an application pursuant to Part 2 s 7 of the Trees (Disputes Between Neighbours) Act 2006 (the Act) made by the owners of a property in Casula against the owner of tree on an adjoining property.

2 The applicants are seeking compensation of a total of $12,225. This sum includes plumbing costs of $11,470 associated with the removal and replacement of blocked sewer pipes and associated works to an ensuite bathroom. It also includes a sum of $755 for legal fees, the application filing fee and other costs associated with the cost of making the application.

3 Before proceeding, it is necessary to state that Commissioners do not have the delegation to award costs associated with the making of an application.

4 The tree is question was a Camphor Laurel growing adjacent to the boundary fence between the two properties and approximately 1.5 m from the applicants’ ensuite bathroom. Photographic evidence tendered by the applicants shows the tree reduced to a stump with the remaining part on the ground. The tree was said by the applicants to be some 5-6 years old and was there when the respondent purchased his property. The tree removal appears to have taken place after the 11^th June 2010.

5 Between the directions hearing and the on-site hearing, the respondent had the stump removed to prevent any further growth. Section 4(4) of the Act states that a tree that is removed following damage or injury that gave rise to an application under Part 2 is still taken to be situated on the land for the purposes of the application.

6 The basis of this application is that in May 2010 a toilet in the applicants’ ensuite bathroom became blocked. A plumber that the applicants had used previously inspected the problem on the afternoon of 24 May. Based on what he saw he advised that the blockage was likely to be caused by tree roots.

7 The plumber returned the next day (a Tuesday) and took a number of actions to rectify the problem. These actions included water jetting, inspection with CCTV and excavation of certain sections of plumbing. Roots of the Camphor Laurel were found in the PVC pipes and enough of the pipe…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v Grabovac

Details

AGLC: Baker v Grabovac [2010] NSWLEC 1289
Case: [2010] NSWLEC 1289
Decision Date: 21 October 2010

CaseChat Overview and Summary

The applicants in this case, G and E Baker, sought compensation from D Grabovac for damage caused to their property by a tree on the respondent's property. The applicants were seeking a total of $12,225, which included plumbing costs of $11,470 for the removal and replacement of blocked sewer pipes and associated works to an ensuite bathroom, as well as $755 for legal fees, the application filing fee, and other costs. The tree in question was a Camphor Laurel growing adjacent to the boundary fence between the two properties and approximately 1.5 meters from the applicants' ensuite bathroom. The applicants claimed that the tree roots caused a blockage in their sewer, leading to the need for extensive plumbing works.

The legal issues before the court were whether the tree on the respondent's property had caused damage to the applicants' property, and if so, how much compensation, if any, the respondent should pay. The court had to consider the evidence presented by the applicants and the respondent, as well as relevant legislation, including the Trees (Disputes Between Neighbours) Act 2006. The court also had to take into account any contributing factors to the damage and the adequacy of the notice given to the respondent.

The court found that the tree on the respondent's property had indeed caused damage to the applicants' property, as evidenced by the photographic evidence and the roots retrieved from the blocked pipes. However, the court also noted that the applicants had admitted that the plumber advised them that the joins between the PVC pipes had not been appropriately sealed when they were installed. Given this contributing factor, the court considered that the respondent should be responsible for 40% of the costs that the applicants had proven to have been paid for the plumbing works. The court determined that the respondent should pay the applicants $2800 within 60 days of the date of the orders.

In conclusion, the Land and Environment Court of New South Wales found in favour of the applicants in part, ordering the respondent to pay $2800 in compensation for the damage caused by the tree on his property. The court took into account the evidence presented, the relevant legislation, and any contributing factors to the damage when making its decision.

Orders